Exhibit 10 (n)
LOAN AGREEMENT
among
BAYSHORE LANDING, LLC, a Florida limited liability company,
BAYSHORE RAWBAR, LLC, a Florida limited liability company and
BAYSHORE RESTAURANT, LLC, a Florida limited liability company
Collectively, as Borrowers
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Lender
As of August 19, 2004
LOAN AGREEMENT
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This Loan Agreement (this "Agreement ") is entered into as of August
19, 2004 among WACHOVIA BANK, NATIONAL ASSOCIATION ("Lender"), BAYSHORE LANDING,
LLC, a Florida limited liability company, BAYSHORE RAWBAR, LLC, a Florida
limited liability company and BAYSHORE RESTAURANT, LLC, a Florida limited
liability company (collectively, "Borrowers" and individually, a "Borrower").
RECITALS:
1. Borrowers have requested Lender to make an acquisition, construction
and term loan to Borrowers in the principal amount of $13,275,000.00 (the
`Loan") for the purposes set forth in this Agreement. .
2. The Loan is evidenced by a Promissory Note in the original principal
amount of $13,275,000.00 (the "Note"), made by Borrowers, jointly and severally,
payable to the order of Lender and bearing the same date as this Agreement.
3. The Note is secured by, inter alia, a Leasehold Mortgage and
Security Agreement (the `Mortgage"), made by Borrowers in favor of Lender and
bearing the same date as this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable considerations, the
receipt and sufficiency of which Lender and Borrowers hereby acknowledge, Lender
and Borrowers agree that the foregoing recitals are true and correct and
incorporated herein and further agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
Section 1.1. Certain Definitions. As used herein, the following terms
have the meanings indicated:
(1) "Acquisition Loan" means the portion of the Loan in the amount of
$10,050,000.00 to finance acquisition of the Mortgaged Property by Borrowers.
(2) "Advance Request" has the meaning assigned in Section 2.3(1).
(3) "Advances" means advances of the Loan proceeds subject to the terms
and conditions of this Agreement.
(4) "Affiliate" means (a) any corporation in which any Borrower or any
general partner, shareholder, director, officer, member, or manager of any
Borrower directly or indirectly owns or controls more than ten percent (1 0%) of
the beneficial interest, (b) any
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partnership, joint venture or limited liability company in which any Borrower or
any general partner, shareholder, director, officer, member, or manager of any
Borrower is a partner, joint venturer or member, (c) any trust in which any
Borrower or any general partner, shareholder, director or officer of any
Borrower is a trustee or beneficiary, (d) any entity of any type which is
directly or indirectly owned or controlled by any Borrower or any general
partner, shareholder, director, officer, member or manager of any Borrower, (e)
any general partner, shareholder, director, officer, member or manager of any
Borrower, (1) any Person related by birth, adoption or marriage to any general
partner, shareholder, director, officer, member or manager of any Borrower, or
(g) any Borrower Party.
(5) "Agreement" means this Loan Agreement, as amended from time to
time.
(6) "Architect" has the meaning set forth in Schedule 2.2.
(7) "Architect's Contract" has the meaning set forth in Schedule 2.2.
(8) "Assignment of Leases and Rents" means the Assignment of Leases and
Rents, executed by Borrowers for the benefit of Lender, and pertaining to leases
of space in the Mortgaged Property.
(9) "Bankruptcy Party" has the meaning assigned in Section 9.16.
(10) "Bayshore Landing" means Bayshore Landing, LLC, a Florida limited
liability company.
(11) "Bayshore Rawbar" means Bayshore Rawbar, LLC, a Florida limited
liability company.
(12) "Bayshore Restaurant" means Bayshore Restaurant, LLC, a Florida
limited liability company.
(13) "Bonds" has the meaning assigned in Section 8.30.
(14) "Borrower Party" means each Guarantor, and each member and each
manager of each Borrower.
(15) "Budget" means the detailed line item budget of Direct Costs and
Indirect Costs attached hereto as Schedule 1.1 (15), and showing the total costs
for each line item and the amount of each line item to be funded from the
Construction Loan and/or Borrowers' equity, as the same may be revised from time
to time with the written approval of Lender.
(16) "Business Day" means a day other than a Saturday, a Sunday, or a
legal holiday on which national banks located in the State of New York are not
open for general banking business.
(17) "Christoph Trusts" means those trusts created under that certain
Trust Agreement of the Christoph Family Trust dated March 19, 1997 by and
between Xxxxxx X. Xxxxxxxxx, Xx. as Grantor and Xxxxxx X. Xxxxxxxxx, Xx. and
Xxxxxx X. XxXxxxxx as Trustees
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(18) "City" means the City of Miami, a municipal corporation of the
State of Florida.
(19) "City Lease" as described on Schedule 1.1 (19) attached hereto.
(20) "Closing Date" means August 19, 2004.
(21) "Closing Site Assessments and Environmental Documents" as
described on Schedule 1.1 (21) attached hereto.
(22) "Completion Conditions" has the meaning assigned in Section 8.23.
(23) "Completion Date" means August 19, 2005 with respect to all
portions of the Project except for the improvements to be made under the
Restaurant Sublease, and February 19, 2006 with respect to the improvements to
be made under the Restaurant Sublease.
(24) "Construction Contract" has the meaning set forth in Schedule 2.2.
(25) "Construction Documents" means the Construction Contract, the
Architect's Contract and all other present and future construction contracts,
contracts with architects, engineers or other design professionals, the Plans
and Specifications, all present and future drawings, budgets, bonds and other
agreements pertaining to construction of the Project, and any and all
engineering, soil and other reports and studies and all surveys pertaining
thereto.
` (26) "Construction Lien Law" means Florida Statutes Chapter 713, Part
I, as same may be amended from time to time.
(27) "Construction Loan" means the portion of the Loan in the amount of
$3,225,000.00 to finance construction of the Project.
(28) "Construction Period" means the period of time commencing on the
Closing Date and ending on the Completion Date.
(29) "Debt " means, for any Person, without duplication: (a) all
indebtedness of such Person for borrowed money, for amounts drawn under a letter
of credit, or for the deferred purchase price of property for which such Person
or its assets is liable, (b) all unfunded amounts under a loan agreement, letter
of credit, or other credit facility for which such Person would be liable, if
such amounts were advanced under the credit facility, (c) all amounts required
to be paid by such Person as a guaranteed payment to partners or a preferred or
special dividend, including any mandatory redemption of shares or interests, (d)
all indebtedness guaranteed by such Person, directly or indirectly, (e) all
obligations under leases that constitute capital leases for which such Person is
liable, (f) and all obligations of such Person under interest rate swaps, caps,
floors, collars and other interest hedge agreements, in each case whether such
Person is liable contingently or otherwise, as obligor, guarantor or otherwise,
or in respect of which obligations such Person otherwise assures a creditor
against loss.
(30) "Debt Service Coverage Ratio" means the ratio of Borrowers'
consolidated (a) (i) net income, plus (ii) depreciation and amortization
expense, plus (iii) interest
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expense, minus (iv) unfinanced capital expenditures, minus (v) distributions,
all divided by (b) paid current maturities of long term debt (including capital
leases) plus interest expense, all as determined in accordance with GAAP.
(31) "Default Rate" means the maximum rate of interest allowed by
applicable law.
(32) "Development Agreement" means any agreements now or hereafter
existing with the City of Miami or the County of Miami- Dade or any providing
utility company or authority relating to the Project.
(33) "Direct Costs" means direct construction costs incurred by
Borrowers in connection with the construction of the Project, as itemized in the
Budget, as the same may be revised from time to time with the written approval
of Lender.
(34) "Entity Guarantors" means, collectively, HMG/Courtland
`Properties, Inc., a Delaware corporation, the Christoph Family Trust FBO Xxxxxx
Xxxxxxxxx, Xx. and the Christoph Family Trust FBO Xxxxxx Xxxxxxxxx. Each of such
Entity Guarantors is individually referred to as an "Entity Guarantor."
(35) "Environmental Laws" has the meaning assigned in Article 4.
(36) "Equity Requirement" means an amount equal to the greater of (i)
$1,075,000.00 or (ii) twenty- five percent (25%) of the Direct Costs or (iii)
the amount by which in the reasonable opinion of Lender and Lender's Inspector
the aggregate of Direct Costs set forth in the Budget exceeds the amount of the
Construction Loan. Should the Direct Costs not exceed $4,300,000.00, the
Construction Loan shall be reduced to an amount equal to seventy-five percent
(75%) of the reduced Direct Costs, and the equity requirement shall be the
difference between the Direct Costs and the Construction Loan.
(37) "Event of Default" has the meaning assigned in Article 9.
(38) "Excusable Delays" means unusually adverse weather conditions
which have not been taken into account in the construction schedule for the
Project; fire, earthquake or other acts of God; strike, lockout, acts of public
enemy, riot or insurrection or any unforeseen circumstances or events (except
financial circumstances or events or matters which may be resolved by the
payment of money) beyond the control of any Borrower, not to exceed, except as
otherwise agreed to by Lender in Lender's sole and absolute discretion, 15
consecutive days in any one instance, or more than 30 days in the aggregate,
provided Borrowers shall notify Lender in writing within 5 days after any such
occurrence.
(39) "General Contractor" has the meaning set forth in Schedule 2.2.
(40) "Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles as recognized by the American Institute
of Certified Public Accountants and the Financial Accounting Standards Board, as
in effect from time to time in the United States, consistently applied.
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(41) "Guarantors" means each Person now or hereafter executing a
Guaranty, including initially the Entity Guarantors and the Individual
Guarantor.
(42) "Guaranty" means the instruments of guaranty now or hereafter in
effect from a Guarantor to Lender.
(43) "Hazardous Materials" has the meaning assigned in Article 4.
(44) "Hedge Documents" means, collectively, that certain ISDA Master
Agreement between Bayshore Landing and Lender, Schedule to the Master Agreement
between Bayshore Landing and Lender and all applicable confirmations relating
thereto, all of which are dated August ___, 2004.
(45) "Indirect Costs" means costs, other than Direct Costs, incurred by
Borrowers in connection with the Project, as itemized in the Budget, as the same
may be revised from time to time with the written approval of Lender.
(46) "Individual Guarantor" means Xxxxxx Xxxxxxxxx, Xx., individually.
(47) "Lender's Inspector" has the meaning assigned such term in Section
2.2(6).
(48) "LIBOR Rate" means for any day the rate for 1 month U.S. dollar
deposits as reported on Telerate page 3750 as of 11:00 a.m., London time, on
such day, or if such day is not a London business day, then the immediately
preceding London business day (or if not so reported, then as determined by
Lender from another recognized source or interbank quotation).
(49) "Lien" means any interest, or claim thereof, in the Mortgaged
Property securing an obligation owed to, or a claim by, any Person other than
the Borrowers, whether such interest is based on common law, statute or
contract, including the lien or security interest arising from a deed of trust,
mortgage, assignment, encumbrance, pledge, security agreement, conditional sale
or trust receipt or a lease, consignment or bailment for security purposes. The
term "Lien" shall include reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting the Mortgaged Property.
(50) "Loan" means the loan in the aggregate amount of $13,275,000 to be
made by Lender to Borrowers under this Agreement and all other amounts secured
by the Loan Documents.
(51) "Loan Documents" means: (a) this Agreement, (b) the Note, (c) each
Guaranty, (d) the Hedge Documents, (e) the Mortgage, (f) the Assignment of
Leases and Rents, (g) Uniform Commercial Code financing statements, (h) such
assignments of management agreements, contracts and other rights as may be
required by Lender, (i) all other documents evidencing, securing, governing or
otherwise pertaining to the Loan, and (j) all amendments, modifications,
renewals, substitutions and replacements of any of the foregoing.
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(52) "Maturity Date" means the earlier of (a) (i) August 19, 2020 if
the Completion Conditions are satisfied by the Completion Date, and no uncured
Event of Default then exists, or (ii) August 19, 2005 if the Completion
Conditions are not satisfied by the Completion Date or an uncured Event of
Default then exists, or (b) any earlier date on which the entire Loan is
required to be paid in full, by acceleration or otherwise, under this Agreement
or any of the other Loan Documents.
(53) "Mortgage" means the Leasehold Mortgage and Security Agreement,
executed by Borrowers in favor of Lender and covering the Mortgaged Property.
(54) "Mortgaged Property" means, without limitation, Bayshore Landing's
leasehold interest in the real property legally described on Schedule A attached
hereto, all improvements, structures, docks, piers and all other facilities now
or hereafter located thereon, all easements, licenses, leases, subleases and
other rights appurtenant thereto, the businesses known as the "Coconut Grove
Marina" and "Monty's Restaurants" located in Coconut Grove, Florida, all
amenities, fixtures, and personal property appurtenant thereto, Bayshore
Landing's leasehold interest in the City Lease, Bayshore Rawbar's leasehold
interest in the Rawbar Sublease and Bayshore Restaurant's leasehold interest in
the Restaurant Sublease.
(55) "Note" means the Promissory Note of even date, in the stated
principal amount of $13,275,000.00, executed by Borrowers jointly and severally,
and payable to the order of Lender in evidence of the Loan.
(56) "Permanent Period" means the period of time commencing on August
20, 2005 and ending on the Maturity Date.
(57) "Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment trust,
government or any agency or political subdivision, thereof, or any other form of
entity
(58) "Plans and Specifications" means the final plans and
specifications, including without limitation all maps, sketches, diagrams,
surveys, drawings and lists of materials, for the construction of the Project,
to prepared by the Architect and subject to the review by and approval of
Lender, and any and all modifications thereof made with the written approval of
Lender.
(59) "Potential Default" means the occurrence of any event or
condition which, with the giving of notice, the passage of time, or both, would
constitute an Event of Default.
(60) "Project" means the construction on the Mortgaged Property of the
improvements described in the Plans and Specifications.
(61) "Rawbar Sublease" means that certain sublease agreement of even
date herewith between Bayshore Landing, as lessor, and Bayshore Rawbar, as
lessee.
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(62) "Restaurant Sublease" means that certain sublease agreement of
even date herewith between Bayshore Landing, as lessor, and Bayshore Restaurant,
as lessee.
(63) "Retainage" means the greater of (a) 10% of Direct Costs actually
incurred by Borrowers for work in place as part of the Project, as certified
from time to time by Lender's Inspector, or (b) the amount actually held back by
Borrowers from the General Contractor and each subcontractor and supplier
engaged in the construction of the Project.
(64) "Single Purpose Entity" shall mean a Person (other than an
individual, a government, or any agency or political subdivision thereof), whose
sole business is owning the Mortgaged Property (or applicable portion thereof),
and that conducts business only in its own name, does not engage in any business
or have any assets unrelated to the Mortgaged Property (other than cash and
investment grade securities), does not have any indebtedness other than as
permitted by this Agreement, has its own separate books, records, and accounts
(with no commingling of assets), holds itself out as being a Person separate and
apart from any other Person, and observes corporate and partnership formalities
independent of any other entity, and which otherwise constitutes a single
purpose entity as determined by Lender.
(65) "Site Assessment" means an environmental engineering
report for the Mortgaged Property prepared by an engineer engaged by Lender at
Borrowers' expense, and in a manner satisfactory to Lender, based upon an
investigation relating to and making appropriate inquiries concerning the
existence of Hazardous Materials on or about the Mortgaged Property, and the
past or present discharge, disposal, release or escape of any such substances,
all consistent with good customary and commercial practice.
(66) "State" means the State of Florida.
(67) "State Lease" as described on Schedule I .1 (67) attached hereto.
(68) "State Waivers" as described on Schedule 1.1 (68) attached hereto.
(69) "Title Insurer" means First American Title Insurance Company.
(70) "Verified Project Costs" means the aggregate, from time to time,
of (a) Indirect Costs actually incurred by Borrowers and approved for funding by
Lender, and (b) Direct Costs actually incurred by Borrowers for work in place as
part of the Project, as certified by Lender's Inspector, from time to time,
pursuant to the provisions of this Agreement, minus a sum equal to the aggregate
of (i) the portion of the Equity Requirement which Borrowers are required to
have invested in the Project from time to time pursuant to this Agreement, and
(ii) the Retainage.
ARTICLE 2.
LOAN TERMS; ADVANCES
Section 2.1. Acquisition Loan. The Acquisition Loan shall be funded in
one Advance to Borrowers on the Closing Date provided the conditions as set
forth on Schedule 2.1 attached
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have been satisfied. The proceeds of the Acquisition Loan shall be used by
Borrowers to finance the acquisition of the Mortgaged Property.
Section 2.2. Construction Loan.
(1) Advances. Subject to compliance by Borrowers with the terms and
conditions of this Agreement, including without limitation, satisfaction of the
conditions set forth on Schedule 2.2 attached hereto, Lender shall make Advances
to Bayshore Landing of the Construction Loan during the Construction Period for
Direct Costs and Indirect Costs; provided, however, that in no event shall
Lender be obligated to make disbursements of the Construction Loan in excess of
Verified Project Costs. All Direct Costs and Indirect Costs must, to the extent
possible, be verified by fixed cost contracts, and all items of cost reasonably
incapable of verification by means of fixed cost contracts must be supportable
as reasonable estimates.
(2) Equity Requirement. Prior to any Advance by Lender of the
Construction Loan, Borrowers shall invest an amount equal to the Equity
Requirement into the construction of the Project in accordance with the Budget.
The Equity Requirement shall remain invested in the Project for the term of the
Loan and Borrowers agree that no portion of the Equity Requirement will be
reimbursed directly or indirectly without Lender's prior written consent. At the
request of Lender, the amount of the Equity Requirement shall be deposited with
Lender and disbursed by Lender for construction of the Project in accordance
with the terms and conditions of this Agreement.
(3) Retainage. Lender shall retain from each Advance of the
Construction Loan an amount equal to the Retainage. The Retainage shall be
released by Lender, provided that no Event of Default then exists hereunder or
under any of the other Loan Documents, at the time of, and subject to the
conditions set forth on Schedule 2.2 with respect to, the final Advance of the
Construction Loan.
(4) Deficiency in Loan Amount. If, prior to any Advance of the
Construction Loan, for any reason, Lender shall determine in its sole discretion
that the actual cost to complete construction of the Project exceeds the
undisbursed balance of the Construction Loan, Lender may require Borrowers to
deposit with Lender within seven (7) days after written notice from Lender the
projected deficiency. At Lender's option, no Advances of the Construction Loan
shall be made until Borrowers have fully complied with this requirement. All
such deposited funds shall be additional security for the Loan and at Lender's
option, shall be disbursed, in accordance with the provisions of this Agreement,
to pay costs to complete construction of the Project before any further Advances
of the Construction Loan.
(5) Contingency Reserve. Advances from that portion of the Construction
Loan proceeds allocated to "contingency" (the "Contingency Reserve") on the
Budget, if any, may be disbursed in Lender's sole and absolute discretion for
payment of Direct Costs or Indirect Costs as documented by paid receipts and
otherwise as provided herein. Lender may determine in its absolute discretion
whether to pay interest from the Contingency Reserve.
(6) Lender's Inspector. Lender shall have the right to retain, at
Borrowers' expense, any individual designated by Lender from time to time
(`Lender's Inspector") to act
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as Lender's consultant in connection with the Construction Loan and the
construction of the Project, to review and advise Lender with respect to the
Construction Documents, and other matters related to the design, construction,
operation and use of the Project, to monitor the progress of construction, and
to review Advance Requests and change orders submitted hereunder. The fees and
expenses of Lender's Inspector shall be due and payable by Borrowers as provided
for herein or otherwise on demand. Borrowers shall provide to Lender and
Lender's Inspector facilities commonly made available by responsible contractors
for the inspection of the Project, and to afford full and free access by Lender
and Lender's Inspector to all Construction Documents. Borrowers acknowledge that
(a) Lender's inspector has been retained by Lender to act as a consultant, and
only as a consultant, to Lender in connection with the construction of the
Project, (b) Lender's Inspector shall in no event have any power or authority to
make any decision or to give any approval or consent or to do any other thing
which is binding upon Lender and any such purported decision, approval, consent
or act by Lender's Inspector on behalf of Lender shall be void and of no force
or effect, (c) Lender reserves the right to make any and all decisions required
to be made by Lender under this Agreement, in its sole and absolute discretion,
and without in any instance being bound or limited in any manner whatsoever by
any opinion expressed or not expressed by Lender's Inspector to Lender or any
other person with respect thereto, and (d) Lender reserves the right in its,
sole and absolute discretion to replace Lender's Inspector with another
inspector at any time and without prior notice to or approval by Borrowers.
(7) No Warranty by Lender. Nothing contained in this Agreement or any
other Loan Document shall constitute or create any duty on or warranty by Lender
regarding (a) the accuracy or reasonableness of the Budget, (b) the proper
application by Borrowers, General Contractor or any subcontractor of the Loan
proceeds, (c) the quality or condition of the Project, or (d) the competence or
qualifications of the General Contractor or any other party furnishing labor or
materials in connection with the construction of the Project. ` Each Borrower
(i) acknowledges that it has not relied and will not rely upon any experience,
awareness or expertise of Lender regarding the aforesaid matters; and (ii) shall
indemnify, hold harmless, and defend Lender from any costs, expenses, damages,
judgments or liabilities, including without limitation, attorneys' fees,
arbitration fees, and expert witness fees, arising from or connected with (A)
such matters, (B) payment or non-payment for labor or materials furnished for
construction of the Project, (C) any claims of mechanics or materialmen or (D)
any action or inaction by any Borrower in connection with the foregoing.
Section 2.3. Procedures for Advances of the Construction Loan
(1) Advance Requests. For each request for an Advance, Borrowers shall
submit to Lender, at least five (5) business days prior to the requested date of
disbursement, a completed written disbursement request (each, an "Advance
Request") in such form and detail as required by Lender, together with a check
in the amount of the inspection fee set forth in Section 2.3(2) hereof. All
Advances of the Construction Loan shall be made from time to time as
construction progresses upon written application of Borrowers pursuant to an
Advance Request. Borrowers shall file Advance Requests with Lender no more
frequently than monthly, covering work performed since the prior Advance
Request. Each Advance Request shall certify in detail, acceptable to Lender, the
cost of the labor that has been performed and the materials that have been
incorporated into the Project and all Indirect Costs that have been incurred
since
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the date of the previous Advance, and shall be accompanied by such supporting
data as Lender may require, including, without limitation, receipts, vouchers,
invoices, waivers of mechanic's and materialmen's liens, and AlA Forms G702 and
G703 certified by the General Contractor and, if required by Lender, the
Architect or engineer for the Project. The proceeds of each Advance shall be
used by Borrowers solely to pay or as reimbursement for the obligations for
which the Advance is sought. Each Advance Request shall constitute a
representation by Borrowers that the work done and the materials supplied to the
date thereof are in accordance with the Plans and Specifications; that the work
and materials for which payment is requested have been physically incorporated
into the Project; that the value is as stated; that the work and materials
conform with all applicable rules and regulations of the public authorities
having jurisdiction; that payment for the items described in such Advance
Request has been made or will be made with the proceeds of the Advance for which
the Advance Request was submitted; that such Advance Request is consistent with
the Budget; that the proceeds of the previous Advance have been actually paid by
Borrowers in accordance with the approved Advance Request for such previous
Advance; and that no Event of Default or event which, with the giving of notice
or the passage of time, or both, would constitute an Event of Default has
occurred and is continuing.
