Pelican Garage Certificate and Mortgage_ ~ ~~ r
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OFFICE OF THE CITY ATTORNEY, Jose Smith, City Attorney
Interoffice Memorandum
To: Bob Parcher ~ Date: June 10, 2010 .
City Clerk
From: Raul J. Aguila
Deputy City Attorn y .
Subject: Sale of Pelican. Garage - 1041 Collins Avenue
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Bob:
Enclosed .herewith is an original Certificate and Recognized Mortgage regarding the
`above-referenced matter.
CERTIFICATE
The undersigned, Sabadell United.Bank, N.A~., a national banking association (the
"Recognized Mortgagee") pursuant to that certain Agreement of Lease by and between
. the City of Miami Beach, Florida, as owner, and Pelican Development, L.L.C., a Florida
limited liability company, as tenant {the "Original Tenant), dated as of December 1,
1999, which Lease is for that certain project identified as "10~' Street Project" and which
Lease was recorded on January 7, 2000 in Official Records Book 18938, Page .2422,
which was assigned by Original Tenant to Ocean Blvd II, LLC, an Indiana limited
liability company (the "Successor Tenant"), as evidenced by that certain Assignment and
Assumption of Leasehold Estate dated, as of June 3, 2Q04 and recorded in Official
Records Book 22387, Page 3501, and which was assigned by Ocean Blvd II, a Delaware
limited liability company (successor in interest through merger with Successor Tenant) to
.Pelican Investment Holdings, LLC, a Florida limited liability company (the "Tenant"), as
evidenced by that certain Assignment and Assumption of Leasehold Estate, dated as of
even date herewith and recorded in Official Records Book,27,.30,~Page~~ all in the
Public Records of Miami-Dade County, Florida, hereby certifies and confirms to the City
of Miami Beach, Florida that attached hereto is a true and correct photostatic copy of the
Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing (the. "Mortgage") iii favor of the. undersigned, the- original. of which is being
recorded by Adams Gallinar, P.A., as Title Agent,. in the Public Records of Miami-Dade
County, Florida.
Please accept this certificate as confirmation that all notices to the lmdersigned
should be sent to the following address (or as such other address as may be provided to
you from time to time): ~ .
Sabadell United Bank, N.A.
Attn: Manager, Loan Operations
1111 Brickeli Avenue, 30th Floor
Miami, Florida 33131
SABADELL UNITED BANK, N.A.,
a national b in association
Roberto A. Pedroso, Vice President
Sworn to before me this
,~? day of May, 2010_
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Notary
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July 01 2010
No. DD 564359
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The undersigned Tenant hereby joins in this Certificate for purposes of further
confirming that the copy attached hereto is a true and correct copy of the Mortgage
executed by the undersigned in favor of the aforesaid Recognized Mortgagee.
PELICAN INVESTMENT HOLDINGS,
LLC, a Florida limited liability company
By: PSC Property Managers, LLC, a
Florida limited liability company, its
Manager
y.
Nadim Achi, Manager
Sworn to before me this
day of May, 2010 .
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.~ °~ Notary Publlc State of Florida
r° Jefhey Rodriguez . .
p~ My Commission DD832933
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This instrument prepared by:
Javier A. Granda, Esquire
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Boulevard, Suite 2500
Miami,. Florida 33131-5340
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LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
. AGREEMENT AND. FIXTURE FILING
' THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage"), is executed and
delivered as of May ~ , 2010, by PELICAN INVESTMENT HOLDINGS, LLC, a Florida
limited liability company, whose address is c/o Fort One Real Estate Investment Company, LLC,.
176 NE 43rd Street, Miami,.Florida 33137 ("Mortgagor"), to SABADELL UNITED BANK,
N.A., a national banking association,. having an office at 1111 Brickell Avenue, 30th Floor;
' Miami, Florida 33131, Attn: Loan Administration ("Mortgagee"), which terms Mortgagor and
Mortgagee, shall include all natural and artificial persons described as Mortgagor and
o Mortgagee, and shall be deemed to extend to, bind and benefit their respective heirs, executors,.
administrators, successors, legal representatives and assigns.