(2) Lender's Inspector. Upon receiving each Advance Request, Lender's
Inspector will determine (a) whether the work completed to the date of such
Advance Request has been done satisfactorily and in accordance with the Plans
and Specifications, (b) the percentage of construction of the Project completed
as of the date of such Advance Request, (c) the Direct Costs actually incurred
for work in place as part of the Project as of the date of such Advance Request,
(d) the actual sum necessary to complete construction of the Project in
accordance with the Plans and Specifications, and (e) the amount of time from
the date of such Advance Request which will be required to complete construction
of the Project in accordance with the Plans and Specifications. Borrowers shall
pay a reasonable inspection fee to Lender upon submission of each Advance
Request. All inspections by or on behalf of Lender shall be solely for the
benefit of Lender, and Borrowers shall have no right to claim any loss or damage
against Lender or Lender's Inspector arising from any alleged (i) negligence in
or failure to perform such inspections, (ii) failure to monitor Advances of the
Construction Loan or the progress or quality of construction, or (iii) failure
to otherwise properly administer the Construction Loan.
(3) Disbursement of Advances. At Lender's option, Lender may fund
Advances of the Construction Loan directly into a separate construction
disbursement account or other account of Bayshore Landing with Lender, to
Bayshore Landing directly, to a title insurance company or other third party,
directly to the General Contractor, subcontractor, materialmen or other
suppliers providing labor, services or materials in connection with the
construction of the Project, or jointly to Borrower(s) and any such person.
Lender shall have no obligation after making Advances of the Construction Loan
in a particular manner to continue to make Advances of the Construction Loan in
that manner. Notwithstanding the foregoing, Lender's records of any Advance of
the Construction Loan made pursuant to this Agreement shall, in the absence of
manifest error, be deemed correct and acceptable and binding upon Borrowers.
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(4) Stored Materials. Lender shall not be required to make Advances of
the Construction Loan for costs incurred by Borrowers with respect to materials
stored on or off the Mortgaged Property unless Lender shall, in its sole
discretion, deem it advisable to do so. If Lender elects to make an Advance of
the Construction Loan for stored materials, all stored materials must be
incorporated into the Project within forty five (45) days of Borrowers' Advance
Request regarding such materials, and the following additional conditions shall
apply: (a) copies of all invoices relating to such stored materials and a stored
materials inventory sheet shall be submitted with the Advance Request; (b) with
respect to materials stored on the Mortgaged Property, such materials shall be
adequately secured, as determined by Lender's Inspector; and (c) with respect to
materials stored off the Mortgaged Property, such materials must be (i)
adequately stored at a bonded warehouse, (ii) insured under an Inland Marine
Policy naming Lender as an additional insured, (iii) subject to a first priority
lien held by Lender, and (iv) subject to inspection by Lender's Inspector.
Lender may impose such additional conditions and requirements as it deems
appropriate in its sole discretion.
Section 2.4. Interest Rate; Late Charge.
(1) Interest Rate. The outstanding principal balance of the Loan
(including any amounts added to principal under the Loan Documents) shall bear
interest at a rate of interest equal to 2.45% (i.e., 245 basis points) per annum
in excess of the LIBOR Rate. Interest shall be computed on the basis of a
fraction, the denominator of which is three hundred sixty (360) and the
numerator of which is the actual number of days elapsed from the date of the
initial advance or the date on which the immediately preceding payment was due.
(2) Late Charge. If Borrowers fail to pay any installment of interest
or principal within five (5) days after the date on which the same is due,
Borrowers shall pay to Lender a late charge on such past due amount, as
liquidated damages and not as a penalty, five percent (5%) of such amount.
Borrowers acknowledge that the late charge imposed herein represents a
reasonable estimate of the expenses of Lender incurred because of such lateness.
Acceptance by Lender of any late payment without an accompanying late charge
shall not be deemed a waiver of Lender's right to collect such late charge or to
collect a late charge for any subsequent late payment received. Borrowers
further acknowledge that the provisions herein shall not be construed to provide
a grace period for payments of installments of principal or interest.
(3) Default Rate. While any Event of Default exists, the Loan shall
bear interest at the Default Rate.
Section 2.5. Terms of Payment. The Loan shall be payable as follows:
(1) Construction Period. During the Construction Period, monthly
payments of accrued and unpaid interest on the outstanding principal balance of
the Loan from time to time shall be due and payable commencing on September 1 9,
2004 and continuing on the I 9th day of each successive month thereafter through
and including August 19, 2005.
(2) Permanent Period. During the Permanent Period, principal and
interest shall be due and payable commencing on September 19, 2005 and
continuing on the 19th day of
11
each successive month thereafter in consecutive monthly installments in an
amount equal to the sum of (a) all then accrued and unpaid interest, plus (b) a
principal payment in the amount set forth in the Repayment and Prepayment
Schedule attached hereto as Schedule 2.5(2).
(3) Maturity. On the Maturity Date, Borrowers shall pay to Lender all
outstanding principal, accrued and unpaid interest, and any other amounts due
under the Loan Documents.
(4) Prepayment. Upon not less than fifteen (15) days' prior written
notice to Lender, Borrowers may prepay the Loan, in whole but not in part,
without prepayment premium, provided Bayshore `Landing shall pay to Lender any
and all amounts due under the Hedge Documents in connection with such
prepayment, including without limitation, breakage or unwind costs or other
losses incurred by Lender in order to break its underlying swap contract with
the financial institution provided such swap in connection with the Loan. If the
Loan is accelerated for any reason, Bayshore Landing shall likewise pay to
Lender any and all amounts due under the Hedge Documents, including without
limitation, breakage or unwind costs or other such losses.
(5) Application of Payments. All payments received by Lender under the
Loan Documents shall be applied: first, to any unpaid and delinquent fees and
expenses due to Lender under the Loan Documents; second, to any Default Rate
interest or late charges; third, to accrued and unpaid interest; and fourth, to
the principal sum and other amounts due under the Loan Documents.
(6) Time and Place of Payments. Borrowers shall make each payment of
principal of and interest on the Loan and fees hereunder not later than 12:00
noon (local time Miami, Florida) on the date when due, without set off,
counterclaim or other deduction, in immediately available funds to Lender at its
address as directed by Lender. Whenever any payment of principal of, or interest
on, the Loan or of fees shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
Section 2.6. Security. The Loan, Bayshore Landing's obligations under
the Hedge Documents and Borrowers' obligations under the other Loan Documents
shall be secured by (1) the Mortgage creating a first lien on the Mortgaged
Property, (2) the Assignment of Rents and Leases and (3) the other Loan
Documents.
ARTICLE 3.
INSURANCE, CONDEMNATION, AND IMPOUNDS
Section 3.1. Insurance. Borrowers shall maintain insurance as follows:
(1) Casualty; Business Interruption. Borrowers shall (a) keep the
Mortgaged Property insured against damage by fire and the other hazards
including windstorm covered by a standard extended coverage and all-risk
insurance policy for the full insurable value thereof (without reduction for
depreciation or co-insurance), (b) during construction of the Project or any
12
other improvements on the Mortgaged Property, maintain "all-risk" builders risk
insurance which must include windstorm, hail damage, fire and vandalism
(non-reporting Completed Value with Special Cause of Loss form), in an amount
not less than the completed replacement value of the improvements under
construction, endorsed to provide that occupancy by any person shall not void
such coverage and (c) maintain such other casualty insurance as reasonably
required by Lender. Borrowers shall keep the Mortgaged Property insured against
loss by flood if the Mortgaged Property is located in an area identified by the
Federal Emergency Management Agency as an area having special flood hazards in
an amount at least equal to the principal balance outstanding under the Loan
from time to time. Borrowers shall `maintain use and occupancy insurance
covering, as applicable, rental income or business interruption, with coverage
in an amount not less than twelve (12)-months anticipated gross rental income or
gross business earnings, as applicable in each case, with a minimum of
$3,600,000 in coverage and no co-insurance, attributable to the Mortgaged
Property. Borrowers shall not maintain any separate or additional insurance
which is contributing in the event of loss unless it is properly endorsed and
otherwise satisfactory to Lender in all respects. The proceeds of insurance
paid, on account of any damage or destruction to the Mortgaged Property shall be
paid to Lender to be applied as provided in Section 3.2.
(2) Liability. Borrowers shall maintain (a) commercial general
liability insurance with respect to the Mortgaged Property providing for limits
of liability of not less than $1 ,000,000 with an additional $4,000,000 umbrella
coverage for both injury to or death of a person and for property damage per
occurrence, and (b) other liability insurance as reasonably required by Lender.
(3) Form and Quality. All insurance policies shall be endorsed in form
and substance acceptable to Lender to name Lender as an additional insured, loss
payee or mortgagee thereunder, as its interest may appear, with loss payable to
Lender, without contribution, under a standard New York (or local equivalent)
mortgagee clause. All such insurance policies and endorsements shall be fully
paid for and contain such provisions and expiration dates and be in such form
and issued by such insurance companies licensed to do business in the State,
with a rating of "A-IX" or better as established by Best's Rating Guide (or an
equivalent rating approved in writing by Lender). Each policy shall provide that
such policy may not be cancelled or materially changed except upon thirty (30)
days' prior written notice of intention of non-renewal, cancellation or material
change to Lender and fiat no act or thing done by any Borrower shall invalidate
any policy as against Lender. If Borrowers fail to maintain insurance in
compliance with this Section 3.1, Lender may obtain such insurance and pay the
premium therefor and Borrowers shall, on demand, reimburse Lender for all
expenses incurred in connection therewith. Borrowers shall assign the policies
or proofs of insurance to Lender, in such manner and form that Lender and its
successors and assigns shall at all times have and hold the same as security for
the payment of the Loan. Borrowers shall deliver copies of all original policies
certified to Lender by the insurance company or authorized agent as being true
copies, together with the endorsements required hereunder. The proceeds of
insurance policies coming into the possession of Lender shall not be deemed
trust funds, and Lender shall be entitled to apply such proceeds as herein
provided.
(4) Adjustments. Borrowers shall give immediate written notice of any
loss that exceeds $50,000 to the insurance carrier and to Lender. Each Borrower
hereby irrevocably
13
authorizes and empowers Lender, as attorney- in- fact for Borrowers coupled with
an interest, to make proof of loss, to adjust and compromise any claim under
insurance policies, to appear in and prosecute any action arising from such
insurance policies, to collect and receive insurance proceeds, and to deduct
therefrom Lender's expenses incurred in the collection of such proceeds.
Notwithstanding the foregoing, provided there is no Potential Default or Event
of Default, and provided further the casualty loss is fully insured, Borrowers
shall have the right to settle casualty claims of $500,000 or less, in which
event Borrowers shall keep Lender fully and immediately informed of any
settlement. Nothing contained in this Section 3.1 shall require Lender to incur
any expense or take any action hereunder.
Section 3.2. Use and Application of Insurance Proceeds. Lender shall
apply insurance proceeds as follows: `
(1) if the loss is less than or equal to $200,000, Lender shall apply
the insurance proceeds to restoration provided no Event of Default or Potential
Default exists, and Borrowers promptly commence and are diligently pursuing
restoration of the Mortgaged Property;
(2) if the loss exceeds $200,000 but is not more than $1,000,000,
Lender shall apply the insurance proceeds to restoration provided that at all
times during such restoration (a) no Event of Default or Potential Default
exists; (b) lender determines that there are sufficient funds available to
restore and repair the Mortgaged Property to a condition approved by Lender; (c)
Lender determines that the Debt Service Coverage Ratio covenant set forth in
Section 8.12 hereof during restoration will be maintained; (d) Lender determines
that restoration and repair of the Mortgaged Property to a condition approved by
Lender will be completed within six months after the date of loss or casualty
and in any event one (1) year prior to the Maturity Date; and (e) Borrowers
promptly commence and are diligently pursuing restoration of the Mortgaged
Property;
(3) if the conditions set forth above are not satisfied or the loss
exceeds the maximum amount specified in Subsection (2) above, in Lender's sole
discretion, Lender may apply any insurance proceeds it may receive to the
payment of the Loan or allow all or a portion of such proceeds to be used for
the restoration of the Mortgaged Property; and
(4) insurance proceeds applied to restoration will be disbursed on
receipt of satisfactory plans and specifications, contracts and subcontracts,
schedules, budgets, lien waivers and architects' certificates, and otherwise in
accordance with prudent commercial construction lending practices for
construction loan advances.
Section 3.3. Condemnation Awards. Borrowers shall immediately notify
Lender of the institution of any proceeding for the condemnation or other taking
of the Mortgaged Property or any portion thereof Lender may participate in any
such proceeding and Borrowers will deliver to Lender all instruments necessary
or required by Lender to permit such participation. Without Lender's prior
consent, Borrowers (1) shall not agree to any compensation or award, and (2)
shall not take any action or fail to take any action which would cause the
compensation to be determined. All awards and compensation to any Borrower for
the taking or purchase in lieu of condemnation of the Mortgaged Property or any
part thereof are hereby assigned to and
14
shall be paid to Lender. Borrowers authorize Lender to collect and receive such
awards and compensation, to give proper receipts and acquittances therefor, and
in Lender's sole discretion to apply the same toward the payment of the Loan,
notwithstanding that the Loan may not then be due and payable, or to the
restoration of the Mortgaged Property. Borrowers, upon request by Lender, shall
execute all instruments requested to confirm the assignment of the awards and
compensation to Lender, free and clear of all liens, charges or encumbrances.
Section 3.4. Impounds. At Lender's option exercisable at any time
during the term of the Loan, Borrowers shall deposit with Lender, monthly,
one-twelfth (1/12th) of the annual charges for ground or other rent, if any, and
real estate taxes, assessments and similar charges relating to the Mortgaged
Property, and for insurance premiums. At Lender's option , at or before the
initial advance of the Loan, Borrowers shall deposit with Lender a sum of money
which together with the monthly installments will be sufficient to make each of
such payments thirty (30) days prior to the date any delinquency or penalty
becomes due with respect to such payments. Deposits shall be made on the basis
of Lender's estimate from time to time of the charges for the current year
(after giving effect to any reassessment or, at Lender's election, on the basis
of the charges for the prior year, with adjustments when the charges are fixed
for the then current year). All funds so deposited shall be held by Lender,
without interest, and may be commingled with Lender's general funds. Borrowers
hereby grant to Lender a security interest in all funds so deposited with Lender
for the purpose of securing the Loan. While an Event of Default exists, the
funds deposited may be applied in payment of the charges for which such funds
have been deposited, or to the payment of the Loan or any other charges
affecting the security of Lender, as Lender may elect, but no such application
shall be deemed to have been made by operation of law or otherwise until
actually made by Lender. Borrowers shall furnish Lender with bills for the
charges for which such deposits are required at least thirty (30) days prior to
the date on which the charges first become payable. If at any time the amount on
deposit with Lender, together with amounts to be deposited by Borrowers before
such charges are payable, is insufficient to pay such charges, Borrowers shall
deposit any deficiency with Lender immediately upon demand. Lender shall pay
such charges when the amount on deposit with Lender is sufficient to pay such
charges and Lender has received a xxxx for such charges.
Section 3.5. Notices. Notwithstanding Section 11.1, all notices to
Lender under Sections 3.1 and 3.2 shall be addressed as follows:
Wachovia Bank, National Association
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000
ARTICLE 4.
ENVIRONMENTAL MATTERS
Section 4.1. Certain Definitions. As used herein, the following terms
have the meanings indicated:
(1) "Environmental Laws" means any federal, state or local law (whether
imposed by statute, or administrative or judicial order, or common law), now or
hereafter
15
enacted, governing health, safety, industrial hygiene, the environment or
natural resources, or Hazardous Materials, including, such laws governing or
regulating the use, generation, storage, removal, recovery, treatment, handling,
transport, disposal, control, discharge of, or exposure to, Hazardous
Materials.'
(2) "Hazardous Materials" means (a) petroleum or chemical products,
whether in liquid, solid, or gaseous form, or any fraction or by-product
thereof, (b) asbestos or asbestos-containing materials, (c) polychlorinated
biphenyls (pcbs), (d) radon gas, (e) underground storage tanks, (f) any
explosive or radioactive substances, (g) lead or lead-based paint, or (h) any
other substance, material, waste or mixture which is or shall be listed,
defined, or otherwise determined by any governmental authority to be hazardous,
toxic, dangerous or otherwise regulated, controlled or giving rise to liability
under any Environmental Laws.
(3) "Release" means and includes disposal, discharging, injecting,
spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, and the like, of any Hazardous Materials into or upon any land or water
or air, or otherwise entering into the environment.
Section 4.2. Representations and Warranties on Environmental Matters.
Except as set forth in the Closing Site Assessments and Environmental Documents:
(1) no Hazardous Material is now or to any Borrower's knowledge was formerly
used, stored, generated, manufactured, installed, disposed of, treated or
otherwise present at or about the Mortgaged Property or any property adjacent to
the Mortgaged Property (except for the sewage pump out facility currently on the
Mortgaged Property, any recycling facility now or hereafter located on the
Mortgaged Property, and cleaning and other products currently used in connection
with the routine maintenance, operation or repair of the Mortgaged Property, all
in full compliance with Environmental Laws); (2) all permits, licenses,
approvals and filings required by Environmental Laws have been obtained, and the
use, operation and condition of the Mortgaged Property does not, and to
Borrowers' knowledge did not previously, violate any Environmental Laws; (3) the
Mortgaged Property is presently free from contamination by Hazardous Materials,
and the Mortgaged Property and the activities conducted thereon do not pose any
significant hazard to human health or the environment or violate any applicable
Environmental Laws; (4) there is no evidence of any existing Release of
Hazardous Materials at the Mortgaged Property; (5) except for the sewage pump
out facility currently on the Mortgaged Property, any recycling facility now or
hereafter located on the Mortgaged Property, and cleaning and other products
currently used in connection with the routine maintenance, operation or repair
of the Mortgaged Property, all in full compliance with Environmental Laws, to
each Borrower's knowledge, there are no surface impoundments, lagoons, waste
piles, landfills, injection xxxxx, underground storage areas, tanks, storage
vessels, drums, containers or other man- made facilities which may have
accommodated Hazardous Materials on the Mortgaged Property. Neither any Borrower
nor any third persons have stored, placed, buried or released Hazardous
Materials on the Mortgaged Property, including the soil, surface water and
ground water; (6) to Borrowers' knowledge there has been no treatment, storage
or other Release of any Hazardous Materials on land adjacent or near to the
Mortgaged Property which may constitute a risk of contamination of the Mortgaged
Property or surface or ground water flowing to the Mortgaged Property; and (7)
no inspection, audit, inquiry or other investigation has been or is being
conducted by any governmental agency or other third person with respect to the
presence or discharge of Hazardous Materials at the Mortgaged
16
Property or the quality of the air, or surface or subsurface conditions at the
Mortgaged Property. Except as disclosed in the Closing Site Assessments and
Environmental Documents, no Borrower has received notice that any such
inspection, audit, inquiry or investigation is pending or proposed, nor has any
Borrower or to Borrowers' knowledge any previous owner or occupant of the
Mortgaged Property received any warning notice, notice of violation,
administrative complaint, judicial complaint or other formal or informal notice
alleging that Hazardous Materials have been stored or Re leased at the Mortgaged
Property or that conditions on the Mortgaged Property are in violation of any
Environmental Laws.
Section 4.3. Covenants on Environmental Matters.
(1) Each Borrower shall (a) comply strictly and in all respects with
applicable Environmental Laws; (b) notify Lender immediately upon Borrower's
discovery of any spill, discharge, other Release or presence of any Hazardous
Material at, upon, under, within, contiguous to or otherwise affecting the
Mortgaged Property that violates applicable Environmental Laws; (c) promptly
remove such Hazardous Materials and remediate the Mortgaged Property in full
compliance with Environmental Laws and in accordance with the recommendations
and specifications of an independent environmental consultant approved by Lender
as to how to achieve compliance with Environmental Laws; (d) promptly forward to
Lender copies of all orders, notices, permits, applications or other written
communications and reports in connection with any spill, discharge or other
Release of any Hazardous Material or any other matters relating to the
Environmental Laws or any similar laws or regulations, as they may affect the
Mortgaged Property or any Borrower; and (e) promptly advise Lender in writing of
any and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened by any governmental authority with
respect to the Mortgaged Property from time to time under any applicable
Environmental Laws.
(2) No Borrower shall cause, and each Borrower shall prohibit any other
Person within the control of such Borrower from causing, and shall use prudent,
commercially reasonable efforts to prohibit other Persons (including tenants)
from (a) causing any spill, discharge or other Release of any Hazardous
Materials at, upon, under, within or about the Mortgaged Property, (b) except in
full compliance with applicable Environmental Laws, causing the use, storage,
generation, manufacture, installation, or disposal of any Hazardous Materials
at, upon, under, within or about the Mortgaged Property or the transportation of
any Hazardous Materials to or from the Mortgaged Property (except for the sewage
pump out facility currently on the Mortgaged Property, any recycling facility
now or hereafter located on the Mortgaged Property, and cleaning and other
products currently used in connection with the routine maintenance, operation or
repair of the Mortgaged Property, all in full compliance with Environmental
Laws), (c) except for repair, upgrade or replacement of the existing fueling
facilities which are required by Environmental Laws or which are reasonably
prudent measures in the operation of such facility, installing any underground
storage tanks at the Mortgaged Property, or (d) conducting any activity that
requires a permit or other authorization under Environmental Laws, except that
Borrowers or Persons within Borrowers' employ may conduct activities that
require permits or other authorizations under Environmental Laws, provided such
activities are conducted in full compliance with applicable Environmental Laws.
17
(3) Without Lender's prior written consent, no Borrower shall enter
into any settlement, consent or compromise with respect to any Hazardous
Materials or pursuant to Environmental Laws which might, in Lender's reasonable
judgment, impair the value of Lender's security under the Mortgage; provided,
however, that Lender's prior consent shall not be necessary for Borrowers to
take any remedial action if ordered by a court of competent jurisdiction or if
required by applicable governmental authorities or if the presence of Hazardous
Materials at the Mortgaged Property poses an immediate significant threat to the
health, safety or welfare of any individual or otherwise requires an immediate
remedial response. In any event, Borrowers shall promptly notify Lender of any
action so taken.
(4) Borrowers shall provide to Lender, at Borrowers expense promptly
upon the written request of Lender from time to time, a Site Assessment or, if
required by Lender, an update to any existing Site Assessment, to assess the
presence or absence of any Hazardous Materials and the potential costs in
connection with abatement, cleanup or removal of any Hazardous Materials found
on, under, at or within the Mortgaged Property. Borrowers shall pay the cost of
no more than one such Site Assessment or update in any twelve (12) month period,
unless Lender's request for a Site Assessment is based on information provided
under this Article 4, a reasonable suspicion of Hazardous Materials at or near
the Mortgaged Property, a breach of representations under Section 4.2, or an
Event of Default, in which case any such Site Assessment or update shall be at
Borrowers' expense.
Section 4.4. intentionally omitted
Section 4.5. Allocation of Risks and Indemnity.
(1) As between Borrowers and Lender, all risk of loss associated with
non-compliance with Environmental Jaws, or with the presence of any Hazardous
Material at, upon, within, contiguous to or otherwise affecting the Mortgaged
Property, shall lie solely with Borrowers. Accordingly, Borrowers shall bear all
risks and costs associated with any loss (including any loss in value
attributable to Hazardous Materials), damage or liability therefrom, including
all costs of removal of Hazardous Materials or other remediation required by
Environmental Laws.
(2) Each Borrower hereby agrees to indemnify Lender and hold Lender and
its directors, officers, employees, successors and assigns harmless from and
against any and all claims, losses, damages (including all foreseeable and
unforeseeable consequential damages), liabilities, fines, penalties, charges,
interest, administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but not limited to
reasonable attorneys' fees and expenses), directly or indirectly resulting in
whole or in part from
(a) the presence, use, generation, treatment or storage on,
under or about the Mortgaged Property of any Hazardous Materials, or the
disposal or other Release of Hazardous Materials on, under or from the Mortgaged
Property;
18
(b) any claims made or threatened by any party against any
Borrower or with respect to the Mortgaged Property relating to Hazardous
Materials or Environmental Laws;
(c) the costs of any necessary inspection, audit, cleanup or
detoxification of the Mortgaged Property under any Environmental Laws, and the
preparation and implementation of any closure, remedial or other required plans,
consent orders, license applications or the like; or
(d) any activity carried on or undertaken on the Mortgaged
Property, whether prior to or during the term of the Loan, by any Borrower or
any predecessor in title or any employees, agents or contractors of any Borrower
or any predecessor in title, or any third persons at any time occupying or
present on the Mortgaged Property lawfully and with the permission of any
Borrower or a predecessor in title of any Borrower, in connection with the
handling, treatment, removal, storage, decontamination, clean-up, transport,
disposal or other Release of any Hazardous Materials at any time located or
present on, under or about the Mortgaged Property;
provided however, Borrowers shall not be liable under such
indemnification (i) to the extent such loss, liability, damage, claim, cost or
expense results solely from Lender's gross negligence or willful misconduct or
(ii) to the extent such loss, liability, damage, claim, cost or expense is
covered by insurance carried by Lender's receiver in possession of the Mortgaged
Property. Lender's receiver in possession of the Mortgaged Property shall
maintain liability insurance with limits equal to the lesser of $2,000,000 or
the limits required of Bayshore Landing under the terms of the City Lease, and
shall name Lender, Bayshore Landing and the City as additional insureds.
(3) Lender shall have the right to join and participate in, as a party
if it so elects, any legal proceedings or actions initiated in connection with
any matter for which it is indemnified under this Section 4.5 and to have its
reasonable attorneys' fees and expenses in connection therewith paid by
Borrowers, or be defended by Borrowers from and against any such matters.
(4) All sums paid and costs incurred by Lender with respect to any
matter indemnified against hereunder shall bear interest at the Default Rate
from the date so paid or incurred until reimbursed by Borrowers, and shall be
secured by the Mortgage and all other Loan Documents and shall be paid by
Borrowers to Lender not later than thirty (30) days after demand.
Borrowers' obligations under this Section 4.5 shall arise upon the
discovery of the presence of any Hazardous Material, whether or not any
governmental authority has taken or threatened any action in connection with the
presence of any Hazardous Material, and whether or not the existence of any such
Hazardous Material or potential liability on account thereof is disclosed in the
Site Assessment and shall continue notwithstanding the repayment of the Loan or
any transfer or sale of any right, title and interest in the Mortgaged Property
(by foreclosure, deed in lieu of foreclosure or otherwise).
19
Section 4.6. No Waiver. Notwithstanding any provision in this Article 4
or elsewhere in the Loan Documents, or any rights or remedies granted by the
Loan Documents, Lender does not waive and expressly reserves all rights and
benefits now or hereafter accruing to Lender under the "security interest" or
"secured creditor" exception under applicable Environmental Laws, as the same
may be amended. No action taken by Lender pursuant to the Loan Documents shall
be deemed or construed to be a waiver or relinquishment of any such rights or
benefits under the "security interest exception."
ARTICLE 5.
LEASING MATTERS
Section 5.1. Representations and Warranties on Leases. Borrowers
represent and warrant to Lender. with respect to leases of the Mortgaged
Property that: (1) the rent roll(s) delivered to Lender is (are) true and
correct, and the leases are valid and in and full force and effect; (2) the
leases (including amendments) are in writing, and there are no oral agreements
with respect thereto; (3) the copies of the leases delivered to Lender are true
and complete; (4) neither the landlord nor, to any Borrower's knowledge, any
tenant is in default under any of the leases; (5) no Borrower has knowledge of
any notice of termination or default with respect to any lease; (6) no Borrower
has assigned or pledged any of the leases, the rents or any interests therein
except to Lender; (7) no tenant or other party has an option to purchase all or
any portion of the Mortgaged Property; (8) no tenant has the right to terminate
its lease prior to expiration of the stated term of such lease; (9) no tenant
has prepaid more than one month's rent in advance; and (10) the City has
approved each of the leases to the extent such approval is required pursuant to
the terms of the City Lease.
Section 5.2. Approval Rights. All leases and other rental arrangements
shall in all respects be approved by Lender and by the City. Borrowers shall
hold, in trust, all tenant security deposits in a segregated account, and, to
the extent required by applicable hw, shall not commingle any such funds with
any other funds of Borrowers. Within ten (1 0) days after Lender' 5 request,
Borrowers shall furnish to Lender a statement of all tenant security deposits,
and copies of all leases not previously delivered to Lender, certified by
Borrowers as being true and correct. Notwithstanding the foregoing, Lender's
approval shall not be required for future leases or lease extensions or
amendments to existing leases with respect to premises other than those subject
to the Rawbar Sublease or the Restaurant Sublease, provided the following
conditions are satisfied: (1) there exists no Potential Default or Event of
Default; and (2) the leased premises, when combined with all other space in the
Mortgaged Property leased to the same tenant or any affiliate thereof, are not
greater than 5,000 rentable square feet.
Section 5.3. Covenants. Each Borrower (1) shall perform the obligations
which it is required to perform under the leases; (2) shall enforce the
obligations to be performed by its tenants; (3) shall promptly furnish to Lender
any notice of default or termination received by it from any tenant under which
the leased premises, when combined with all other space in the Mortgaged
Property leased to the same tenant or any affiliate thereof, are equal to or
greater than 5,000 rentable square feet, and any notice of default or
termination given by such Borrower to any such tenant; (4) shall not collect any
rents for more than thirty (30) days in advance of the time when the same shall
become due; (5) shall not further assign or encumber any lease; (6)
20
shall not, except with Lender's prior written consent, cancel or accept
surrender or termination of any lease; and (7) shall not, except with Lender's
prior written consent, modify or amend any lease (except for minor modifications
and amendments entered into in the ordinary course of business, consistent with
prudent property management practices, not affecting the economic terms of the
lease), and any action in violation of this Section 5.3 shall be void at the
election of Lender. Notwithstanding the foregoing, provided there exists no
Potential Default or Event of Default, Borrowers may cancel, accept the
surrender of, terminate, modify or amend any lease, other than those covering
the premises or portions thereof subject to the Rawbar Sublease or the
Restaurant Sublease, under which the leased premises, when combined with all
other space in the Mortgaged Property leased to the same tenant or any affiliate
thereof, are not greater than 5,000 rentable square feet.
Section 5.4. Tenant Estoppels. At Lender's request, Borrowers shall
obtain and furnish to Lender, written estoppels in form and substance
satisfactory to Lender, executed by tenants under leases in the Mortgaged
Property and confirming the term, rent, and other provisions and matters
relating to the leases.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to Lender with respect to itself
and the Borrower Parties related to such Borrower that:
Section 6.1. Organization and Power. Each Borrower and each Borrower
Party is duly organized, validly existing and in good standing under the laws of
the state of its formation or existence, and is in compliance with legal
requirements applicable to doing business in the State. No Borrower is a
"foreign person" within the meaning of ss. 1445(f)(3) of the Internal Revenue
Code.
Section 6.2. Validity of Loan Documents. The execution, delivery and
performance by Borrowers and each Borrower Party of the Loan Documents: (1) are
duly authorized and do not require the consent or approval of any other party or
governmental authority which has not been obtained; and (2) will not violate any
law or result in the imposition of any lien, charge or encumbrance upon the
assets of any such party, except as contemplated by the Loan Documents. The Loan
Documents constitute the legal, valid and binding obligations of each Borrower
and each Borrower Party, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, or similar laws generally
affecting the enforcement of creditors' rights.
Section 6.3. Liabilities; Litigation.
(1) The financial statements delivered by such Borrower and each
Borrower Party are true and correct in every material respect with no
significant change since the date of preparation. Except as disclosed in such
financial statements, there are no liabilities (fixed or contingent) affecting
the Mortgaged Property, such Borrower or any Borrower Party. Except as disclosed
in such financial statements, there is no litigation, administrative proceeding,
investigation or other legal action (including any proceeding under any state or
federal bankruptcy or insolvency law) pending or, to the knowledge of Borrowers,
threatened, against
21
the Mortgaged Property, any Borrower or any Borrower Party which if adversely
determined could have a material adverse effect on such party, the Mortgaged
Property or the Loan.
(2) Neither any Borrower nor any Borrower Party is contemplating either
the filing of a petition by it under state or federal bankruptcy or insolvency
laws or the liquidation of all or a major portion of its assets or property, and
neither any Borrower nor any Borrower Party has knowledge of any Person
contemplating the filing of any such petition against it.
Section 6.4. Taxes and Assessments. The Mortgaged Property is comprised
of one or more parcels, each of which constitutes a separate tax lot and none of
which constitutes a portion of any other tax lot. There are no pending or, to
Borrowers' best knowledge, proposed, special or other assessments for public
improvements or otherwise affecting the Mortgaged Property, nor are there any
contemplated improvements to the Mortgaged Property that may result in such
special or other assessments.
Section 6.5. Other Agreements; Defaults. Neither any Borrower nor any
Borrower Party is a party to any agreement or instrument or subject to any court
order, injunction, permit, or restriction which might adversely affect the
Mortgaged Property or the business, operations, or condition (financial or
otherwise) of any Borrower or any Borrower Party. Neither any Borrower nor any
Borrower Party is in violation of any agreement which violation would have an
adverse effect on the Mortgaged Property, any Borrower, or any Borrower Party or
any Borrower's or any Borrower Party's business, properties, or assets,
operations or condition, financial or otherwise.
Section 6.6. Compliance with Law
(1) Each Borrower and each Borrower Party have all requisite licenses,
permits, franchises, qualifications, certificates of occupancy or other
governmental authorizations to own, lease and operate the Mortgaged Property and
carry on its business, and the Mortgaged Property is in compliance with all
applicable legal requirements and is free of structural defects, and all
building systems contained therein are in good working order, subject to
ordinary wear and tear. The Mortgaged Property does not constitute, in whole or
in part, a legally non-conforming use under applicable legal requirements;
(2) No condemnation has been commenced or, to Borrowers' knowledge, is
contemplated with respect to all or any portion of the Mortgaged Property or for
the relocation of roadways providing access to the Mortgaged Property; and
(3) The Mortgaged Property has adequate rights of access to public
ways, and the Mortgaged Property and Project are and shall continue to be upon
completion of the Project served by adequate water, sewer, sanitary sewer and
storm drain facilities. All public utilities necessary or convenient to the full
use and enjoyment of the Mortgaged Property and the Project are located in the
public right-of-way abutting the Mortgaged Property, and all such utilities are
connected so as to serve the Mortgaged Property and the Project without passing
over other property, except to the extent such other property is subject to a
perpetual easement for such utility benefiting the Mortgaged Property. All roads
necessary for the full utilization of the
22
Mortgaged Property and the Project for their current and intended purposes have
been completed and dedicated to public use and accepted by all governmental
authorities.
Section 6.7. Location of Borrowers. Each Borrower's principal place of
business and chief executive offices are located at the address stated in
Section 11.1.
Section 6.8. ERISA. No Borrower has established any pension plan for
employees which would cause any Borrower to be subject to the Employee
Retirement Income Security Act of 1974, as amended.
Section 6.9. Margin Stock. No part of proceeds of the Loan will be used
for purchasing or acquiring any "margin stock" within the meaning of Regulations
G, T, U or X of the Board of Governors of the Federal Reserve System.
Section 6.10. Tax Filings. Each Borrower and each Borrower Party have
filed (or have obtained effective extensions for filing) all federal, state and
local tax returns required to be filed and have paid or made adequate provision
for the payment of all federal, state and local taxes, charges and assessments
payable by each Borrower and each Borrower Party, respectively.
Section 6.11. Solvency. Giving effect to the Loan, the fair saleable
value of each Borrower's assets exceeds and will, immediately following the
making of the Loan, exceed that Borrower's total liabilities, including, without
limitation, subordinated, unliquidated, disputed and contingent liabilities. The
fair saleable value of each Borrower's assets is and will, immediately following
the making of the Loan, be greater than that Borrower's probable liabilities,
including the maximum amount of its contingent liabilities on its Debts as such
Debts become absolute and matured, each Borrower's assets do not and,
immediately following the making of the Loan will not, constitute unreasonably
small capital to carry out its business as conducted or as proposed to be
conducted. No Borrower intends to, and each Borrower does not believe that it
will, incur Debts and liabilities (including contingent liabilities and other
commitments) beyond its ability to pay such Debts as they mature (taking into
account the timing and amounts of cash to be received by that Borrower and the
amounts to be payable on or in respect of obligations of that Borrower).
Section 6.12. Full and Accurate Disclosure. The financial statements of
Borrowers and each Borrower Party delivered to Lender are true and correct, have
been prepared in accordance with GAAP and fairly present the financial condition
of Borrowers and each Borrower Party as of the respective dates of such
statements. This Agreement and all financial statements, budgets, schedules,
opinions, certificates, confirmations, statements, applications, affidavits,
reports, agreements and other materials submitted to Lender in connection with
or in furtherance of this Agreement by or on behalf of any Borrower or any
Borrower Party fully and fairly state the matters with which they purport to
deal, and neither misstate any material fact nor, separately or in the
aggregate, fail to state any material fact necessary to make the statements made
not misleading.
Section 6.13. Single Purpose Entity. Each Borrower is and has at all
times since its formation been operated as a Single Purpose Entity.
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Section 6.14. No Debt; No Liens. Except as disclosed in the financial
statements of' Borrowers previously delivered to Lender and except for unsecured
trade payables in the ordinary course of business, no Borrower has Debt other
than the Loan. Other than for non-delinquent ad valorem real property taxes, as
of the date the Loan is funded, the Mortgaged Property shall be free and clear
of all Liens of every nature whatsoever.
Section 6.15. Ownership Interests. Attached hereto as Schedule 6.15 is
a schedule reflecting all persons or entities who are members and managers of
each Borrower and who have an equity interest in any Borrower or in its members
and managers.
Section 6.16. City Lease. Borrowers represent and warrant to Lender as
follows with respect to the City Lease:
(1) the City Lease is current and in good standing and full force and
effect, and has not been amended or modified except as described in Schedule
1.1(19) attached hereto;
(2) to the best knowledge of Borrowers', there exist no defaults or
"Events of Default," or events, conditions or circumstances that with the
passage of time or the giving of notice or both would constitute a default or
"Event of Default," under the City Lease;
(3) any and all improvements and/or work the tenant is required to make
and/or perform pursuant to the terms of the City Lease have been completed and
are acceptable to and have been accepted by the City; and
(4) the City has consented to the Rawbar Sublease, the Restaurant
Sublease and all other subleases and other occupancy agreements currently
affecting the Mortgaged Property or any portion thereof to the extent such
approval is required pursuant to the terms of the City Lease.
Section 6.17. Rawbar Sublease. Borrowers represent and warrant to
Lender as follows with respect to the Rawbar Sublease:
(1) the Rawbar Sublease is current and in good standing and full force
and effect, and has not been amended or modified; and
(2) to the best knowledge of Borrowers', there exist no defaults or
"Events of Default," or events, conditions or circumstances that with the
passage of time or the giving of notice or both would constitute a default or
"Event of Default," under the Rawbar Sublease.
Section 6.18. Restaurant Sublease. Borrowers represent and warrant to
Lender as follows with respect to the Restaurant Sublease:
(1) the Restaurant Sublease is current and in good standing and full
force and effect, and has not been amended or modified; and
(2) to the best knowledge of Borrowers', there exist no defaults or
"Events of Default," or events, conditions or circumstances that with the
passage of time or the giving of notice or both would constitute a default or
"Event of Default," under the Restaurant Sublease.
24
Section 6.19. State Lease. Borrowers represent and warrant to Lender as
follows with respect to the State Lease:
(1) to Borrowers' knowledge, the State Lease is current and in good
standing and full force and effect, and has not been amended or modified except
as described in Schedule 1.1(67) attached hereto; and
(2) to the best knowledge of Borrowers, there exist no defaults or
"Events of Default," or events, conditions or circumstances that with the
passage of time or the giving of notice or both would constitute a default or
"Event of Default," under the State Lease.
Section 6.20. State Waivers. Borrowers represent and warrant to Lender
as follows with respect to the State Waivers:
(1) to Borrowers' knowledge, the State Waivers are current and in good
standing and full force and effect, and have not been amended or modified except
as described in Schedule 1.1(68) attached hereto; and
(2) To the best knowledge of Borrowers, there exists no defaults or
"Events of Default", or events, conditions or circumstances that with the
passage of time or the giving of notice or both would constitute a default or
"Event of Default", under the State Waivers.
Section 6.21. Laws, Zoning and Approvals. (1) The Plans and
Specifications (when completed), the use of the Mortgaged Property and the
anticipated use of the Project comply with all applicable restrictive covenants,
zoning ordinances, building laws and codes, and other applicable laws,
regulations and requirements (including without limitation, the Americans with
Disabilities Act, as amended); (2) the current zoning classification of the
Mortgaged Property and any covenants and restrictions affecting the Mortgaged
Property permit the current use of the Mortgaged Property and the construction
and intended use of the Project; and (3) Borrowers have obtained all permits and
approvals of any type required in connection with the current operation and use
of the Mortgaged Property, and all such permits and approvals are final and
unappealable and remain in full force and effect without restriction or
modification.
Section 6.22. Public Improvements. Any and all public improvements
included as part of the Project have been fully authorized by appropriate
municipal ordinance or other required municipal action. No Borrower is in a
party to any Development Agreement.
ARTICLE 7.
FINANCIAL REPORTING
Section 7.1. Financial Statements.
(1) Periodic Financial Statements. Each Borrower shall deliver to
Lender, within 45 days after the end of each of that Borrower's fiscal six-month
periods (i.e., by August 15 of each year), unaudited management-prepared
financial statements, on a consolidated and consolidating basis.
25
(2) Annual Financial Statements. Each Borrower shall deliver to Lender,
(a) within 120 days after the end of each of that Borrower's fiscal years (i.e.,
by April 30 of each year with respect to the previous year), reviewed financial
statements on a consolidated and consolidating basis along with a copy of the
audited revenue statement as provided to the City pursuant to the terms of the
Lease and that Borrower's financial projections for the coming year and (b)
copies of any of its financial statements that are certified by an independent
public accountant.
(3) Borrowers' Tax Return. Each Borrower shall deliver to Lender,
within 30 days of filing, cornp1ete copies of federal and state tax returns, as
applicable, each of which shall be signed and certified by that Borrower's
managers to be true and complete copies of such returns. In the event an
extension is filed, that Borrower shall deliver a copy of the extension within
30 days of filing.
(4) Guarantors' Financial Statements. Borrowers shall cause Individual
Guarantor to deliver to Lender annually, within 120 days of Bayshore Landing's
fiscal year end, Individual Guarantor's personal financial statements, which
shall disclose all of Individual Guarantor's assets, liabilities, net worth,
income and contingent liabilities, all in reasonable detail and acceptable to
Lender and submitted on a form to be provided by Lender or on such other form
acceptable to Lender, signed by Individual Guarantor and certified by Individual
Guarantor to Lender to be true, correct and complete. If requested by Lender,
such financial statements shall also be accompanied by bank and/or brokerage
statements to support reported liquidity.
(5) Guarantors' Financial Statements. Borrowers shall cause
HMG/Courtland Properties, inc. (one of the Entity Guarantors) to deliver to
Lender annually, within 120 days of such entity's fiscal year end, such Entity
Guarantor's 10K report, certified by such Entity Guarantor's chief financial or
chief executive officer to Lender to be true, correct and complete.
(6) Guarantors' Tax Returns. Borrowers shall cause Individual and
Entity Guarantors to deliver to Lender, within 30 days of filing, complete
copies of federal and state tax returns, including any and all schedule K-1s, as
applicable, each of which shall be signed and certified by Guarantors to be true
and complete copies of such returns. In the event an extension is filed,
Guarantors shall deliver a copy of the extension within 30 days of filing.
(7) Certificate of Full Compliance. Borrowers shall deliver to Lender,
with the annual financial statements required in subsection (2) above, a
certification by Borrowers' independent certified public accountant that
Borrowers are in full compliance with the financial covenants contained in
Sections 8.8, 8.10 and 8.12 hereof. Additionally, together with each submission
required by subsections (1) and (2) above, each Borrower shall deliver to Lender
a compliance certificate in form satisfactory to Lender from that Borrower's
chief financial officer reflecting compliance with the covenants set forth in
Sections 8.8, 8.10 and 8.12 hereof, and certifying that no Potential Default or
Event of Default with respect to such covenants then exists or if such a
Potential Default or Event of Default exists, the nature and duration thereof
and Borrowers' intention with respect thereto, and in addition, Borrowers shall
cause Borrowers' independent auditors (if applicable) to submit to Lender,
together with its audit report, a statement that, in the course of such audit,
it discovered no circumstances which it believes would result in a Potential
Default or Event of Default or if it discovered any such
26
Section 7.2. Accounting Principles. All financial statements shall be
prepared in accordance with GAAP, consistently applied from year to year.
Section 7.3. Other Information. Borrowers shall deliver to Lender such
additional information regarding any Borrower, its business, any Borrower Party,
and the Mortgaged Property within 30 days after Lender's reasonable request
therefor.
ARTICLE 8.
COVENANTS
Each Borrower covenants and agrees with Lender as follows:
Section 8.1. Due on Sale and Encumbrance; Transfers of Interests.
Without the prior written consent of Lender, each Borrower agrees with respect
to itself as follows:
(1) neither Borrower nor any other Person having an ownership or
beneficial interest in Borrower shall (a) directly or indirectly sell, transfer,
convey, mortgage, pledge, or assign the interest of Borrower in the Mortgaged
Property or any part thereof (including any membership or any other ownership
interest in Borrower); (b) further encumber, alienate, xxxxx x Xxxx or xxxxx any
other interest in the Mortgaged Property or any part thereof (including any
membership or other ownership interest in Borrower), or, with respect to
Borrower, on any of its other assets, whether voluntarily or involuntarily; or
(c) enter into any easement or other agreement granting rights in or restricting
the use or development of the Mortgaged Property;
(2) no new member, manager or other Person having the ability to
control the affairs of Borrower shall be admitted to or created in Borrower (nor
shall any existing member, manager or other controlling Person partner withdraw
from Borrower), and no change in Borrower's organizational documents relating to
control over Borrower and/or the Mortgaged Property shall be effected; and
(3) no transfer shall be permitted which would cause the trustees under
the Christoph Trusts to own less than a thirty three percent (33%) beneficial
interest in Borrower.
Notwithstanding the foregoing, upon written notice to Lender (a)
transfers shall be allowed among members in Borrowers provided that the trustees
under the Christoph Trusts at all times own not less than a thirty three percent
(33%) beneficial interest in each Borrower, and provided further that any such
transfer does not cause Borrowers to be in violation of the covenants in Section
8.3 and (b) new members may be admitted to Borrowers provided any such member is
reasonably acceptable to Lender and such new member must guaranty the Loan and
Borrowers' obligations under the Loan Documents pursuant to a guaranty agreement
acceptable to Lender.
As used in this Section 8.1, "transfer" shall include the sale,
transfer, conveyance, mortgage, pledge, or assignment of the legal or beneficial
ownership of (y) the Mortgaged Property, and (z) any membership interest in any
Borrower; "transfer" shall not include the leasing of space within
27
the Mortgaged Property so long as Borrowers comply with the provisions of the
Loan Documents relating to such leasing activity.
Section 8.2. Taxes; Charges. Borrowers shall pay on the initial due
date, and shall not enter into any agreement to defer, any real estate taxes and
assessments, franchise taxes and charges, and other governmental charges that
may become a Lien upon the Mortgaged Property or become payable during the term
of the Loan, and will promptly furnish Lender with evidence of such payment;
however, Borrowers' compliance with Section 3.4 of this Agreement relating to
impounds for taxes and assessments shall, with respect to payment of such taxes
and assessments, be deemed compliance with this Section 8.2. Borrowers shall not
suffer or permit the joint assessment' of the Mortgaged Property with any other
real property constituting a separate tax lot or with any other real or personal
property. Borrowers shall pay when due all claims and demands of mechanics,
materialmen, laborers and others which, if unpaid, might result in a Lien on the
Mortgaged Property.
Section 8.3. Control; Management. There shall be no change in the
day-to-day control and management of any Borrower without the prior written
consent of Lender. The Mortgaged Property shall at all times be managed by
Xxxxxx Xxxxxxxxx, Xx. or by an entity acceptable to Lender that is controlled by
Xxxxxx Xxxxxxxxx, Xx. and one hundred percent (100%) owned by Xxxxxx Xxxxxxxxx,
Xx. and/or members of his immediate family. Borrowers shall not terminate,
replace or appoint any manager or terminate or materially amend the management
agreement(s) for the Mortgaged Property without Lender's prior written approval.
Borrowers shall fully perform all of its covenants, agreements and obligations
under the management agreement(s). Any change in ownership or control of the
manager(s) shall be `cause for Lender to re-approve such manager and management
agreement(s). Each manager shall hold and maintain all necessary licenses,
certifications and permits required by law.
Section 8.4. Operation; Maintenance; Inspection. Borrowers shall
observe and comply with all legal requirements applicable to the ownership, use
and operation of the Mortgaged Property. Borrowers shall maintain the Mortgaged
Property in good condition and promptly repair any damage or casualty. Borrowers
shall permit Lender and its agents, representatives and employees, upon
reasonable prior notice to Bayshore Landing, to inspect the Mortgaged Property
and conduct such environmental and engineering studies as Lender may require.
Section 8.5. Taxes on Security. Borrowers shall pay all taxes, charges,
filing, registration and recording fees, excises and levies payable with respect
to the Note or the Liens created or secured by the Loan Documents, other than
income, franchise and doing business taxes imposed on Lender. If there shall be
enacted any law (I) deducting the Loan from the value of the Mortgaged Property
for the purpose of taxation, (2) affecting any Lien on the Mortgaged Property,
or (3) changing existing laws of taxation of mortgages, deeds of trust, security
deeds, or debts secured by real property, or changing the manner of collecting
any such taxes, Borrowers shall promptly pay to Lender, on demand, all taxes,
costs and charges for which Lender is or may be liable as a result thereof;
however, if such payment would be prohibited by law or would render the Loan
usurious, then instead of collecting such payment, Lender may declare all
amounts owing under the Loan Documents to be immediately due and payable.
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Section 8.6. Legal Existence; Name, Etc. Each Borrower shall preserve
and keep in full force and effect its existence as a Single Purpose Entity,
entity status, franchises, rights and privileges under the laws of the state of
its formation, and all qualifications, licenses and permits applicable to the
ownership, use and operation of the Mortgaged Property. Neither any Borrower nor
any Borrower Party shall wind up, liquidate, dissolve, reorganize, merge, or
consolidate with or into, or convey, sell, assign, transfer, lease, or otherwise
dispose of all or substantially all of its assets, or acquire all or
substantially all of the assets of the business of any Person. Each Borrower
shall conduct business only in its own name and shall not change its name,
identity, or organizational structure, or the location of its chief executive
office or principal place of business unless Borrowers (1) shall have obtained
the prior written consent of Lender to such change, and (2) shall have taken all
actions necessary or requested by Lender to file or amend any financing
statement or continuation statement to assure perfection and continuation of
perfection of security interests under the Loan Documents. Each Borrower shall
maintain its separateness as an entity, including maintaining separate books,
records, and accounts and observing company formalities independent of any other
entity, shall pay its obligations with its own funds and shall not commingle
funds or assets with those of any other entity.
Section 8.7. Transactions with Affiliates. Except as set forth in
Schedule 8.7, Borrowers shall not directly or indirectly purchase, acquire or
lease any property from, or sell, transfer or lease any property to, pay any
management fees to or otherwise deal with, in the ordinary course of business or
otherwise, any Affiliate. The foregoing restriction shall not prohibit
Affiliates, including Guarantors and other members of Borrowers, from entering
into unrelated transactions amongst themselves, provided that no Borrower is a
party to any such transaction and provided further that any such transaction
does not affect the Mortgaged Property.
Section 8.8. Limitation on Other Debt. No Borrower shall, without the
prior written consent of Lender, directly' or indirectly incur any Debt other
than the Loan and customary trade payables which are payable, and shall be paid,
within sixty (60) days of when incurred.
Section 8.9. Limitation on Other Liens. No Borrower shall create, place
or permit to be created or placed, or through any act or failure to act
voluntarily acquiesce in the placing of, or allow to remain, any Lien against or
covering the Mortgaged Property or any part thereof (other than the Lien of the
Mortgage), regardless of whether the same are expressly or otherwise subordinate
to the liens or security interest of the Mortgage. If any Lien becomes attached
hereafter in any manner to any part of the Mortgaged Property without the prior
written consent of Lender which Lender may withhold in its sole and absolute
discretion, then Borrowers will cause the same to be promptly discharged and
released (by transfer to a bond or otherwise).
Section 8.10. Guaranties and Other Investments. No Borrower shall
directly or indirectly guaranty, assume or otherwise become liable or
responsible for the Debt of any other Person, or offer or agree to do so,
including agreements to purchase those obligations or to purchase, sell or lease
any securities, assets, properties or services or make any capital contribution,
advance or loan for the purpose of paying or discharging such Debt. No Borrower
shall directly or indirectly make or permit to exist any advances or loans to,
or own, purchase or make any commitment to purchase any stock, bonds, notes,
debentures or other securities of, or any interest in, or make any capital
contributions to or in any Person except for (1) purchases of
29
direct obligations of the federal government, (2) deposits in commercial banks,
(3) commercial paper of any U.S. corporation having the highest ratings then
given by the Xxxxx'x Investors Services, Inc. or Standard & Poor's Corporation,
(4) endorsement of negotiable instruments for collection in the ordinary course
of business and (5) investment grade securities.
Section 8.11. Banking Accounts. During the term of the Loan, each
Borrower shall maintain its primary depository account and cash management
account relationship with Lender.
Section 8.12. Minimum Debt Service Coverage Ratio. Borrowers shall
maintain on an annual basis during the term of the Loan a consolidated Debt
Service Coverage Ratio of not less than 1.15 to 1.0.
Section 8.13. Further Assurances. Borrowers shall promptly (1) cure any
defects in the execution and delivery of the Loan Documents, and (2) execute and
deliver, or cause to be executed and delivered, all such other documents,
agreements and instruments as Lender may reasonably request to further evidence
and more fully describe the collateral for the Loan, to correct any omissions in
the Loan Documents, to perfect, protect or preserve any liens created under any
of the Loan Documents, or to make any recordings, file any notices, or obtain
any consents, as may be necessary or appropriate in connection therewith.
Section 8.14. Estoppel Certificates. Borrowers, within ten (10) days
after request, shall furnish to Lender a written statement, duly acknowledged,
setting forth the amount due on the Loan, the terms of payment of the Loan, the
date to which interest has been paid, whether any offsets or defenses exist
against the Loan and, if any are alleged to exist, the nature thereof in detail,
and such other matters as Lender reasonably may request.
Section 8.15. Notice of Certain Events. Borrowers shall promptly notify
Lender of (1) any Potential Default or Event of Default, together with a
detailed statement of the steps being taken to cure such Potential Default or
Event of Default; (2) any notice of default received by any Borrower under other
obligations relating to the Mortgaged Property that equal or exceed $50,000, or
otherwise material to any Borrower's business; and (3) any threatened or pending
legal, judicial or regulatory proceedings, including any dispute between any
Borrower and any governmental authority, affecting any Borrower or the Mortgaged
Property in any amount if any such proceeding or dispute concerns the City
Lease, the State Lease or the State Waivers, and otherwise, if the amount equals
or exceeds $50,000.
Section 8.16. Indemnification. Borrowers shall indemnify, defend and
hold Lender harmless from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever, including the reasonable fees
and actual expenses of Lender's counsel, in connection with (1) any inspection,
review or testing of or with respect to the Mortgaged Property, (2) any
investigative, administrative, mediation, arbitration, or judicial proceeding,
whether or not Lender is designated a party thereto, commenced or threatened at
any time (including after the repayment of the Loan) in any way related to the
execution, delivery or performance of any Loan Document or to the Mortgaged
Property, (3) any proceeding instituted by any Person claiming a Lien, and (4)
any brokerage commissions or finder's fees claimed by any broker or other party,
other than an employee of Lender, in connection with the Loan, the Mortgaged
Property, or any
30
of the transactions contemplated in the Loan Documents, including those arising
from the joint, concurrent, or comparative negligence of Lender, except to the
extent any of the foregoing is caused by Lender's gross negligence or willful
misconduct.
Section 8.17. City Lease.
(1) Covenants. Without limiting the generality of any other provision
hereof, Bayshore Landing hereby covenants and agrees:
(a) to promptly pay all rent, additional rent, taxes and all other sums
and charges when due and payable under the terms of the City Lease, without
offset or deduction whatsoever (unless expressly permitted under the terms of
the City Lease or as otherwise approved by the City in writing), and to fully
and promptly perform and observe all of the agreements, terms, covenants and
conditions required to be performed and observed by Bayshore Landing under the
City Lease within the grace or cure periods provided therein for the tenant's
performance (in contrast to any additional grace periods as may be provided for
curative action by Lender), and shall do all things necessary to preserve and
keep unimpaired Bayshore Landing's rights under the City Lease. Within ten (10)
days after demand, Borrowers shall furnish to Lender proof of payment of all
sums which the City Lease requires the tenant thereunder to pay and to provide
proof of such payment to the City;
(b) to immediately notify Lender in writing of any default under the
City Lease; and
(c) to immediately cause a copy of each written default notice given by
City to any Borrower to be delivered to Lender, regardless of the nature of such
notice.
(2) Lender's Right to Perform In the event Bayshore Landing fails to
perform any of the terms, covenants and conditions required to be performed or
observed by the tenant under the City Lease, then even though the existence of
such default or the nature thereof be questioned or denied by Bayshore Landing
or by any person on behalf of Bayshore Landing, Lender may, but without
obligation to do so and without relieving Borrowers from any obligation
hereunder or under the other Loan Documents, take any action Lender deems
necessary or desirable to prevent or cure any such default. Lender agrees to
attempt to provide Bayshore Landing a curtsey notice of the initial action taken
by Lender, provided that the failure of Lender to provide such curtsey notice
shall not give rise to any liability to Lender, nor shall it provide any
Borrower with any claims, defenses, offsets, rights or remedies of any nature
against Lender. Borrowers hereby expressly grants to Lender the absolute and
immediate right to enter in and upon the Mortgaged Property or any part thereof
to such extent and as often as Lender in its sole discretion deems necessary or
desirable to prevent or cure any such default by Bayshore Landing. All costs,
charges and expenses incurred or paid by Lender in conjunction therewith,
together with interest thereon, at the Default Rate from the date incurred until
paid by Borrowers, shall become indebtedness secured by the Mortgage and other
Loan Documents and shall be paid by Borrowers to Lender not later than thirty
(30) days after demand. The performance or observance of any such covenant or
condition by the Lender shall not prevent the Borrowers' failure so to perform
or observe from constituting an Event of Default.
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(3) No Merger. Unless Lender shall otherwise consent in writing, the
fee title to the Mortgaged Property and the leasehold under the City Lease shall
not merge for so long as the Loan remains unpaid, but shall always remain
separate and distinct estates, notwithstanding the union thereof in the City, in
Bayshore Landing or in any third person whomsoever, whether by purchase or
otherwise.
(4) Borrowers have no Interest If the City Lease is terminated before
the natural expiration of its term for any reason whatsoever and if Lender or
its designee shall acquire from the City a new lease of the Mortgaged Property
or any portion thereof (whether pursuant to any provision of the City Lease or
otherwise), then no Borrower shall have any right, title or interest whatsoever
in or to such new lease or the leasehold estate created thereby.
(5) No Liability. The Mortgage creates in favor of Lender a collateral
(rather than an absolute) assignment of and security interest in the City Lease
and the leasehold estate created thereunder, and neither the Mortgage or any
other Loan Document shall impose on Lender any liability to the City with
respect thereto (whether by privity or estate or otherwise) unless and until
Lender shall have acquired the leasehold estate thereunder absolutely (whether
by foreclosure or assignment in lieu thereof or otherwise), and then such
liability shall be limited to the obligations of the lessee under the City Lease
arising after such acquisition and only during the time that Lender is the owner
of such leasehold estate and not thereafter.
(6) No Surrender, Modification, Etc. Each Borrower agrees that it will
not (a) surrender any of its rights under the City Lease, (b) terminate or
cancel or release the City Lease or (c) consent to any modification, change or
any alteration or amendment of the City Lease, either orally or in writing.
(7) New Lease. Borrowers agree to use their continuous best efforts to
provide to Lender an agreement from the City in favor of Lender, in form and
substance acceptable to Lender, under which the City agrees to enter into a new
lease with Lender on the same terms and conditions as the City Lease in the
event the City Lease is terminated due to or as a result of (a) any voluntary or
involuntary case or other proceeding against any Bankruptcy Party which seeks
liquidation, reorganization or other relief with respect to it or its debts or
other liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeks the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any of its property or (b) any
default under the City Lease that are incapable of cure by Lender.
Section 8.18. Rawbar Sublease.
(1) Covenants. Without limiting the generality of any other provision
hereof, Bayshore Rawbar hereby covenants and agrees:
(a) to promptly pay all rent, additional rent, taxes and all other sums
and charges when due and payable under the terms of the Rawbar Sublease, without
offset or deduction whatsoever (unless expressly permitted under the terms of
the Rawbar Sublease or as otherwise approved by the landlord thereunder in
writing), and to fully and promptly perform and observe all of the agreements,
terms, covenants and conditions required to be performed and observed by
Bayshore Rawbar under the Rawbar Sublease within the grace or cure periods
32
provided therein for the tenant's performance (in contrast to any additional
grace periods as may be provided for curative action by Lender), and shall do
all things necessary to preserve and keep unimpaired Bayshore Rawbar's rights
under the Rawbar Sublease. Within ten (10) days after demand, Borrowers shall
furnish to Lender proof of payment of all sums which the landlord under the
Rawbar Sublease requires the tenant thereunder to pay and to provide proof of
such payment to such landlord;
(b) to immediately notify Lender in writing of any default under the
Rawbar Sublease; and
(c) to immediately cause a copy of each written default notice given by
the landlord under the Rawbar Sublease to any Borrower to be delivered to
Lender, regardless of the nature of such notice.
(2) Lender's Right to Perform. In the event Bayshore Rawbar fails to
perform any of the terms, covenants and conditions required to be performed or
observed by the tenant under the Rawbar Sublease, then even though the existence
of such default or the nature thereof be questioned or denied by Bayshore Rawbar
or by any person on behalf of Bayshore Rawbar, Lender may, but without
obligation to do so and without relieving Borrowers from any obligation
hereunder or under the other Loan Documents, take any action Lender deems
necessary or desirable to prevent or cure any such default. Lender agrees to
attempt to provide Bayshore Rawbar a courtesy notice of the initial action taken
by Lender, provided that the failure of Lender to provide such courtesy notice
shall not give rise to any liability to Lender, nor shall it provide any
Borrower with any claims, defenses, offsets, rights or remedies of any nature
against Lender. Borrowers hereby expressly grants to Lender the absolute and
immediate right to enter in and upon the Mortgaged Property or any part thereof
to such extent and as often as Lender in its sole discretion deems necessary or
desirable to prevent or cure any such default by Bayshore Rawbar. All costs,
charges and expenses incurred or paid by Lender in conjunction therewith,
together with interest thereon, at the Default Rate from the date incurred until
paid by Borrowers, shall become indebtedness secured by the Mortgage and other
Loan Documents and shall be paid by Borrowers to Lender not later than thirty
(30) days after demand. The performance or observance of any such covenant or
condition by the Lender shall not prevent the Borrowers' failure so to perform
or observe from constituting an Event of Default.
(3) No Merger. Unless Lender shall otherwise consent in writing, the
leasehold interest under the City Lease and the subleasehold interest under the
Rawbar Sublease shall not merge for so long as the Loan remains unpaid, but
shall always remain separate and distinct estates, notwithstanding the union
thereof in Bayshore Landing, Bayshore Rawbar or in any third person whomsoever,
whether by purchase or otherwise.
(4) Borrowers have no Interest. If the Rawbar Sublease is terminated
before the natural expiration of its term for any reason whatsoever and if
Lender or its designee shall acquire a new sublease of the area leased under the
Rawbar Sublease or any portion thereof, then no Borrower shall have any right,
title or interest whatsoever in or to such new lease or the leasehold estate
created thereby.
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(5) No Liability. The Mortgage creates in favor of Lender a collateral
(rather than an absolute) assignment of and security interest in the rawbar
Sublease and the leasehold estate created thereunder, and neither the Mortgage
or any other Loan Document shall impose on Lender any liability to the landlord
thereunder with respect thereto (whether by privily or estate or otherwise)
unless and until Lender shall have acquired the subleasehold estate thereunder
absolutely (whether by foreclosure or assignment in lieu thereof or otherwise),
and then such liability shall be limited to the obligations of the lessee under
the Rawbar Sublease arising after such acquisition and only during the time that
Lender is the owner of such subleasehold estate and not thereafter.
(6) No Surrender, Modification, Etc. Bayshore Landing and Bayshore
Rawbar each agrees that it will not, without first obtaining Lender's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed, (a) surrender any of its rights under the Rawbar Sublease, (b)
terminate or cancel or release the Rawbar Sublease or (c) consent to any
modification, change or any alteration or amendment of the Rawbar Sublease,
either orally or in writing.
(7) Termination of Rawbar Sublease. From and after any Event of Default
under this Agreement, Lender may, in its sole and absolute discretion, without
cause and without penalty, terminate the Rawbar Sublease on ten (10) days'
written notice to Bayshore Rawbar. In such event, upon the expiration of such
ten (I 0) day period, the Rawbar Sublease shall immediately terminate, and
Bayshore Rawbar shall immediately vacate the premises leased thereunder.
Section 8.19. Restaurant Sublease.
(1) Covenants. Without limiting the generality of any other provision
hereof, Bayshore Restaurant hereby covenants and agrees:
(a) to promptly pay all rent, additional rent, taxes and all other sums
and charges when due and payable under the terms of the Restaurant Sublease,
without offset or deduction whatsoever (unless expressly permitted under the
terms of the Restaurant Sublease or as otherwise approved by the landlord
thereunder in writing), and to fully and promptly perform and observe all of the
agreements, terms, covenants and conditions required to be performed and
observed by Bayshore Restaurant under the Restaurant Sublease within the grace
or cure periods provided therein for the tenant's performance (in contrast to
any additional grace periods as may be provided for curative action by Lender),
and shall do all things necessary to preserve and keep unimpaired Bayshore
Restaurant's rights under the Restaurant Sublease. Within ten (10) days after
demand, Borrowers shall furnish to Lender proof of payment of all sums which the
landlord under the Restaurant Sublease requires the tenant thereunder to pay and
to provide proof of such payment to such landlord;
(b) to immediately notify Lender in writing of any default under the
Restaurant Sublease; and
34
(c) to immediately cause a copy of each written default notice given by
the landlord under the Restaurant Sublease to any Borrower to be delivered to
Lender, regardless of the nature of such notice.
(2) Lender's Right to Perform. In the event Bayshore Restaurant fails
to perform any of the terms, covenants and conditions required to be performed
or observed by the tenant under the Restaurant Sublease, then even though the
existence of such default or the nature thereof be questioned or denied by
Bayshore Restaurant or by any person on behalf of Bayshore Restaurant, Lender
may, but without obligation to do so and without relieving Borrowers from any
obligation hereunder or under the other Loan Documents, take any action Lender
deems necessary or desirable to prevent or cure any such default. Lender agrees
to attempt to provide Bayshore Restaurant a courtesy notice of the initial
action taken by Lender, provided that the failure of Lender to provide such
courtesy notice shall not give rise to any liability to Lender, nor shall it
provide any Borrower with any claims, defenses, offsets, rights or remedies of
any nature against Lender. Borrowers hereby expressly grants to Lender the
absolute and immediate right to enter in and upon the Mortgaged Property or any
part thereof to such extent and as often as Lender in its sole discretion deems
necessary or desirable to prevent or cure any such default by Bayshore
Restaurant. All costs, charges and expenses incurred or paid by Lender in
conjunction therewith, together with interest thereon, at the Default Rate from
the date incurred until paid by Borrowers, shall become indebtedness secured by
the Mortgage and other Loan Documents and shall be paid by Borrowers to Lender
not later than thirty (30) days after demand. The performance or observance of
any such covenant or condition by the Lender shall not prevent the Borrowers'
failure so to perform or observe from constituting an Event of Default.
(3) No Merger. Unless Lender shall otherwise consent in writing, the
leasehold interest under the City Lease and the subleasehold interest under the
Restaurant Sublease shall not merge for so long as the Loan remains unpaid, but
shall always remain separate and distinct estates, notwithstanding the union
thereof in Bayshore Landing, Bayshore Restaurant or in any third person
whomsoever, whether by purchase or otherwise.
(4) Borrowers have no Interest. If the Restaurant Sublease is
terminated before the natural expiration of its term for any reason whatsoever
and if Lender or its designee shall acquire a new sublease of the area leased
under the Restaurant Sublease or any portion thereof, then no Borrower shall
have any right, title or interest whatsoever in or to such new lease or the
leasehold estate created thereby.
(5) No Liability. The Mortgage creates in favor of Lender a collateral
(rather than an absolute) assignment of and security interest in the Restaurant
Sublease and the leasehold estate created thereunder, and neither the Mortgage
or any other Loan Document shall impose on Lender any liability to the landlord
thereunder with respect thereto (whether by privily or estate or otherwise)
unless and until Lender shall have acquired the subleasehold estate thereunder
absolutely (whether by foreclosure or assignment in lieu thereof or otherwise),
and then such liability shall be limited to the obligations of the lessee under
the Restaurant Sublease arising after such acquisition and only during the time
that Lender is the owner of such subleasehold estate and not thereafter.
35
(6) No Surrender, Modification, Etc. Bayshore Landing and Bayshore
Restaurant each agrees that it will not, without first obtaining Lender's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed, (b) terminate or cancel or release the Restaurant Sublease or (c)
consent to any modification, change or any alteration or amendment of the
Restaurant Sublease, either orally or in writing.
(7) Termination of Restaurant Sublease. From and after any Event of
Default under this Agreement, Lender may, in its sole and absolute discretion,
without cause and without penalty, terminate the Restaurant Sublease on ten (10)
days' written notice to Bayshore Restaurant. In such event, upon the expiration
of such ten (10) day period, the Restaurant Sublease shall immediately
terminate, and Bayshore Restaurant shall immediately vacate the premises leased
thereunder.
Section 8.20 State Lease.
(1) Covenants. Without limiting the generality of any other provision
hereof, Bayshore Landing hereby covenants and agrees:
(a) to promptly pay any and all payments it or the City may be required
to make under or in connection with the State Lease, and to fully and promptly
perform and observe any and all of the agreements, terms, covenants and
conditions it or the City may be required to perform thereunder or in connection
therewith, and shall do all things necessary to preserve and keep unimpaired
Bayshore Landing's and the City's rights under the State Lease. Promptly after
Lender's demand, Borrowers shall request the City to furnish to Lender proof of
payment of all sums which the City is required to pay under the State Lease, and
by May 3 1 of each year throughout the term of the Loan, and at all other times
within ten (10) days after demand, Borrowers shall furnish to Lender proof of
payment of all sums required to be paid under or in connection with the State
Lease. Promptly after Lender's demand, Borrowers shall use its continuous best
efforts to obtain and furnish to Lender a written estoppel from the State with
respect to the State Lease that is in form and substance satisfactory to Lender;
(b) to promptly notify Lender in writing of any default under the State
Lease that any Borrower at any time becomes aware of, and
(c) to promptly cause a copy of each notice given to any Borrower in
connection with the State Lease to be delivered to Lender, regardless of the
nature of such notice.
(2) Lender's Right to Perform. In the event any of the terms, covenants
and conditions required to be performed or observed under the State Lease are
not performed, then Borrowers have no objection if Lender, in its sole
discretion and without obligation to do so, takes any action Lender deems
necessary or desirable to prevent or cure any such default. Lender agrees to
attempt to provide Bayshore Landing a courtesy notice of the initial action
taken by Lender, provided that the failure of Lender to provide such courtesy
notice shall not give rise to any liability to Lender, nor shall it provide
Borrowers with any claims, defenses, offsets, rights or remedies of any nature
against Lender. Borrowers hereby expressly grants to Lender the absolute and
immediate right to enter in and upon the Mortgaged Property or any part thereof
to such extent and as often as Lender in its sole discretion deems necessary or
desirable
36
to prevent or cure any such default. All costs, charges and expenses incurred or
paid by Lender in conjunction therewith, together with interest thereon, at the
Default Rate from the date incurred until paid by Borrowers, shall become
indebtedness secured by the Mortgage and other Loan Documents and shall be paid
by Borrowers to Lender not later than thirty (30) days after demand.
(3) No Liability. The Mortgage creates in favor of Lender a collateral
(rather than an absolute) assignment of and security interest in Borrowers'
rights under the State Lease, and neither the Mortgage or any other Loan
Document shall impose on Lender any liability to the City or the State with
respect thereto (whether by privily or estate or otherwise).
(4) No Surrender, Modification. Etc. Each Borrower agrees that it will
not (a) surrender any of its rights under the State Lease, (b) consent to any
termination or cancellation or release of the State Lease or (c) without
Lender's prior written consent, consent to any modification, change or any
alteration or amendment of the State Lease, either orally or in writing.
(5) Extension of Term of State Lease. Not later than that date that is
six (6) months prior to the last day of the term of the State Lease, and not
later than that date that is six (6) months prior to the last day of each
extended term of the State Lease, Borrowers shall formally request the City to
immediately commence the process of obtaining an extension of the term of the
State Lease for the maximum term available under applicable law, rule or
regulation, or for the longest renewal term that the State will grant after
diligent effort to achieve the maximum term available.
Section 8.21 State Waivers.
(1) Covenants. Without limiting the generality of any other provision
hereof, Bayshore Landing hereby covenants and agrees:
(a) to promptly pay any and all payments it or the City may be required
to make under or in connection with the State Waivers, and to fully and promptly
perform and observe any and all of the agreements, terms, covenants and
conditions it or the City may be required to perform thereunder or in connection
therewith, and shall do all things necessary to preserve and keep unimpaired
Bayshore Landing's and the City's rights under the State Waivers. Promptly after
Lender's demand, Bayshore Landing shall request the City to furnish to Lender
proof of payment of all sums which the City is required to pay under the State
Waivers, and by May 31 of each year throughout the term of the Loan with respect
to the portion of the Mortgaged Property referred to as Parcels A2, B2 and 2,
and by April 30 of each year throughout the term of the Loan with respect to the
portion of the Mortgaged Property referred to as Parcel 5, and at all other
times within ten (10) days after demand, Borrowers shall furnish to Lender proof
of payment of all sums required to be paid under or in connection with the State
Waivers;
(b) to promptly notify Lender in writing of any default under the State
Waivers that any Borrower at any time becomes aware of; and
37
(c) to promptly cause a copy of each notice given to any Borrower in
connection with the State Waivers to be delivered to Lender, regardless of the
nature of such notice.
(2) Lender's Right to Perform. In the event any of the terms, covenants
and' conditions required to be performed or observed under the State Waivers are
not performed, then Borrowers have no objection if Lender, in its sole
discretion and without obligation to do so, takes any action Lender deems
necessary or desirable to prevent or cure any such , default. Lender agrees to
attempt to provide Bayshore Landing a courtesy notice of the initial action
taken by Lender, provided that the failure of Lender t provide such courtesy
notice shall not give rise to any liability to Lender, nor shall it provide
Borrowers with any claims, defenses, offsets, rights or remedies of any nature
against Lender. Borrowers hereby expressly grants to' Lender the absolute and
immediate right to enter in and upon the Mortgaged Property or any part thereof
to such extent and as often as Lender in its sole discretion deems necessary or
desirable to prevent or cure any such default. All costs, charges and expenses
`incurred or paid by Lender in conjunction therewith, together with interest
thereon, at the Default Rate from the date incurred until paid by Borrowers,
shall become indebtedness secured by the Mortgage and other Loan Documents and
shall be paid by Borrowers to Lender not later than thirty (30) days after
demand.
(3) No Liability. The Mortgage creates in favor of Lender a collateral
(rather than an absolute) assignment of and security interest in Borrowers'
rights under the State Waivers, and neither the Mortgage or any other Loan
Document shall impose on Lender any liability to the City or the State with
respect thereto (whether by privity or estate or otherwise).
(4) No Surrender, Modification, Etc. Each Borrower agrees that it will
not (a) surrender any of its rights under the State Waivers, (b) consent to any
termination or cancellation or release of the State Waivers or (c) without
Lender's prior written consent, consent to any modification, change or any
alteration or amendment of the State Waivers, either orally or in writing.
Section 8.22. Construction of Project. Construction of the Project,
including delivery of materials or performance of lienable work, shall not
commence before recording of the Mortgage or before recording a notice of
commencement as required by Schedule 2.2, and posting of such notice of
commencement at the Project as required by the Construction Lien Law. Borrowers
shall not cause a notice of commencement to be recorded prior to the recordation
of the Mortgage. Unless otherwise agreed in writing by Lender and subject to
Excusable Delays, construction of the Project shall commence within one hundred
twenty (120) days from the date of this Agreement and be carried on diligently
and without delay or interruption for more than ten (10) consecutive days. The
Project shall be constructed in a good and workmanlike manner, in accordance
with the Plans and Specifications and the other Construction Documents submitted
or to be submitted to Lender, and in compliance with the Budget and/or
disbursement schedule, as applicable.
Section 8.23. Completion of the Project. Borrowers shall complete
construction of the Project, including, without limitation, all tenant
improvement work, by no later then the Completion Date. The Completion Date
shall be extended as a result of any Excusable Delays;
38
provided, however, the existence of an Excusable Delay shall not serve to extend
the Maturity Date or otherwise suspend or xxxxx any other obligation of
Borrowers under this Agreement or the other Loan Documents. For purposes of this
Agreement, completion of the Project shall be deemed to have occurred only when
the following conditions (the "Completion Conditions") shall have been
satisfied:
(1) Certificate(s) of Occupancy. Borrowers shall furnish to Lender
temporary certificate(s) of occupancy or its equivalent and such other permits
and/or certificates (including a certificate of completion in accordance with
the Plans and Specifications from the Architect issued to Lender) as shall be
required to establish to Lender's satisfaction that the Project (including,
without limitation, all tenant improvement work) has been properly completed and
is not subject to any violations or uncorrected conditions noted or filed in any
municipal department.
(2) Releases of Lien Borrowers shall submit to Lender full and complete
releases of liens from each contractor, subcontractor and supplier, together
with a final contractor's affidavit as required under the Construction Lien Law
and other proof reasonably required by Lender confirming that final payment has
been made for all materials supplied and labor furnished in connection with the
Project (including, without limitation, all tenant improvement work).
(3) Inspection Report. The Project (including, without limitation, all
tenant improvement work) shall have been finally completed in all respects in
accordance with the Plans and Specifications, as verified by a final inspection
report satisfactory to Lender from Lender's Inspector, certifying that the
Project (including, without limitation, all tenant improvement work) has been
constructed in a good and workmanlike manner and is in satisfactory condition,
and that all mechanical, electrical, plumbing, structural and roof systems are
in acceptable operating condition. Lender reserves the right to require that an
escrow be established in an amount satisfactory to Lender to remedy any physical
deficiency in any of the Project.
Borrowers shall furnish to Lender permanent certificate(s) of occupancy
or its equivalent not later than sixty (60) days after the Completion Date.
(4) As-Built Survey. If reasonably requested by Lender, Borrowers shall
deliver to Lender a satisfactory as-built survey disclosing no conditions
unacceptable to Lender and showing lot and street lines, the location of all
improvements, easements, rights-of-way and utilities (including all easements
listed as exceptions on the mortgagee policy of title insurance delivered to and
accepted by Lender), and containing a certification addressed to Lender in form
and content satisfactory to Lender.
Section 8.24. Change Orders. No amendment shall be made to the Plans
and Specifications, the Architect's Contract or to the Construction Contract,
nor shall any change orders be made thereunder without the prior written consent
of Lender and the surety under the Bonds.
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Section 8.25. Subcontractors. Borrowers agree that none of them will
engage or permit the General Contractor to engage or continue to employ any
contractor, subcontractor or materialman who may be reasonably objectionable to
Lender. If requested by Lender, Borrowers shall deliver to Lender a fully
executed copy of each of the agreements between any Borrower and such
contractors and between the General Contractor and its subcontractors, each of
which shall be in form and substance satisfactory to Lender. Lender's approval
of a construction contract is specifically conditioned upon the following: (1)
the total contract price thereof does not exceed the fair and reasonable cost of
the work to be performed thereunder, and (2) the contractor or subcontractor is
of recognized standing in the trade, has a reputation for complying with
contractual obligations, and is otherwise acceptable to Lender.
Section 8.26. Liens and Lien Waivers. Borrowers shall take all action
necessary to have any mechanic's and materialmen's liens, judgment liens or
other liens or encumbrances filed against the Mortgaged Property released or
transferred to bond within twenty (20) days of the date any Borrower receives
notice of the filing of such liens or encumbrances. If any such lien or
encumbrance is filed, Lender shall not be required t make any Advances until it
is removed and a copy of the recorded release thereof is received by Lender and
accepted by the Title Insurer. Lender shall not be obligated to disburse any
funds to any Borrower if, in the opinion of Lender, any Advance, the Mortgaged
Property, or any other collateral for the Loan would be subject to a mechanic's
or materialmen's lien or any other lien or encumbrance. Borrowers shall be fully
and solely responsible for compliance in all respects whatsoever with the
applicable mechanic's and materialmen's lien laws. Borrowers shall (1) notify
Lender of any and all notices to owner and claims of lien under the Construction
Lien Law within 5 days of receipt thereof, and (2) comply with all provisions of
the Construction Lien Law, including but not limited to payment and notice
provisions. Borrowers authorize Lender to demand on Borrowers' behalf the
statement of account referred to in Section 713.16(2) of the Florida Statutes of
any person or entity filing a notice to owner. Lender's rights to request such
statements of account will not impose any obligation on Lender to use such
authority, and the exercise of such authority shall not create or imply any
obligation to exercise such authority on subsequent occasions.
Section 8.27. Surveys. If reasonably requested by Lender, Borrowers
shall deliver to Lender, each in compliance with Lender's survey requirements,
(1) a foundation survey within thirty (30) days after completion of the
foundation of the Project, (2) an as-built survey within thirty (30) days after
the completion of the Project but prior to the final Advance of the Construction
Loan, and (3) any additional surveys requested by Lender, Lender's Inspector or
the Title Insurer, within thirty (30) days after such request. Any change in the
state of facts shown in any such updated survey shall be subject to approval by
Lender and Lender's Inspector.
Section 8.28. Compliance with Laws and Restrictions. All construction
shall be performed strictly in accordance with all applicable statutes,
ordinances, codes, regulations and restrictions. The Project shall be
constructed entirely on the Mortgaged Property and will not encroach upon or
overhang any easement, right of way, or any other land, and shall be constructed
wholly within applicable building setback restrictions. All contractors,
subcontractors, mechanics or laborers and other persons providing labor or
material in construction of the Project shall have or be covered by worker's
compensation insurance, if required by applicable law.
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Section 8.29. Ownership of Material and Fixtures. No materials,
equipment or fixtures incorporated by Borrowers into the Project shall be
purchased or installed under any security agreement, conditional sales contract,
lease, or other arrangement wherein the seller reserves title or any interest in
such items or the right to remove or repossess such items or to consider them
personal property after their incorporation into the Project, without the prior
written consent of Lender.
Section 8.30. Payment and Performance Bonds. Borrowers shall furnish
Lender with both payment and performance bonds (collectively, the "Bonds") equal
to 100% of the stipulated sum or guaranteed maximum set forth in the
Construction Contract, and in form and substance satisfactory to Lender, issued
by a surety acceptable to Lender, and naming Lender and Bayshore Landing as dual
obligees thereunder.
ART1CLE 9.
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default under the
Loan:
Section 9.1. Payments. Borrowers' failure to pay any regularly
scheduled installment of principal, interest or other amount due under the Loan
Documents within five (5) days after the date when due, or Borrowers' failure to
pay the Loan at the Maturity Date, whether by acceleration or otherwise.
Section 9.2. Insurance. Borrowers' failure to maintain insurance as
required under Section 3.1 of this Agreement.
Section 9.3. Sale, Encumbrance, Change in Control or Manager, Etc. The
sale, transfer, conveyance, pledge, mortgage or assignment of any part or all of
the Mortgaged Property, or any interest therein, or of any interest in any
Borrower, or changes in control or management, in violation of Sections 8.1 or
8.3 of this Agreement.
Section 9.4. City Lease. (1) any default or "Event of Default" by
Bayshore Landing under the City Lease that remains uncured after any applicable
grace or cure period contained within the City Lease; (2) Lender's receipt of
any notice from the City of intention to terminate the City Lease for any reason
whatsoever, or any termination or purported termination of the City Lease
(whether voluntarily or by operation of law) subject to the expiration of any
grace or cure period specified in said notice; (3) any surrender, termination,
cancellation, release, modification, change, supplement, alteration or amendment
whatsoever to the City Lease without Lender's prior written consent, which
Lender may grant or withhold in its reasonable discretion; or (4) any election
by the City (or its trustee in bankruptcy) to reject the City Lease pursuant to
section 365(h) of the Federal Bankruptcy Code of I 978 (or any successor
provision) or under any similar law or right of any nature.
Section 9.5. Rawbar Sublease. (1) any default or "Event of Default" by
Bayshore Rawbar under the Rawbar Sublease that remains uncured after any
applicable grace or cure period contained within the Rawbar Sublease; (2)
Lender's receipt of any notice from the landlord under the Rawbar Sublease of
intention to terminate the Rawbar Sublease for any
41
reason whatsoever, or any termination or purported termination of the Rawbar
Sublease (whether voluntarily or by operation of law) subject to the expiration
of any grace or cure period specified in said notice; (3) any surrender,
termination, cancellation, release, modification, change, supplement, alteration
or amendment whatsoever to the Rawbar Sublease without Lender's prior written
consent, which Lender may grant or withhold in its reasonable discretion; or (4)
any election by the landlord under the Rawbar Sublease (or its trustee in
bankruptcy) to reject the Rawbar Sublease pursuant to section 365(h) of the
Federal Bankruptcy Code of I 978 (or any successor provision) or under any
similar law or right of any nature.
Section 9.6. Restaurant Sublease. (1) any default or "Event of Default"
by Bayshore Restaurant under the Restaurant Sublease that remains uncured after
any applicable grace or cure period contained within the Restaurant Sublease;
(2) Lender's receipt of any notice from the landlord under the Restaurant
Sublease of intention to terminate the Restaurant Sublease for any reason
whatsoever,~' or any termination or purported termination of the Restaurant
Sublease (whether voluntarily or by operation of law) subject to the expiration
of any grace or cure period specified in said notice; (3) any surrender,
termination, cancellation, release, modification, change, supplement, alteration
or amendment whatsoever to the Restaurant Sublease without Lender's prior
written consent, which Lender may grant or withhold in its reasonable
discretion; or (4) any election by the landlord under the Restaurant Sublease
(or its trustee in bankruptcy) to reject the Restaurant Sublease pursuant to
section 365(h) of the Federal Bankruptcy Code of I 978 (or any successor
provision) or under any similar law or right of any nature.
Section 9.7. intentionally deleted
Section 9.8. intentionally deleted
Section 9.9. State Waivers (1) any default or "Event of Default" under
the State Waivers that remains uncured after any applicable grace or cure period
contained therein; (2) Lender's receipt of any notice from the City, the State
or any other Person of intention to terminate the State Waivers for any reason
whatsoever, or any termination or purported termination of the State Waivers
(whether voluntarily or by operation of law) subject to the expiration of any
grace or cure period specified in said notice; (3) any surrender, termination,
cancellation, release, modification, change, supplement, alteration or amendment
whatsoever to the State Waivers without Lender's prior written consent, which
Lender may grant or withhold in its reasonable discretion; or (4) any election
by the City, the State Agency or any other Person (or a trustee in bankruptcy)
to reject the State Waivers pursuant to section 365(h) of the Federal Bankruptcy
Code of 1978 (or any successor provision) or under any similar law or right of
any nature.
Section 9.10. intentionally deleted
Section 9.11. Debt Service Coverage Ratio Covenant. Borrowers' failure
to maintain the Debt Service Coverage Ratio as required under Section 8.12 of
this Agreement.
Section 9.12. Hedge Documents. Any "Event of Default" by Bayshore
Landing under the Hedge Documents.
42
Section 9.13. Covenants. Any Borrower's failure to perform or observe
any of the other agreements and covenants contained in this Agreement or in any
of the other Loan Documents and the continuance of such failure for thirty (30)
days after notice by Lender to Bayshore Landing; however, subject to any shorter
period for curing any failure by Borrowers as specified in any of the other Loan
Documents, Borrowers shall have an additional thirty (30) days to cure such
failure if (1) such failure does not involve the failure to make payments on a
monetary obligation; (2) such failure is curable but cannot reasonably be cured
within the initial thirty (30) day period; (3) Borrowers are diligently
undertaking to cure such default, and (4) Borrowers have provided Lender with
security reasonably satisfactory to Lender against any interruption of payment
or impairment of collateral as a result of such continuing failure. The notice
and cure provisions of this Section 9. 13 do not apply to the Events of Default
described in any other Section of this Article 9.
Section 9.14. Representations and Warranties. Any representation or
warranty made in any Loan Document proves to be untrue in any material respect
when made or deemed made, or if any report, statement, certificate, schedule or
other document or information furnished (whether prior to, on or after the date
of this Agreement) in connection with this Agreement or any of the other Loan
Documents shall prove to have been false or misleading when furnished in any way
reasonably deemed material by Lender.
Section 9.15. Other Encumbrances. Any default under any document or
instrument, other than the Loan Documents, evidencing or creating a Lien on the
Mortgaged Property or any part thereof. `
Section 9.16. Involuntary Bankruptcy or Other Proceeding. Commencement
of an involuntary case or other proceeding against any Borrower, any Borrower
Party or any other Person having an ownership or security interest in the
Mortgaged Property (each, a `Bankruptcy Party") which seeks liquidation,
reorganization or other relief with respect to it or its debts or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeks the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any of its property, and such
involuntary case or other proceeding shall remain undismissed or unstayed for a
period of 90 days; or an order for relief against a Bankruptcy Party shall be
entered in any such case under the Federal Bankruptcy Code.
Section 9.17. Voluntary Petitions, etc. Commencement by a Bankruptcy
Party of a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its Debts or other
liabilities under any bankruptcy, insolvency or other similar law or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official for it or any of its property, or consent by a Bankruptcy Party to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or the making
by a Bankruptcy Party of a general assignment for the benefit of creditors, or
the failure by a Bankruptcy Party, or the admission by a Bankruptcy Party in
writing of its inability, to pay its debts generally as they become due, or any
action by a Bankruptcy Party to authorize or effect any of the foregoing;
43
Section 9.18 Guaranty Defaults. If any Guarantor shall default in the
due observance or performance of any term, covenant or condition in its/his
Guaranty or any other Loan Document.
Section 9.19. intentionally deleted
Section 9.20. Default Under Other Obligations. If any other obligation
now or hereafter owed by any Borrower or any Borrower Party to Lender shall be
in default and not be cured within the grace period, if any, provided therein,
or any Borrower or any such Borrower Party shall be in default under any
obligation in excess of $50,000 owed to any other obligee, or a material default
by any Borrower in payment or performance of any of its obligations under other
any contracts or agreements.
Section 9.21. Material Adverse Change. If there shall occur any change
in the condition (financial or otherwise) of any Borrower and/or any Borrower
Party which, in the reasonable opinion of Lender, could have a Material Ad verse
Effect. `Material Adverse Effect" means any (1) material adverse effect upon the
validity, performance or enforceability of any of the Loan Documents or any of
the transactions contemplated hereby or thereby, (2) material adverse effect
upon the properties, business, prospects or condition (financial or otherwise)
of any Borrower and/or any Borrower Party, or (3) material adverse effect upon
the ability of any Borrower or any Borrower Party to fulfill any obligation
under any of the Loan Documents.
Section 9.22. General Contractor. The bankruptcy or insolvency of the
General Contractor, unless not later than fifteen (15) days thereafter, such
General Contractor is substituted by another general contractor acceptable to
Lender, or the termination of the Construction Contract without Lender's prior
written approval.
Section 9.23. Commencement and Completion of Construction; Plans and
Specifications. Subject to Excusable Delays, failure to commence construction of
the Project by that date that is one hundred twenty (120) days after the date of
this Agreement or failure to complete the Project in accordance with the Plans
and Specifications in the judgment of Lender's Inspector on or before the
Completion Date or changes in the Plans and Specifications are made without
securing the prior express written consent of Lender as required.
Section 9.24. Progress of Construction. Failure to proceed with
reasonable diligence with the construction of the Project in the judgment of
Lender's Inspector, or abandonment of or cessation of work on the Project, at
any time prior to the completion of the Project, for a period of more than
fifteen (15) days.
ARTICLE 10.
REMEDIES
Section 10.1. Remedies - Insolvency Events. Upon the occurrence of any
Event of Default described in Section 9.16 or 9.17, the obligations of Lender to
advance amounts hereunder shall immediately terminate, and all amounts due under
the Loan Documents immediately shall become due and payable, all without written
notice and without presentment,
44
demand, protest, notice of protest or dishonor, notice of intent to accelerate
the maturity thereof, notice of acceleration of the maturity thereof, or any
other notice of default of any kind, all of which are hereby expressly waived by
Borrowers; however, if the Bankruptcy Party under Section 9.16 or 9.17 is other
than any Borrower or a Borrower Party, then all amounts due under the Loan
Documents shall become immediately due and payable at Lender's election, in
Lender's sole discretion.
Section 10.2. Remedies - Other Events. Except as set forth in Section
10.1 above, while any Event of Default exists, Lender may (1) by written notice
to Bayshore Landing, declare the entire Loan to be immediately due and payable
without presentment, demand, protest, notice of protest or dishonor, notice of
intent to accelerate the maturity thereof, notice of acceleration of the
maturity `thereof, or other notice of default of any kind, all of which are
hereby expressly waived by Borrowers, (2) terminate the obligation, if any, of
Lender to make any further Advance hereunder, and (3) exercise all rights and
remedies therefor under the Loan Documents and at law or in equity.
Section 10.3. Lender's Right to Perform the Obligations. If any
Borrower shall fail, refuse or neglect to make any payment or perform any act
required by the Loan Documents, then while any Event of Default exists, and
without notice to or demand upon any Borrower and without waiving or releasing
any other right, remedy or recourse Lender may have because of such Event of
Default, Lender may (but shall not be obligated to) make such payment or perform
such act for the account of and at the expense of Borrowers, and shall have the
right to enter upon the Mortgaged Property for such purpose and to take all such
action thereon and with respect to the Mortgaged Property as it may deem
necessary or appropriate. If Lender shall elect to pay any sum due with
reference to the Mortgaged Property, Lender may do so in reliance on any xxxx,
statement or assessment procured from the appropriate governmental authority or
other issuer thereof without inquiring into the accuracy or validity thereof.
Similarly, in making any payments to protect the security intended to be created
by the Loan Documents, Lender shall not be bound to inquire into the validity of
any apparent or threatened adverse title, lien, encumbrance, claim or charge
before making an advance for the purpose of preventing or removing the same.
Without limiting the generality of the foregoing, Lender may take immediate
possession of the Mortgaged Property, as well as all other security to which
title is held by any Borrower as is necessary to fully complete the Project, and
appoint a receiver, as a matter of strict right without regard to the solvency
of any Borrower, for the purpose of preserving the Mortgaged Property,
preventing waste, and to protect all rights accruing to Lender by virtue of this
Agreement and of the Loan Documents, and expressly to make any and all further
improvements, whether on-site or off-site, as may be determined by Lender for
the purpose of completing the development and construction of the Project.
Additionally, if any Hazardous Materials affect or threaten to affect the
Mortgaged Property, Lender may (but shall not be obligated to) give such notices
and take such actions as it deems necessary or advisable in order to xxxxx the
discharge of any Hazardous Materials or remove the Hazardous Materials.
Borrowers shall indemnify Lender for all losses, expenses, damages, claims and
causes of action, including reasonable attorneys' fees, incurred or accruing by
reason of any acts performed by Lender pursuant to the provisions of this
Section 10.3, including those arising from the joint, concurrent, or comparative
negligence of Lender, except as a result of Lender's gross negligence or willful
misconduct. All sums paid by Lender pursuant to this Section 10.3, and all other
sums expended by Lender to which it shall be entitled to be indemnified,
together with interest thereon
45
at the Default Rate from the date of such payment or expenditure until paid,
shall constitute additions' to the Loan, shall be secured by the Loan Documents
and shall be paid by Borrowers to Lender not later than thirty (30) days after
demand.
ARTICLE 11.
MISCELLANEOUS
Section 11.1. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and either shall be mailed by certified
mail, postage prepaid, return receipt requested, or sent by overnight air
courier service, or personally delivered to a representative of the receiving
party, or sent by telecopy (provided an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise
provided in this Section 11.1). All such communications shall be mailed, sent or
delivered, addressed to the party for whom it is intended at its address set
forth below.
If to any Borrower:
000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx, 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
Telecopy:(000) 000-0000
With copies to:
Bilzin Xxxxxxx Xxxxx Price and Axeirod LLP
2500 Wachovia Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 3313 1-2336
Attn: Xxxxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
HMG Bayshore LLC
0000 X. Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
If to Lender:
Wachovia Bank, National Association
Commercial Banking
000 X. Xxxxxxxx Xxxxxxxxx, X 0x)x Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx, Senior Vice President
Telecopy: (000) 000-0000
With copies to:
Wachovia Bank, National Association
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Commercial Banking Notices
Any communication so addressed and mailed shall be deemed to be given on the
earliest of (1) when actually delivered, (2) on the first Business Day after
deposit with an overnight air courier
46
service, or (3) on the third Business Day after deposit in the United States
mail, postage prepaid, in each case to the address of the intended addressee
(except as otherwise provided' in the Mortgage), and any communication so
delivered in person shall be deemed to be given when receipted for by, or
actually received by Lender or Borrowers, as the case may be. If given by
telecopy, a notice shall be deemed given and received when the telecopy is
transmitted to the party's telecopy number specified above, and confirmation of
complete receipt is received by the transmitting party during normal business
hours or on the next Business Day if not confirmed during normal business hours,
and an identical notice is also sent simultaneously by mail, overnight courier,
or personal delivery as otherwise provided in this Section 11.1. Either party
may designate a change of address by written notice to the other by giving at
least ten (10) days prior written notice of such change of address.
Section 11.2 Amendments and Waivers. No amendment or waiver of any
provision of the Loan Documents shall be effective unless in writing and signed
by the party against whom enforcement is sought.
Section 11.3. Limitation on Interest. It is the intention of the
parties hereto to conform strictly to applicable usury laws. Accordingly, all
agreements between any Borrower and Lender with respect to the Loan are hereby
expressly limited so that in no event, whether by reason of acceleration of
maturity or otherwise, shall the amount paid or agreed to be paid to Lender or
charged by Lender for the use, forbearance or detention of the money to be lent
hereunder or otherwise, exceed the maximum amount allowed by law. If the Loan
would be usurious under applicable law (including the laws of the State and the
laws of the United States of America), then, notwithstanding anything to the
contrary in the Loan Documents: (I) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received under the Loan Documents shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on the Note by the holder thereof (or, if the
Note has been paid in full, refunded to Borrowers); and (2) if maturity is
accelerated by reason of an election by Lender, or in the event of any
prepayment, then any consideration which constitutes interest may never include
more than the maximum amount allowed by applicable law. In such case, excess
interest, if any, provided for in the Loan Documents or otherwise, to the extent
permitted by applicable law, shall be amortized, prorated, allocated and spread
from the date of advance until payment in full so that the actual rate of
interest is uniform through the term hereof. If such amortization, proration,
allocation and spreading is not permitted under applicable law, then such excess
interest shall be cancelled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall be credited on the Note (or, if the
Note has been paid in full, refunded to Borrowers). The terms and provisions of
this Section 11.3 shall control and supersede every other provision of the Loan
Documents. The Loan Documents are contracts made under and shall be construed in
accordance with and governed by the laws of the State, except that if at any
time the laws of the United States of America permit Lender to contract for,
take, reserve, charge or receive a higher rate of interest than is allowed by
the laws of the State (whether such federal laws directly so provide or refer to
the law of any state), then such federal laws shall to such extent govern as to
the rate of interest which Lender may contract for, take, reserve, charge or
receive under the Loan Documents.
47
Section 11.4. Invalid Provisions. If any provision of any Loan Document
is held to be illegal, invalid or unenforceable, such provision shall be fully
severable; the Loan Documents shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof
the remaining provisions thereof shall remain in full effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom; and in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as a part of such Loan Document a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible to be legal, valid and enforceable.
Section 11.5. Reimbursement of Expenses. Borrowers shall pay all
expenses incurred by Lender in connection with the Loan, including reasonable
fees and expenses of Lender's attorneys, environmental, engineering and other
consultants, and fees, charges or taxes for the recording or filing of Loan
Documents. Borrowers shall pay all expenses of Lender in connection with the
administration of the Loan, including reasonable audit costs, reasonably
inspection fees, settlement of condemnation and casualty awards, and premiums
for title insurance and endorsements thereto. Borrowers shall, upon request,
promptly reimburse Lender for all amounts expended, advanced or incurred by
Lender to collect the Note, or to enforce the rights of Lender under this
Agreement or any other Loan Document, or to defend or assert the rights and
claims of Lender under the Loan Documents or with respect to the Mortgaged
Property (by litigation or other proceedings), which amounts will include all
court costs, reasonable attorneys' fees and expenses, reasonable fees of
auditors and accountants, and reasonable investigation expenses as may be
incurred by Lender in connection with any such matters (whether or not
litigation is instituted), together with interest at the Default Rate on each
such amount from the date of disbursement until the date of reimbursement to
Lender, all of which shall constitute part of the Loan and shall be secured by
the Loan Documents and shall be paid by Borrowers to Lender not later than
thirty (30) days after demand.
Section 11.6. Approvals; Third Parties; Conditions. All approval rights
retained or exercised by Lender with respect to leases, contracts, plans,
studies and other matters are solely to facilitate Lender's credit underwriting,
and shall not be deemed or construed as a determination that Lender has passed
on the adequacy thereof for any other purpose and may not be relied upon by any
Borrower or any other Person. This Agreement is for the sole and exclusive use
of Lender and Borrowers and may not be enforced, nor relied upon, by any Person
other than Lender and Borrowers. All conditions of the obligations of Lender
hereunder, including the obligation to make Advances, are imposed solely and
exclusively for the benefit of Lender, its successors and assigns, and no other
Person shall have standing to require satisfaction of such conditions or be
entitled to assume that Lender will refuse to make Advances in the absence of
strict compliance with any or all of such conditions, and no other Person shall,
under any circumstances, be deemed to be a beneficiary of such conditions, any
and all of which may be freely waived in whole or in part by Lender at any time
in Lender's sole discretion. Without limiting the generality of the foregoing
the parties hereto do not intend the benefits of this Agreement to inure to any
third party. Notwithstanding anything contained herein or any other Loan
Document, or any conduct or course of conduct by any of the parties hereto, this
Agreement shall not be construed as creating any rights, claims, or causes of
action against Lender, or any of its officers, agents, or employees, in favor of
any contractor, subcontractor, supplier of labor, materials or services, or any
of their respective creditors, or any other person or entity other than
Borrowers.
48
Section 11.7. Lender Not in Control; No Partnership. None of the
covenants or other provisions contained in this Agreement shall, or shall be
deemed to, give Lender the right or power to exercise control over the affairs
or management of any Borrower, the power of Lender being limited to the rights
to exercise the remedies referred to in the Loan Documents. The relationship
between Borrowers and Lender is, and at all times shall remain, solely that of
debtor and creditor. No covenant or provision of the Loan Documents is intended,
nor shall it be deemed or construed, to create a partnership, joint venture,
agency or common interest in profits or income between Lender and any Borrower
or to create an equity in the Mortgaged Property in Lender. Lender neither
undertakes nor assumes any responsibility or duty to any Borrower or to any
other person with respect to the Mortgaged Property or the Loan, except as
expressly provided in the Loan Documents; and notwithstanding any other
provision of the Loan Documents: (1) Lender is not, and shall not be construed
as, a partner, joint venturer, alter ego, manager, controlling person or other
business associate or participant of any kind of any Borrower or its members or
managers and Lender does not intend to ever assume such status; (2) Lender shall
in no event be liable for any Debts, expenses or losses incurred or sustained by
any Borrower; and (3) Lender shall not be deemed responsible for or a
participant in any acts, omissions or decisions of any Borrower or its members
or managers. Lender and Borrowers disclaim any intention to create any
partnership, joint venture, agency or common interest in profits or income
between Lender and any Borrower, or to create an equity in the Mortgaged
Property in Lender, or any sharing of liabilities, losses, costs or expenses.
Section 11.8. Time of the Essence. Time is of the essence with respect
to this Agreement.
Section 11.9. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Lender and Borrowers and their respective
successors and assigns of Lender and Borrowers, provided that neither any
Borrower nor any other Borrower Party shall, without the prior written consent
of Lender, assign any rights, duties or obligations hereunder. Lender shall have
the right to enter into one or more participation with other lenders with
respect to the Loan, provided Borrowers shall incur no additional cost or
expense solely relating to the entry by Lender into any such participation. Upon
prior notice to Bayshore Landing of such participation, Borrowers shall
thereafter furnish to such participant any information furnished by any Borrower
to Lender pursuant to the terms of the Loan Documents. Nothing in this Agreement
or any other Loan Document shall prohibit Lender from pledging or assigning this
Agreement and Lender's rights under any of the other Loan Documents, including
collateral therefor, to any Federal Reserve Bank in accordance with applicable
law.
Section 11.10. Renewal, Extension or Rearrangement. All provisions of
the Loan Documents shall apply with equal effect to each and all promissory
notes and amendments thereof hereinafter executed which in whole or in part
represent a renewal, extension, increase or rearrangement of the Loan. For
portfolio management purposes, Lender may elect to divide the Loan into two or
more separate loans evidenced by separate promissory notes so long as the
payment and other obligations of Borrowers are not effectively increased or
otherwise modified. Borrowers agree to cooperate with Lender at no additional
cost to Borrowers and to execute such documents as Lender reasonably may request
to effect such division of the Loan.
49
Section 11.11. Waivers. No course of dealing on the part of Lender, its
officers, employees, consultants or agents, nor any failure or delay by Lender
with respect to exercising any right, power or privilege of Lender under any of
the Loan Documents, shall operate as a waiver thereof.
Section 11.12. Cumulative Rights. Rights and remedies of Lender under
the Loan Documents shall be cumulative, and the exercise or partial exercise of
any such right or remedy shall not preclude the exercise of any other right or
remedy.
Section 11.13. Singular and Plural. Words used in this Agreement and
the other Loan Documents in the singular, where the context so permits, shall be
deemed to include the plural and vice versa. The definitions of words in the
singular in this Agreement and the other Loan Documents shall apply to such
words when used in the plural where the context so permits and vice versa.
Section 11.14. Phrases. When used in this Agreement and the other Loan
Documents, the phrase "including" shall mean "including, but not limited to,"
the phrase "satisfactory to Lender" shall mean "in form and substance
satisfactory to Lender in all respects," the phrase "with Lender's consent" or
"with Lender's approval" shall mean such consent or approval at Lender's
discretion, and the phrase "acceptable to Lender" shall mean "acceptable to
Lender at Lender's sole discretion."
Section 11.15. Schedules. The schedules attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein.
Section 11.16. Titles of Articles, Sections and Subsections. All titles
or headings to articles, sections, subsections or other divisions of this
Agreement and the other Loan Documents or the schedules hereto and thereto are
only for the convenience of the parties and shall not be construed to have any
effect or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
Section 11.17. Promotional Material. Borrowers authorize Lender to
issue press releases, advertisements and other, promotional materials in
connection with Lender's own promotional and marketing activities, and
describing the Loan in general terms or in detail and Lender's participation in
the Loan. All references to Lender contained in any press release, advertisement
or promotional material issued by any Borrower shall be approved in writing by
Lender in advance of issuance.
Section 11.18. Survival. All of the representations, warranties,
covenants, and indemnities hereunder (including environmental matters under
Article 4), and under the indemnification provisions of the other Loan Documents
shall survive the repayment in full of the Loan and the release of the liens
evidencing or securing the Loan, and shall survive the transfer (by sale,
foreclosure, conveyance in lieu of foreclosure or otherwise) of any or all
right, title and interest in and to the Mortgaged Property to any party, whether
or not an Affiliate of any Borrower.
50
Section 11.19. Waiver of Punitive or Consequential Damages. Neither
Lender nor Borrowers shall be responsible or liable to the other or to any other
Person for any punitive, exemplary or consequential damages which may be alleged
as a result of the Loan or the transaction contemplated hereby, including any
breach or other default by any party hereto.
Section 11.20. Governing Law. The Loan Documents are being executed and
delivered, and are intended to be performed, in the State and the laws of the
State (without regard to provisions thereof regarding conflicts of law) and of
the United States of America shall govern the rights and duties of the parties
hereto and the validity, construction, enforcement and interpretation of the
Loan Documents, except to the extent otherwise specified in any of the Loan
Documents.
Section 11.21. Joint and Several Liability. The obligations and
promises set forth herein shall be joint and several undertakings of each of the
Borrowers, and the Lender may proceed hereunder against any one or more of the
Borrowers without waiving its right to proceed against any of the others.
Section 11.22. Entire Agreement. This Agreement and the other Loan
Documents embody the entire agreement and understanding between Lender and
Borrowers and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof. Accordingly, the Loan
Documents may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. There are m unwritten oral agreements
between the parties. If any conflict or inconsistency exists between the
Commitment and this Agreement or any of the other Loan Documents, the terms of
this Agreement and the other Loan Documents shall control.
Section 11.23. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
Section 11.24. City Lease. As set forth in the City Lease, the Mortgage
is subject and subordinate to all conditions and covenants of the City Lease and
the rights of the City and the State as to the property subject to the State
Lease. Lender and the owner of any indebtedness secured by the Mortgage, upon
acquiring Bayshore Landing's leasehold interest under the City Lease, and shall
take the same subject to the terms, covenants and provisions of the City Lease.
Lender agrees to notify the City of any Event of Default prior to commencing
foreclosure proceedings.
51
ARTICLE 12
LIMITATION ON LIABILITY
Section 12.1. Limitation on Liability. Except as provided in this
Article 12, Bayshore Rawbar and Bayshore Restaurant shall not be personally
liable for amounts due under the Loan Documents. Bayshore Rawbar and Bayshore
Restaurant shall be personally liable jointly and severally to Lender for any
deficiency, loss or damage suffered by Lender because of: (1) any Borrower's or
any Borrower Party's commission of a criminal act, (2) the failure to comply
with provisions of the Loan Documents prohibiting the sale, transfer or
encumbrance of the Project, any other collateral, or any direct or indirect
ownership interest in any Borrower; (3) the misapplication by any Borrower or
any Borrower Party of any funds derived from the Mortgaged Property or any
portion thereof, including without limitation, restaurant revenues, security
deposits, insurance proceeds and condemnation awards; (4) the fraud or
misrepresentation by any Borrower or any Borrower Party made in or in connection
with the Loan Documents or the Loan; (5) any Borrower's collection of rents more
than one month in advance or entering into or modifying leases (including
without limitation, the City Lease, the State Lease, the Rawbar Sublease and the
Restaurant Sublease), or receipt of monies by any Borrower or any Borrower Party
in connection with the modification of any leases, in violation of this
Agreement or any of the other Loan Documents; (6) any Borrower's failure to
apply proceeds of rents or any other payments in respect of the leases or other
income generated by the Mortgaged Property or any portion thereof, including
without limitation, restaurant revenues, to the costs of maintenance and
operation of the Project and to the payment of taxes, lien claims, insurance
premiums, payment of principal and interest under the Loan and all other amounts
due under the Loan Documents; (7) any Borrower's interference with Lender's
exercise of rights under any of the Loan Documents; (8) any Borrower's failure
to maintain insurance as required by this Agreement or to pay any taxes or
assessments affecting the Mortgaged Property or any portion thereof; (9) damage
or destruction to the Mortgaged Property or any portion thereof caused by the
acts or omissions of any Borrower, their agents, employees, or contractors; (10)
Borrowers' obligations with respect to environmental matters under Article 4; or
(11) any transfer by Bayshore Landing to Bayshore Rawbar or Bayshore Restaurant
of any monies or other property not required to be transferred pursuant to the
terms of the Rawbar Sublease or Restaurant Sublease, as applicable. None of the
foregoing limitations on the personal liability of Bayshore Rawbar and Bayshore
Restaurant shall modify, diminish or discharge the personal liability of
Bayshore Landing or any of the Guarantors. Nothing herein shall be deemed to be
a waiver of any right which Lender may have under Sections 506(a), 506(b),
1111(b) or any other provision of the United States Bankruptcy Code, as such
sections may be amended, or corresponding or superseding sections of the
Bankruptcy Amendments and Federal Judgeship Act of 1984, to file a claim for the
full amount due to Lender under the Loan Documents or to require that all
collateral shall continue to secure the amounts due under the Loan Documents.
WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS
AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER
OR IN
52
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THE
LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN OR THE MORTGAGED PROPERTY
(INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT,
AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED
OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR
LENDER TO ENTER THIS AGREEMENT.
EXECUTED as of the date first written above.
LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ XXXXX XXXX
Xxxxx Xxxx
Senior Vice President
BORROWERS:
BAYSHORE LANDING, LLC, a Florida limited
liability company
By: /s/ XXXXXX X. XXXXXXXXX, XX.
XXXXXX X. XXXXXXXXX, XX.
Manager
By: /s/ XXXXX XXXXXXXXX
XXXXX XXXXXXXXX
Manager
BAYSHORE RAWBAR, LLC, a Florida limited
liability company
By: /s/ XXXXXX X. XXXXXXXXX, XX.
XXXXXX X. XXXXXXXXX, XX.
Manager
53
By: /s/ XXXXX XXXXXXXXX
XXXXX XXXXXXXXX
Manager
BAYSHORE RESTAURANT, LLC, a Florida limited
liability company
By: /s/ XXXXXX X. XXXXXXXXX, XX.
XXXXXX X. XXXXXXXXX, XX.
Manager
By: /s/ XXXXX XXXXXXXXX
XXXXX XXXXXXXXX
Manager
54
SCHEDULE A
LEGAL DESCRIPTION OF MORTGAGED PROPERTY
XXXX 00, 00 XXX 00 XXX XXX XXXXXXXXXXXXX HALF OF XXX 00, XXXXX 00, XX "XXXXXX
XXXXXX XXXX OF NEW BISCAYNE", ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT
BOOK "B" AT PAGE 16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; LESS
THE NORTHWESTERLY 4 FEET THEREOF, AS RIGHT-OF-WAY DEDICATED TO THE CITY OF
MIAMI.
PARCEL 2:
A PARCEL OF SUBMERGED LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(COMMENCE AT THE NORTHERLY CORNER OF XXX 00, XXXXX 00, XX "XXXXXX XXXXXX XXXX OF
NEW BISCAYNE", ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK "B" AT PAGE
16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA: THENCE SOUTH 40 DEGREES
23 MINUTES 32 SECONDS EAST ALONG THE NORTHERLY LINE OF SAID LOT 20 AND ITS
SOUTHEASTERLY PROLONGATION THEREOF FOR 691.46 FEET, MORE OR LESS, TO A POINT OF
INTERSECTION WITH THE MIAMI-DADE COUNTY BULKHEAD LINE (U.S. HARBOR LINE) AS
RECORDED IN PLAT BOOK 74, AT PAGE 3 (SHEET 5), OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA, SAID POINT BEING THE POINT OF BEGINNING OF THE
FOLLOWING DESCRIBED PARCEL OF SUBMERGED LAND; THENCE CONTINUE SOUTH 40 DEGREES
23 MINUTES 32 SECONDS EAST ALONG THE SAID SOUTHEASTERLY PROLONGATION OF THE
NORTHEASTERLY L1NE OF LOT 20 FOR 270.0 FEET; THENCE SOUTH 49 DEGREES 33 MINUTES
29 SECONDS WEST FOR 166.94 FEET, MORE OR LESS TO THE POINT OF INTERSECTION WITH
THE SOUTHEASTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY
1/2 OF SAID XXX 00, XXXXX 00; THENCE NORTH 40 DEGREES 23 MINUTES 32 SECONDS WEST
ALONG THE SOUTHEASTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THE
NORTHEASTERLY 1/2 OF SAID LOT 23 FOR 1 83 .76 FEET, MORE OR LESS, TO A POINT OF
INTERSECTION WITH THE SAID MIAMI-DADE COUNTY BULKHEAD LINE THENCE NORTH 21
DEGREES 41 MINUTES 51 SECONDS EAST ALONG SAID MIAMI-DADE COUNTY BULKHEAD LINE
(U.S. HARBOR LINE) FOR 184.53 FEET, MORE OR LESS; THENCE NORTH 49 DEGREES 33
MINUTES 29 SECONDS EAST ALONG SAID MIAMI-DADE COUNTY BULKHEAD LINE FOR 3.87
FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
PARCEL 3:
XXX 00 XXX XXX XXXXXXXXXXXXX XXXX XX XXX 00, XXXXX 43, OF "XXXXXX XXXXXX PLAT OF
NEW BISCAYNE", ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK "B", AT PAGE
16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; LESS THE NORTHWESTERLY
4 FEET THEREOF, AS RIGHT-OF-WAY DEDICATED TO THE CITY OF MIAMI.
PARCEL 4:
A PARCEL OF SUBMERGED LAND IN BISCAYNE BAY IN SECTION 00, XXXXXXXX 00 XXXXX,
XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, LYING SOUTHEASTERLY OF AND ABUTTING
XXX 00 XXX XXX XXXXXXXXXXXXX XXX-XXXX XX XXX 00 (LESS THE NORTHERLY 4 FEET
THEREOF) OF BLOCK 43 OF "XXXXXX XXXXXX AMENDED MAP OF NEW BISCAYNF', AS RECORDED
IN PLAT BOOK "B", PAGE 16, OF THE PUBLIC RECORDS
55
OF MIAMI-DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: `
BEGIN AT THE SOUTHWESTERLY CORNER OF SAID LOT 24, SAID CORNER BEING IN THE MEAN
HIGH WATER LINE OF BISCAYNE BAY; THENCE SOUTH 40 DEGREES 23 MINUTES 32 SECONDS
EAST ALONG THE SOUTHEASTERLY EXTENSION OF THE SOUTHWESTERLY LINE OF SAID LOT 24,
A DISTANCE OF 538.57 FEET TO A POINT IN THE BULKHEAD LINE ESTABLISHED FOR THIS
AREA AS SHOWN ON MAP IN PLAT BOOK 74, PAGE 3 (SHEET 5), OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 21 DEGREES 41 MINUTES 51 SECONDS EAST
ALONG SAID BULKHEAD LINE A DISTANCE OF 84.87 FEET TO THE INTERSECTION WITH THE
SOUTHEASTERLY EXTENSION OF NORTHEASTERLY LINE OF THE SAID SOUTHWESTERLY ONE-HALF
OF LOT 23; THENCE NORTH 40 DEGREES 23 MINUTES 32 SECONDS WEST ALONG SAID
SOUTHEASTERLY EXTENSION A DISTANCE OF 497.47 FEET TO THE MEAN HIGH WATER LINE OF
BISCAYNE BAY; THENCE SOUTHWESTERLY ALONG SAID MEAN HIGH WATER LINE BOUNDARY OF
SAID SOUTHWESTERLY ONE-HALF OF XXX 00 XXX XX XXXX XXX 00, X DISTANCE OF 75.00
FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
PARCEL 5 :
A PARCEL OF SUBMERGED LAND MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT
THE INTERSECTION OF THE SOUTHEASTERLY EXTENSION OF THE SOUTHWESTERLY LINE OF XXX
00, XXXXX 00, XX XXX XXXX OF "NEW BISCAYNE AMENDED", AS SHOWN IN PLAT BOOK "B",
AT PAGE 16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA WITH THE
MIAMI-DADE COUNTY BULKHEAD LINE AS SHOWN IN PLAT BOOK 74, AT PAGE 3, (SHEET 5),
OF THE PUBLIC RECORDS OF MIAMI- DADE COUNTY, FLORIDA; THENCE RUN NORTH 21
DEGREES 41 MINUTES 51 SECONDS EAST ALONG SAID BULKHEAD LINE FOR A DISTANCE OF
84.87 FEET, TO ITS INTERSECTION WITH THE SOUTHEASTERLY EXTENSION OF THE
NORTHEASTERLY LINE OF THE SOUTHWESTERLY 1/2 OF XXX 00, XXXXX 00 XX XXX XXXXXXXXX
XXXX OF "NEW BISCAYNE AMENDED"; THENCE RUN SOUTH 40 DEGREES 23 MINUTES 32
SECONDS EAST ALONG THE SOUTHEASTERLY EXTENSION OF SAID NORTHEASTERLY LINE OF THE
SOUTHEASTERLY 1/2 OF LOT 23 FOR A DISTANCE OF 283.73 FEET (285.72 FEET
CALCULATED) TO A POINT; THENCE RUN SOUTH 49 DEGREES 36 MINUTES 28 SECONDS WEST
FOR A DISTANCE OF 115.68 FEET (114.64 FEET CALCULATED) TO A POINT; THENCE RUN
NORTH 40 DEGREES 23 MINUTES 32 SECONDS WEST FOR A DISTANCE OF 225.0 FEET TO A
POINT ON THE MIAMI-DADE COUNTY BULKHEAD LINE; THENCE NORTH 21 DEGREES 41 MINUTES
51 SECONDS EAST ALONG SAID BULKHEAD LINE FOR A DISTANCE OF 44.86 FEET TO THE
POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT OF SUBMERGED LAND. (SEE DEED
19448, RECORDED IN DEED BOOK 3130, PAGE 260).
PARCEL 6:
A PARCEL OF SUBMERGED LAND IN BISCAYME BAY IN SECTION 00, XXXXXXXX 00 XXXXX,
XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, LYING SOUTHEASTERLY OF XXXX 00, 00,
00 XXX XXX XXXXXXXXXXXXX XXXX OF XXX 00, XXXXX 00, "XXXXXX XXX XXXXXXXX
AMENDED", ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK "B", AT PAGE 16,
OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
56
COMMENCE AT THE SOUTHWEST CORNER OF THE SE 1/4 OF SECTION 15, TOWNSHIP 54 SOUTH,
RANGE 41 EAST, MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 87 DEGREES 30 MINUTES 21
SECONDS EAST, ALONG THE SOUTH LINE OF THE SE 1/4 OF SAID SECTION 15, FOR A
DISTANCE OF 34.46 FEET TO A POINT ON THE MONUMENT LINE OF XXXX STREET, AS
ESTABLISHED BY THE CITY OF MIAMI, FLORIDA; THENCE SOUTH 38 DEGREES 09 MINUTES 56
SECONDS EAST, ALONG THE SAID MONUMENT LINE OF XXXX STREET, FOR A DISTANCE OF
128.73 FEET TO A POINT ON THE MONUMENT LINE OF SOUTH BAYSHORE DRIVE, AS
ESTABLISHED BY THE CITY OF MIAMI, FLORIDA; THENCE SOUTH 51 DEGREES 56 MINUTES 48
SECONDS WEST, ALONG THE SAID MONUMENT LINE OF SOUTH BAYSHORE DRIVE, FOR A
DISTANCE OF 1,528.96 FEET TO THE INTERSECTION S THEREOF WITH THE PROLONGATION
NORTHWESTERLY OF THE NORTHEASTERLY LINE OF XXX 00, XXXXX 00 XX "XXXXXX XXX
XXXXXXXX AMENDED", PLAT BOOK "B", AT PAGE 16, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 40 DEGREES 23 MINUTES 32 SECONDS EAST,
ALONG THE PROLONGATION NORTHWESTERLY OF THE NORTHEASTERLY LINE OF THE SAID LOT
20 AND ALONG THE NORTHEASTERLY LINE OF THE SAID LOT 20 FOR A DISTANCE OF 724.46
FEET TO THE INTERSECTION THEREOF WITH THE MIAMI-DADE COUNTY BULKHEAD LINE, AS
ESTABLISHED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA
(POINT OF BEGINNING); THENCE SOUTH 49 DEGREES 33 MINUTES 29 SECONDS WEST, ALONG
THE SAID MIAMI-DADE COUNTY BULKHEAD LINE FOR A DISTANCE OF 3.97 FEET; THENCE
SOUTH 21 DEGREES 41 MINUTES 51 SECONDS WEST, ALONG THE SAID MIAMI-DADE COUNTY
BULKHEAD LINE, FOR A DISTANCE OF 184.49 FEET TO THE . INTERSECTION WITH THE
PROLONGATION SOUTHEASTERLY OF THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY HALF
OF LOT 23 OF SAID BLOCK 43; THENCE NORTH 40 DEGREES 28 MINUTES 32 SECONDS WEST,
ALONG THE PROLONGATION SOUTHEASTERLYo OF THE SOUTHWESTERLY LINE OF THE
NORTHEASTERLY HALF OF THE SAID LOT 23 FOR A DISTANCE OF 497.6 FEET, MORE OR
LESS, TO THE FACE OF AN EXISTING CONCRETE BULKHEAD; THENCE NORTHEASTERLY ALONG
THE FACE OF AN EXISTING CONCRETE BULKHEAD LINE, FOR A DISTANCE OF 10 FEET MORE
OR LESS; THENCE SOUTHEASTERLY, ALONG THE FACE OF AN EXISTING BULKHEAD FOR A
DISTANCE OF 82 FEET, MORE OR LESS; THENCE NORTHEASTERLY ALONG THE FACE OF AN
EXISTING BULKHEAD FOR A DISTANCE OF 53.9 FEET, MORE OR LESS; THENCE
SOUTHEASTERLY ALONG THE FACE OF AN EXISTING BULKHEAD FOR A DISTANCE OF 74.3
FEET, MORE OR LESS; THENCE NORTHEASTERLY ALONG THE FACE OF AN EXISTING BULKHEAD
FOR A DISTANCE OF 12 FEET, MORE OR LESS; THENCE NORTHWESTERLY, ALONG THE FACE OF
AN EXISTING BULKHEAD FOR A DISTANCE OF 52 FEET, MORE OR LESS; THENCE
NORTHEASTERLY, ALONG THE FACE OF AN EXISTING BULKHEAD, FOR A DISTANCE OF 17
FEET, MORE OR LESS; THENCE SOUTHEASTERLY, ALONG THE FACE OF AN EXISTING
BULKHEAD, FOR A DISTANCE OF 156.75 FEET, MORE OR LESS; THENCE NORTHEASTERLY,
ALONG THE FACE OF AN EXISTING BULKHEAD, FOR A DISTANCE OF 31 FEET, MORE OR LESS,
THENCE NORTHWESTERLY, ALONG THE FACE OF AN EXISTING BULKHEAD, FOR A DISTANCE OF
19 FEET, MORE OR LESS; THENCE NORTHEASTERLY FOR A DISTANCE OF 33 FEET, MORE OR
LESS, TO A POINT IN THE PROLONGATION SOUTHEASTERLY OF THE NORTHEASTERLY LINE OF
THE SAID LOT 20; THENCE SOUTH 40 DEGREES 23 MINUTES 32 SECONDS EAST, ALONG THE
PROLONGATION SOUTHEASTERLY ON THE NORTHEASTERLY LINE OF THE SAID LOT 20 FOR A
DISTANCE OF 164.4 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
57
PARCEL 7:
A PARCEL OF SOVEREIGNTY LAND, NOW FILLED, LYING IN BISCAYNE BAY IN SECTION 00,
XXXXXXXX 00 XXXXX, XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHWEST CORNER OF THE SE 1/4 OF SECTION 15, TOWNSHIP 54 SOUTH,
RANGE 41 EAST, MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 87 DEGREES 30 MINUTES 21
SECONDS EAST, ALONG THE SOUTH LINE OF THE SE 1/4 OF THE SAID SECTION 15, FOR A
DISTANCE OF 34.46 FEET TO A POINT ON THE MONUMENT LINE OF XXXX STREET, AS
ESTABLISHED BY THE CITY OF MIAMI, FLORIDA; THENCE SOUTH 38 DEGREES 09 MINUTES 56
SECONDS EAST, ALONG THE SAID MONUMENT LINE OF XXXX STREET, FOR A DISTANCE OF
128.73 FEET TO A POINT ON THE MONUMENT LINE OF SOUTH BAYSHORE DRIVE, AS
ESTABLISHED BY THE CITY OF MIAMI, FLORIDA; THENCE SOUTH 51 DEGREES 56 MINUTES 48
SECONDS WEST, ALONG THE SAID MONUMENT LINE OF SOUTH BAYSHORE DRIVE, FOR A
DISTANCE OF 1,528.96 FEET TO THE INTERSECTION THEREOF WITH THE PROLONGATION
NORTHWESTERLY OF THE NORTHEASTERLY LINE OF XXX 00, XXXXX 00 XX "XXXXXX XXX
XXXXXXXX AMENDED", PLAT BOOK "B", AT PAGE 16, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 40 DEGREES 23 MINUTES 32 SECONDS EAST,
ALONG THE PROLONGATION NORTHWESTERLY OF THE NORTHEASTERLY LINE OF THE SAID LOT
20 AND ALONG THE NORTHEASTERLY LINE OF THE SAID LOT 20 FOR A DISTANCE OF 323
FEET MORE OR LESS TO A POINT ON THE ORIGINAL HIGH TIDE LINE OF BISCAYNE BAY AS
SAID HIGH TIDE LINE IS SHOWN ON THE SAID PLAT OF "XXXXXX NEW BISCAYNE AMENDED";
(POINT OF BEGINNING); THENCE CONTINUE SOUTH 40 DEGREES 23 MINUTES 32 SECONDS
EAST ALONG THE PROLONGATION SOUTHEASTERLY OF THE NORTHEASTERLY LINE OF THE SAID
LOT 20; FOR A DISTANCE OF 237 FEET, MORE OR LESS, TO THE EXISTING HIGH TIDE LINE
OF BISCAYNE BAY; THENCE SOUTHWESTERLY, MEANDERING THE HIGH TIDE LINE OF BISCAYNE
BAY FOR A DISTANCE OF 33 FEET, MORE OR LESS, TO A POINT ON THE FACE OF AN
EXISTING BULKHEAD; THENCE SOUTHEASTERLY ALONG THE FACE OF AN EXISTING BULKHEAD
FOR A DISTANCE OF 19 FEET, MORE OR LESS; THENCE SOUTHWESTERLY ALONG THE FACE OF
AN EXISTING BULKHEAD FOR A DISTANCE OF 31 FEET, MORE OR LESS; THENCE
NORTHWESTERLY, ALONG THE FACE OF AN EXISTING BULKHEAD FOR A DISTANCE OF 156.75
FEET, MORE OR LESS; THENCE SOUTHWESTERLY ALONG THE FACE OF AN EXISTING BULKHEAD
FOR A DISTANCE OF 17 FEET, MORE OR LESS; THENCE SOUTHEASTERLY ALONG THE FACE OF
AN EXISTING BULKHEAD FOR A DISTANCE OF 52 FEET, MORE OR LESS; THENCE
SOUTHWESTERLY ALONG THE FACE OF AN EXISTING BULKHEAD FOR A DISTANCE OF 12 FEET,
MORE OR LESS; THENCE NORTHWESTERLY ALONG THE FACE OF AN EXISTING BULKHEAD FOR A
DISTANCE OF 74.3 FEET, MORE OR LESS; THENCE SOUTHWESTERLY ALONG THE FACE OF AN
EXISTING BULKHEAD FOR A DISTANCE OF 53.9 FEET, MORE OR LESS; THENCE
NORTHWESTERLY ALONG THE FACE OF AN EXISTING BULKHEAD FOR A DISTANCE OF 82 FEET
MORE OR LESS TO A POINT ON THE ORIGINAL HIGH TIDE LINE OF BISCAYNE BAY AS SHOWN
ON THE SAID PLAT OF "NEW BISCAYNE AMENDED"; THENCE NORTHEASTERLY MEANDERING THE
SAID ORIGINAL HIGH TIDE LINE OF BISCAYNE BAY FOR A DISTANCE OF 157 FEET, MORE OR
LESS TO THE POINT OF BEGINNING. AND ALL LANDS ALSO DESCRIBED IN WARRANTY DEED
DATED APRIL 17, 1968 AND FILED IN OFFICIAL RECORDS BOOK 5913, PAGES 253 AND 254
OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. THE AFORESAID PARCELS ARE TO BE
USED AS AN EASEMENT FOR INGRESS EGRESS FOR THE FOLLOWING PARCELS OF SUBMERGED
LAND:
58
PARCEL A2:
A PARCEL OF SUBMERGED LAND IN BISCAYNE BAY BEING IN SECTION 00, XXXXXXXX 00
XXXXX, XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHERLY CORNER OF XXX 00, XXXXX 00
"XXXXXX AMENDED PLAT OF NEW BISCAYNE", ACCORDING TO THE PLAT THEREOF AS RECORDED
IN PLAT BOOK B, AT PAGE 16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA;
THENCE SOUTH 40(degree)23'32" EAST ALONG THE NORTHERLY LINE OF SAID LOT 20 AND
ITS SOUTHEASTERLY PROLONGATION THEREOF FOR 691.46 FEET, MORE OR LESS, TO A PONT
OF INTERSECTION WITH THE MIAMI-DADE COUNTY BULKHEAD LINE (U.S. HARBOR LINE) AS
RECORDED IN PLAT BOOK 74, AT PAGE 3 (SHEET 5), OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA; THENCE CONTINUE SOUTH 40(degree)23'32" EAST ALONG
THE SAID SOUTHEASTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 20 FOR
270.0 FEET; THENCE SOUTH 49(degree)33'29" WEST FOR 41.09 FEET, MORE OR LESS TO
THE POINT OF BEGINNING OF THE HEREIN DESCRIBED SUBMERGED PARCEL OF LAND; THENCE
SOUTH 39(degree)25'15" EAST, 90.15 FEET; THENCE SOUTH 50(degree)34'45" WEST,
92.00 FEET; THENCE NORTH 39(degree)25'15" WEST, 88.51 FEET; THENCE NORTH
49(degree)33'29" EAST, 92.01 FEET TO THE POINT OF BEGINNING. CONTAINING 0.19+/-
ACRES.
PARCEL B2:
A PARCEL OF SUBMERGED LAND IN BISCAYNE BAY BEING IN SECTION 00, XXXXXXXX 00
XXXXX, XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS: COMMENCING AT THE INTERSECTION . OF THE SOUTHEASTERLY EXTENSION OF THE
SOUTHWESTERLY LINE OF XXX 00, XXXXX 00, XX XXX XXXX OF "NEW BISCAYNE AMENDED",
AS SHOWN IN PLAT BOOK "B", AT PAGE 16, OF THE PUBLIC RECORDS OF MIAMI-DADE
COUNTY, FLORIDA, WITH THE MIAMI-DADE COUNTY BULKHEAD LINE AS SHOWN IN PLAT BOOK
74, AT PAGE 3 (SHEET 5), OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA;
THENCE RUN S 21(degree)41'51" W ALONG SAID BULKHEAD LINE FOR A DISTANCE OF 44.86
FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF SUBMERGED LAND;
THENCE S 40(degree)23'32" E, 225.00 FEET; THENCE N 49(degree)36'28" E, 92.14
FEET; THENCE S 40(degree)23'32" E, 63.39 FEET; THENCE S 49(degree)36'28" W,
120.25 FEET; THENCE N 40(degree)23'32" W, 273.50 FEET TO A POINT ON THE
AFORESAID MIAMI-DADE COUNTY BULKHEAD LINE; THENCE N 21(degree)41'51" E ON SAID
BULKHEAD LINE, 31.81 FEET TO THE POINT OF BEGINNING. CONTAINING 0.315+/- ACRES.
PARCEL C2:
A PARCEL OF SUBMERGED LAND IN BISCAYNE BAY BEING IN SECTION 00, XXXXXXXX 00
XXXXX, XXXXX 41 EAST, MIAMI-DADE COUNTY, FLORIDA, LYING SOUTHEASTERLY OF XXX 00,
XXXXX 00, XX "XXXXXX XXXXXX XXXX OF NEW BISCAYNE", AS RECORDED IN PLAT BOOK "B",
PAGE 16, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHWESTERLY CORNER OF SAID LOT 24, SAID CORNER BEING THE MEAN
HIGH WATER LINE OF BISCAYNE BAY; THENCE S 40(degree)23'32"E ALONG THE
SOUTHEASTERLY EXTENSION OF THE SOUTHWESTERLY LINE OF SAID LOT 24, FOR 538.57
59
FEET TO A POINT IN THE MIAMI-DADE COUNTY BULKHEAD LINE ESTABLISHED FOR THIS AREA
AS SHOWN ON MAP IN PLAT BOOK 74, PAGE 3 (SHEET 5), OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA; THENCE S 21(degree)41'51" W ALONG SAID BULKHEAD
LINE, 67.75 FEET TO A POINT ON THE SOUTHEASTERLY LINE EXTENSION OF THE
SOUTHWESTERLY RIGHT-OF-WAY LINE OF AVIATION AVENUE; THENCE N 40(degree)23'32" W,
ALONG SAID SOUTHEASTERLY EXTENSION LINE OF SAID SOUTHWESTERLY RIGHT-OF- WAY
LINE, 88.93 FEET; THENCE N 49(degree)36'18" E, 25.98 FEET; THENCE N
40(degree)23'32" W, 460.24 FEET; THENCE S 57(degree)28'54" W, 26.23 FEET TO A
POINT ON THE AFOREMENTIONED SOUTHEASTERLY EXTENSION OF THE SOUTHWESTERLY
RIGHT-OF-WAY LINE OF AVIATION AVENUE; THENCE N 40(degree)23'32 W ON THE
AFOREMENTIONED EXTENSION OF THE AFORESAID RIGHT-OF-WAY LINE, 25.24 FEET TO THE
FACE OF AN EXISTING CONCRETE BULKHEAD; THENCE N 57(degree)28'54" E ALONG THE
FACE OF AN EXISTING CONCRETE BULKHEAD FOR A DISTANCE OF 60.57 FEET TO THE POINT
OF BEGINNING. CONTAINING 0.49+/- ACRES.
60
SCHEDULE 1.1(19)
CITY LEASE
That certain Lease Agreement by and between The City of Miami, Florida, a
municipal corporation of the State of Florida (the "City"), as landlord, and
Bayshore Properties, Inc. ("BPI"), as tenant, dated September 20, 1985; as
subsequently, assigned by BPI to Grove Marina Market, Ltd. by virtue of (i) that
certain Assignment of Lease dated Xxxxx 00, 0000, (xx) that certain Acceptance
of Assignment of Lease, dated March 14, 1 986, and (iii) that certain Consent by
and between the City and BPI dated March 13, 1986; and amended by virtue of :
(i) that certain Memorandum of Understanding dated Xxxxxx 00, 0000, (xx) that
certain Memorandum of Understanding dated September 10, 1993, that certain (iii)
Amendment to Lease Agreement dated November 14, 2001 ; and (iv) that certain
Second Amendment to Lease Agreement dated on or about August 19, 2004; and
further assigned by virtue of that certain Assignment and Assumption of Master
Lease between Grove Marina Market, Ltd and Bayshore Landing, LLC dated as of
August 19, 2004.
1
SCHEDULE 1.1 (21)
-----------------
CLOSING SITE ASSESSMENTS AND ENVIRONMENTAL DOCUMENTS
----------------------------------------------------
Phase I Environmental Site Assessment Report, Xxxxx'x Xxxxxx, Miami, Florida ,
dated as of July 21, 2004, prepared by The Phoenix Environmental Group, Inc.
1
SCHEDULE 1.1(67)
STATE LEASE
Sovereign Submerged Lands Lease between the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida as Lessor and the City of Miami,
Florida as Lessee recorded on August 11, 2004 in Official Records Book 22562 at
Page 1642.
1
SCHEDULE 1.1(15)
BUDGET
1
SCHEDULE 1.1(68)
STATE WAIVERS
Waiver of Deed Restrictions attached to Certificate, recorded on May 26, 2004,
in Official Records Book 22337, at Page 1498 in the Public Records of Miami-Dade
County, Florida, as modified by Amendment to Waiver of Deed Restrictions
recorded on August 13, 2004 in Official Records Book 22572 at Page 4690 in the
Public Records of Miami-Dade County, Florida. As modified by Modification to
Correct Legal Description, recorded on August 20, 2004 in Official Records Book
22593, at Page 3188 in the Public Records of Miami-Dade County, Florida.
1
SCHEDULE 2.5(1)
---------------
REPAYMENT AND PREPAYMENT SCHEDULE
---------------------------------
Remaining Principal
Payment Due Date Principal Payment Due Outstanding
---------------- --------------------- -------------------
(following scheduled principal
payment)
Aug 19, 2004 0.00 10,000,000.00
Sep 20, 2004 (272,916.67) 10,272,916.67
Oct 19, 2004 (272,916.67) 10,545,833.34
Nov 19, 2004 (272,916.67) 10,818,750.01
Dec 20, 2004 (272,916.67) 11,091,666.68
Jan 19, 2005 (272,916.67) 11,364,583.35
Feb 22, 2005 (272,916.67) 11,637,500.02
Mar 21, 2005 (272,916.67) 11,910,416.69
Apr 19, 2005 (272,916.67) 12,183,333.36
May 19, 2005 (272,916.67) 12,456,250.03
Jun 20, 2005 (272,916.67) 12,729,166.70
Jul 19, 2005 (272,916.67) 13,002,083.37
Aug 19, 2005 (272,916.67) 13,275,000.04
Sep 19, 2005 37,903.02 13,237,097.02
Oct 19, 2005 40,933.56 13,196,163.46
Nov 21, 2005 32,867.20 13,163,296.26
Dec 19, 2005 46,935.02 13,116,361.24
Jan 19, 2006 38,937.12 13,077,424.12
Feb 21, 2006 33,691.15 13,043,732.97
Mar 20, 2006 50,381.79 12,993,351.18
Apr 19, 2006 42,471.19 12,950,879.99
May 19, 2006 42,739.11 12,908,140.88
Jun 19, 2006 40,294.43 12,867,846.45
Jul 19, 2006 43,262.92 12,824,583.53
Aug 21, 2006 35,445.66 12,789,137.87
Sep 19, 2006 46,448.71 12,742,689.16
1
Oct 19, 2006 44,052.45 12,698,636.71
Nov 20, 2006 3 8,989.86 12,659,646.85
Dec 19, 2006 47,238.35 12,612,408.50
Jan 19, 2007 42,222.19 12,570,186.31
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Feb 20, 2007 39,854.19 12,530,332.12
Mar 19, 2007 53,296.62 12,477,035.50
Apr 19, 2007 43,104.64 12,433,930.86
May 21, 2007 40,771.04 12,393,159.82
Jun 19, 2007 48,863.40 12,344,296.42
Jul 19, 2007 46,565.64 12,297,730.78
Aug 20, 2007 41,687.52 12,256,043.26
Sep 19, 2007 47,122.37 12,208,920.89
Oct 19, 2007 47,419.64 12,161,501.25
Nov 19, 2007 45,161.48 12,116,339.77
Dec 19, 2007 48,003.67 12,068,336.10
Jan 22, 2008 38,155.68 12,030,180.42
Feb 19, 2008 53,606.55 11,976,573.87
Mar 19, 2008 51,403.77 11,925,170.10
Apr 21, 2008 41,686.84 11,883,483.26
May 19, 2008 54,470.27 11,829,012.99
Jun 19, 2008 47,328.84 11,781,684.15
Jul 21, 2008 45,159.94 11,736,524.21
Aug 19, 2008 52,867.60 11,683,656.61
Sep 19, 2008 48,276.37 11,635,380.24
Oct 20, 2008 48,591.06 11,586,789.18
Nov 19, 2008 51,344.25 11,535,444.93
Dec 19, 2008 51,668.15 11,483,776.78
Jan 20, 2009 47,164.52 11,436,612.26
2
Feb 19, 2009 52,291.62 11,384,320.64
Mar 19, 2009 57,409.23 11,326,911.41
Apr 20, 2009 48,220.05 11,278,691.36
May 19, 2009 55,659.49 11,223,031.87
Jun 19, 2009 51,279.00 11,171,752.87
Jul 20, 2009 51,613.27 11,120,139.60
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Aug 19, 2009 54,288.03 11,065,851.57
Sep 21, 2009 47,649.79 11,018,201.78
Oct 19, 2009 59,564.86 10,958,636.92
Nov 19, 2009 53,002.49 10,905,634.43
Dec 21, 2009 51,054.78 10,854,579.65
Jan 19, 2010 58,245.75 10,796,333.90
Feb 19, 2010 54,060.48 10,742,273.42
Mar 19, 2010 61,189.46 10,681,083.96
Apr 19, 2010 54,811.75 10,626,272.21
May 19, 2010 57,403.51 10,568,868.70
Jun 21, 2010 51,098.44 10,517,770.26
Jul 19, 2010 62,511.29 10,455,258.97
Aug 19, 2010 56,283.81 10,398,975.16
Sep 20, 2010 54,464.03 10,344,511.13
Oct 19, 2010 61,356.18 10,283,154.95
Nov 19, 2010 57,405.69 10,225,749.26
Dec 20, 2010 57,779.90 10,167,969.36
Jan 19, 2011 60,294.64 10,107,674.72
Feb 22, 2011 52,173.32 10,055,501.40
Mar 21, 2011 67,347.47 9,988,153.93
Apr 19, 2011 63,529.26 9,924,624.67
May 19, 2011 61,829.74 9,862,794.93
3
Jun 20, 2011 58,071.93 9,804,723.00
Jul 19, 2011 64,647.83 9,740,075.17
Aug 19, 2011 60,945.82 9,679,129.35
Sep 19, 2011 61,343.10 9,617,786.25
Oct 19, 2011 63,765.38 9,554,020.87
Nov 21, 2011 58,140.64 9,495,880.23
Dec 19, 2011 68,527.95 9,427,352.28
Jan 19, 2012 62,984.34 9,364,367.94
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Feb 21, 2012 59,456.67 9,304,911.27
Mar 19, 2012 71,608.95 9,233,302.32
Apr 19, 2012 64,249.27 9,169,053.05
May 21, 2012 62,740.04 9,106,313.01
Jun 19, 2012 68,906.78 9,037,406.23
Jul 19, 2012 67,426.61 8,969,979.62
Aug 20, 2012 64,079.58 8,905,900.04
Sep 19, 2012 68,256.19 8,837,643.85
Oct 19, 2012 68,686.78 8,768,957.07
Nov 19, 2012 67,276.16 8,701,680.91
Dec 19, 2012 69,544.48 8,632,136.43
Jan 22, 2013 62,722.60 8,569,413.83
Feb 19, 2013 73,982.78 8,495,431.05
Mar 19, 2013 74,418.37 8,421,012.68
Apr 19, 2013 69,544.27 8,351,468.41
May 20, 2013 69,997.61 8,281,470.80
Jun 19, 2013 72,195.30 8,209,275.50
Jul 19, 2013 72,650.73 8,136,624.77
Aug 19, 2013 71,398.09 8,065,226.68
Sep 19, 2013 71,863.50 7,993,363.18
4
Oct 21, 2013 70,651.13 7,922,712.05
Nov 19, 2013 76,124.44 7,846,587.61
Dec 19, 2013 74,938.69 7,771,648.92
Jan 21, 2014 70,508.81 7,701,140.11
Feb 19, 2014 77,475.60 7,623,664.51
Mar 19, 2014 79,551.14 7,544,113.37
Apr 21, 2014 72,087.72 7,472,025.65
May 19, 2014 80,443.95 7,391,581.70
Jun 19, 2014 76,254.73 7,315,326.97
Jul 21, 2014 75,213.56 7,240,113.41
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Aug 19, 2014 80,286.97 7,159,826.44
Sep 19, 2014 77,765.46 7,082,060.98
Oct 20, 2014 78,272.38 7,003,788.60
Nov 19, 2014 80,255.35 6,923,533.25
Dec 19, 2014 80,761.62 6,842,771.63
Jan 20, 2015 78,393.33 6,764,378.30
Feb 19, 2015 81,765.63 6,682,612.67
Mar 19, 2015 85,091.84 6,597,520.83
Apr 20, 2015 80,043.60 6,517,477.23
May 19, 2015 84,693.64 6,432,783.59
Jun 19, 2015 82,504.77 6,350,278.82
Jul 20, 2015 83,042.58 6,267,236.24
Aug 19, 2015 84,901.76 6,182,334.48
Sep 21, 2015 81,537.33 6,100,797.15
Oct 19, 2015 88,517.44 6,012,279.71
Nov 19, 2015 85,245.87 5,927,033.84
Dec 21, 2015 84,555.23 5,842,478.61
Jan 19, 2016 88,809.82 5,753,668.79
5
Feb 19, 2016 86,931.65 5,666,737.14
Mar 21, 2016 87,498.32 5,579,238.82
Apr 19, 2016 90,415.07 5,488,823.75
May 19, 2016 89,812.25 5,399,011.50
Jun 20, 2016 88,108.23 5,310,903.27
Jul 19, 2016 92,051.40 5,218,851.87
Aug 19, 2016 90,417.91 5,128,433.96
Sep 19, 2016 91,007.31 5,037,426.65
Oct 19, 2016 92,659.81 4,944,766.84
Nov 21, 2016 90,125.02 4,854,641.82
Dec 19, 2016 95,854.53 4,758,787.29
Jan 19, 2017 93,416.90 4,665,370.39
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Feb 21, 2017 92,063.80 4,573,306.59
Mar 20, 2017 98,472.63 4,474,833.96
Apr 19, 2017 96,208.84 4,378,625.12
May 19, 2017 96,815.75 4,281,809.37
Jun 19, 2017 96,526.13 4,185,283.24
Jul 19, 2017 98,035.42 4,087,247.82
Aug 21, 2017 96,075.49 3,991,172.33
Sep 19, 2017 100,099.19 3,891,073.14
Oct 19, 2017 99,891.39 3,791,181.75
Nov 20, 2017 98,927.14 3,692,254.61
Dec 19, 2017 101,922.01 3,590,332.60
Jan 19, 2018 101,033.60 3,489,299.00
Feb 20, 2018 100,958.47 3,388,340.53
Mar 19, 2018 105,200.28 3,283,140.25
Apr 19, 2018 103,036.07 3,180,104.18
May 21, 2018 103,039.01 3,077,065.17
6
Jun 19, 2018 105,673.47 2,971,391.70
Jul 19, 2018 105,693.05 2,865,698.65
Aug 20, 2018 105,154.61 2,760,544.04
Sep 19, 2018 107,023.15 2,653,520.89
Oct 19, 2018 107,698.29 2,545,822.60
Nov 19, 2018 107,842.35 2,437,980.25
Dec 19, 2018 109,057.99 2,328,922.26
Jan 22, 2019 107,787.08 2,221,135.18
Feb 19, 2019 111,360.03 2,109,775.15
Mar 19, 2019 112,015.69 1,997,759.46
Apr 19, 2019 111,414.96 1,886,344.50
May 20, 2019 112,141.23 1,774,203.27
Jun 19, 2019 113,245.31 1,660,957.96
Jul 19, 2019 113,959.70 1,546,998.26
441529
Remaining Principal
Outstanding
(following scheduled principal
Payment Due Date Principal Payment Due payment)
---------------- --------------------- -------------------------------
Aug 19, 2019 114,353.30 1,432,644.96
Sep 19, 2019 115,098.72 1,317,546.24
Oct 21, 2019 115,571.96 1,201,974.28
Nov 19, 2019 117,107.87 1,084,866.41
Dec 19, 2019 117,593.88 967,272.53
Jan 21, 2020 117,725.51 849,547.02
Feb 19, 2020 119,257.00 730,290.02
Mar 19, 2020 119,984.23 610,305.79
Apr 20, 2020 120,330.90 489,974.89
May 19, 2020 121,449.69 368,525.20
Jun 19, 2020 122,035.31 246,489.89
Jul 20, 2020 122,830.81 123,659.08
Aug 19, 2020 123,659.08 0.00
7
SCHEDULE 2.1
CONDITIONS TO ADVANCE OF ACQUISITION LOAN
The Advance of the Acquisition Loan shall be subject to Lender's
receipt, review, approval and/or confirmation of the following, at Borrowers'
cost and expense, each in form and content satisfactory to Lender in its sole
discretion:
1. The Loan Documents, executed by Borrowers and, as applicable, each
Borrower Party.
2. The commitment fee of $99,562.50 in cash.
3. An ALTA leasehold mortgagee policy of title insurance in the maximum
amount of the Loan, with reinsurance and endorsements as Lender may require,
containing no exceptions to title (printed or otherwise) which are unacceptable
to Lender, and insuring that the Mortgage is a first-priority Lien on the
Mortgaged Property and related collateral.
4. All documents evidencing the formation, organization, valid
existence, good standing, and due authorization of and for each Borrower and
each Borrower Party for the execution, delivery, and performance of the Loan
Documents by each Borrower and each Borrower Party.
5. Legal opinions issued by counsel for each Borrower and each Borrower
Party, opining as to the due organization, valid existence and good standing of
each Borrower and each Borrower Party, and the due authorization, execution,
delivery, enforceability and validity of the Loan Documents with respect to,
each Borrower and each Borrower Party; that the Loan, as reflected in the Loan
Documents, is not usurious; to the extent that Lender is not otherwise
satisfied, that the Mortgaged Property and its use and the anticipated use of
the Project are in full compliance with all legal requirements; and as to such
other matters as Lender and Lender's counsel reasonably may specify.
6. Current Uniform Commercial Code searches for each Borrower and each
Borrower Party.
7. Evidence of insurance as required by this Agreement, and conforming
in all respects to the requirements of Lender.
8. A current "as-built" survey of the Mortgaged Property, dated or
updated to a date not earlier than thirty (30) days prior to the date hereof,
certified to Lender and such title insurer, prepared by a licensed surveyor
acceptable to Lender and the issuer of the title insurance, and conforming to
Lender's current standard survey requirements.
9. A current Site Assessment.
1
10. A current rent roll of the Mortgaged Property, certified by
Borrowers and true and correct copies of all leases of the Mortgaged Property.
11 . A copy of the City Lease, the Rawbar Sublease, the Restaurant
Sublease, the State Lease, the State Waivers and the management agreement for
the Mortgaged Property, each certified by Borrowers as being true, correct and
complete, together with estoppel letters from the City, the State and the
manager under the management agreement.
12. Evidence that the Mortgaged Property, the operation thereof and the
anticipated use and operation of the Project comply with all legal requirements,
including without limitation that all requisite certificates of occupancy,
building permits, environmental permits and other licenses, certificates,
approvals or consents required of any governmental authority have been issued
without variance or condition and that there is no litigation, action, citation,
injunctive proceedings, or like matter pending or threatened with respect to the
validity of such matters.
13. Current financial statements and tax returns of each Borrower and
each Borrower Party. No adverse change shall have occurred in the financial
condition of any Borrower or any Borrower Party.
14. No condemnation or adverse zoning or usage change proceeding shall
have occurred or shall have been threatened against the Mortgaged Property; the
Mortgaged Property shall not have suffered any significant damage by fire or
other casualty which has not been repaired; no law, regulation, ordinance,
moratorium, injunctive proceeding, restriction, litigation, action, citation or
similar proceeding or matter shall have been enacted, adopted, or threatened by
any governmental authority, which would have, in Lender's judgment, a material
adverse effect on any Borrower, any Borrower Party or the Mortgaged Property.
15. All fees and commissions payable to real estate brokers, mortgage
brokers, or any other brokers or agents in connection with the Loan or the
acquisition of the Mortgaged Property have been paid, such evidence to be
accompanied by any waivers or indemnifications deemed necessary by Lender. S
16. Payment of Lender's costs and expenses in underwriting,
documenting, and closing the transaction, including fees and expenses of
Lender's inspecting engineers, consultants, and outside counsel.
17. Estoppel certificates and subordination, non-disturbance and
attornment agreements from tenants, as requested by Lender.
18. Such other documents or items as Lender or its counsel reasonably
may require.
19. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct.
20. No Potential Default or Event of Default shall have occurred or
exist.
21. Evidence that Borrowers have invested not less than $3,450,000 in
the acquisition of the Mortgaged Property.
2
SCHEDULE 2.2
CONDITIONS TO CONSTRUCTION LOAN ADVANCES
PART A: GENERAL CONDITIONS FOR EACH ADVANCE
Each Advance of the Construction Loan shall be subject to the following
conditions:
1 . There shall exist no Potential Default or Event of Default
(currently and after giving effect to the requested Advance).
2. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct.
3. Borrowers shall have paid Lender's costs and expenses in connection
with such withdrawal (including title charges, and costs and expenses of
Lender's inspecting engineer and attorneys).
4. There shall have been no change which could have a Material Adverse
Effect on the condition, financial or otherwise, of any Borrower or any Borrower
Party from such condition as it existed on the date of the most recent financial
statements of such Person delivered to Lender from time to time.
5 . Lender shall (i) have timely received all financial information
from all Guarantors as required under the Loan Documents, and (ii) not have
received notice from any Guarantor or any surety terminating or repudiating such
Person's Guaranty.
6. No condemnation or adverse, as determined by Lender, zoning or usage
change proceeding shall have occurred or shall have been threatened against the
Mortgaged Property; the Mortgaged Property shall not have suffered any damage by
fire or other casualty which has not been repaired or is not being restored in
accordance with this Agreement; no law, regulation, ordinance, moratorium,
injunctive proceeding, restriction, litigation, action, citation or similar
proceeding or matter shall have been enacted, adopted, or threatened by any
governmental authority, which would have, in Lender's judgment, a material
adverse effect on the Mortgaged Property or any Borrower's or any Borrower
Party's ability to perform its obligations under the Loan Documents.
PART B: CONDITIONS TO THE INITIAL ADVANCE OF THE CONSTRUCTION LOAN
Lender's obligation hereunder to make the initial Advance of the
Construction Loan is conditioned upon Lender's receipt of the following, each in
form and substance satisfactory to Lender:
1 . Evidence of the satisfaction of all conditions set forth on
Schedule 2.1.
1
2. A notice of commencement signed by Borrowers shall have been
recorded in the Public Records of Miami- Dade County, Florida, and a certified
copy thereof shall have been posted at the Mortgaged Property in compliance with
the Construction Lien Law. An executed copy of the Bonds shall be attached to
and recorded with the notice of commencement.
3. A guaranteed maximum fixed price contract ("Construction Contract")
with a general contractor acceptable to Lender in Lender's sole discretion (the
`General Contractor") with respect to the Project, together with (i) an
assignment of the Construction Contract in favor of Lender as additional
security for the Loan and (ii) an agreement from the General Contractor in favor
of Lender under which the General Contractor (a) acknowledges Borrowers'
assignment of the Construction Contract to Lender; (b) agrees that if Lender
succeeds to Borrowers' rights as to the Mortgaged Property, the General
Contractor will complete the Project for Lender pursuant to the Construction
Contract; and (c) containing such other agreements as Lender considers
appropriate. The Construction Contract must include a guarantee of completion.
4. The Bonds as required in Section 8.30.
5. A contract ("Architect's Contract") with an Architect (the
"Architect") with respect to the Project, together with (i) an assignment of the
Architect's Contract in favor of Lender as additional security for the Loan and
(ii) an agreement from the Architect in favor of Lender under which the
Architect (a) acknowledges Borrowers' assignment of the Architect's Contract to
Lender; (b) acknowledges Borrowers' assignment of the Plans and Specifications
to Lender; (c) agreeing that, if Lender so requires, Lender may use the Plans
and Specifications to complete the Project; (d) certifying that the Plans and
Specifications comply with all applicable laws and other governmental
requirements; and (e) containing such other agreements and certifications as
Lender considers appropriate.
6. An agreement from the Project engineer in favor of Lender consenting
that, if Lender so requires, Lender may use the Plans and Specifications to
complete the Project.
7. Executed copies of all other Construction Documents.
8. Final Plans and Specifications approved by the City and all other
applicable governmental authorities, and accepted by the General Contractor.
9. Detailed trade breakdown of the Project construction costs.
10. A plan and cost review, at Borrowers' expense, pursuant to which
Lender's Inspector shall review and advise Lender with respect to the Plans and
Specifications, the adequacy of the Budget and other matters related to the
design, construction, operation and use of the Project.
11 . Copies of all applicable approvals and permits of governmental
agencies for the construction of the Project, including without limitation the
building permit, all of which shall have been issued without variance or
condition, and there shall be no litigation, action, citation, injunctive
proceedings, or like matter pending or threatened with respect to the validity
of such approvals and permits.
2
12. Evidence that Borrowers have invested the required portion of the
Equity Requirement in tie Project.
PART C: CONDITIONS TO SUBSEQUENT ADVANCES OF THE CONSTRUCTION LOAN.
, Lender's obligations hereunder to make any subsequent Advances of the
Construction Loan are conditioned upon Lender's receipt of the following, each
in form and substance satisfactory to Lender:
1. A timely Advance Request, together with all required supporting
documentation.
2. Evidence that Borrowers have invested the required portion of the
Equity Requirement in the Project.
3. An endorsement to the loan policy of title insurance delivered to
and accepted by Lender continuing the effective date of such policy through the
date of the Advance and insuring that there has been no change in the status of
the title to the Mortgaged Property, and increasing the amount of such policy by
the amount of the Advance being made in connection therewith.
4. A satisfactory inspection report from Lender's Inspector.
5. Such other documents, instruments, information, agreements and
certificates as Lender or the Title Insurer may reasonably require.
PART D: CONDITIONS TO FINAL ADVANCE OF THE CONSTRUCTION LOAN.
Lender's obligation hereunder to make the final Advance of the
Construction Loan is conditioned upon Lender's receipt of the following, each in
form and substance satisfactory to Lender:
1 . Each of the items set forth in Part C of this Schedule 2.2, except
as otherwise provided in this Part D.
2. A final endorsement to the loan policy of title insurance delivered
to and accepted by Lender continuing the effective date of such policy so as to
insure the Loan as fully disbursed and removing any "pending disbursement"
clause, any survey exceptions and any other exceptions to title arising out of
the construction of the Project.
3 . Evidence of the satisfaction of the Completion Conditions set forth
in Section 8.23.
3
1
SCHEDULE 6.15
OWNERSHIP INTERESTS
1. The Christoph Family Trust 50%
2. HMG Bayshore, LLC, a Delaware limited liability company 50%
1
SCHEDULE 8.7
TRANSACTIONS WITH AFFILIATES
NONE
1