RECITALS:
1. Mortgagee has made a Ioari to Mortgagor in the original principal amount of
$5,500,000.00 (the ,"Loan"), evidenced by, among other things, (i) that certain Promissory Note
~in the original principal amount of $5,500,000.00 (the "Note"), executed by Mortgagor in favor
of Mortgagee, and (ii) that certain Loan Agreement, executed by Mortgagor and Mortgagee (the
"Loan Agreement"); both. dated as of the date of this Mortgage.
.NOTE TO RECORDER: This Mortgage secures the Promissory Note described above in the original principal
amount of $5,500,000, executed by Pelican Investment Holdings, LLC (the "Pelican Note"). Documentary stamp
taxes and intangible, taxes on the full principal amount of the Pelican Note are•being paid in connection with the
recording. of this Mortgage.. This Mortgage also secures the Guaranty described above. The Guaranty secures the.
Promissory Note described above in the original principal amount of $4,500,000, executed by Strand Commercial
Properties, LLC (the "Strand Note"). Documentary stamp taxes and 'intangible taxes.on the full rind al.~~,mount of
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the Strand Note are being paid in connection with the recordation of that certain Mortgage, Assignme Leases
and Rents, Security Agreement and Fixture Filing executed by Strand Commercial Properties, LLCa d
recorded in the Public Records of Miami-Dade County, Florida concurrently herewith. ~U~,~ ~ ~ ~%N
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MIAMI 2175413.5 7911033763
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2. Mortgagee has also made a loan to Strand Commercial Properties, LLC, a Florida limited
liability company ("Strand Commercial") in the original principal amount of $4,500,000.00
.(the "Strand Loan"), evidenced by, among other things, (i) that certain Promissory Note in the
.original principal amount of $4,500,000.00, executed by Strand Commercial in favor. of
Mortgagee, and (ii) that certain loan agreement, executed 6y Strand. Commercial and Mortgagee,
both dated as of the date of -this Mortgage. In connection with the Strand Loan,''Mortgagor has
executed and delivered to Mortgagee that certain Guaranty Agreement (the "Guaranty"), dated.
as of the date of this Mortgage, guaranteeing Strand Commercial's obligations with respect to the
Strand Loan:
3. Mortgagee has required, as a condition of making the Loan and the Strand Loan, that
.Mortgagor execute and deliver this Mortgage in order to secure Mortgagor's obligations- with
respect to the Loan and' the Strand Loan.
WITNESSETH: `~
For divers good and valuable- considerations; Mortgagor does grant, bargain, sell, alien, remise,
release, convey, assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and
confirm unto Mortgagee, its .successors and assigns forever the leasehold estate- created by the
G lease described on the attached Exhibit A (the "Lease"}, pursuant to which Lease, Mortgagor is
the lessee and' The City of Miami Beach, Florida (the "Owner") is the lessor, and all right, title
and interest now owned or hereafter acquired by Mortgagor in the Lease and any modifications,
extensions or renewals thereof, including (without limiting the generality of the foregoing) its
r"fight to renew the Lease for an additional term or terms and any option to purchase the property
encumbered by ,the Lease (collectively, the "Leasehold Estate"); which Lease demises the land
located in the County of Miami-Dade, State of Florida (the "Land"), described in said Exhibit A,
and all structures and improvements now and/or hereafter located on the Land, the rents, issues _
and'- profits thereof, all furniture, furnishings, fixtures and equipment now and/or hereafter
located' on the Land, and also all gas and electric fixtures; heaters, air conditioning equipment,
machinery, motors, bath tubs, sinks, water closets, water basins, pipes, faucets, and other
plumbing• and heating fixtures, refrigerator equipment, venetian blinds, which are now or may
hereafter pertain to or be used with, in or on the Land; and which, even though they are detached
or detachable, are and shall be deemed to be fixtures and accessions to the freehold and a part of
the realty, and all additions thereto and replacements thereof (which Leasehold Estate, rights,
improvements, fixtures, and personalty are collectively referred to as the "Property"); all present
or :future deposits, accounts, security deposits, contracts, contract rights, .instruments, permits,
. licenses, choses-in-action, insurance and condemnation proceeds and other general intangible.
.rights. of 'any nature whatsoever now or hereafter dealing with, affecting.. or concerning the
Property, any portion thereof or any interest therein, and now or hereafter existing, acquired or
held by Mortgagor, and derived, arising from or relating to any `operation, development,
ownership or management of the Property or businesses or concessions conducted on the
Property, including, without limitation: (i) any agreements for the provision of utilities to all or
:any portion of the Property, (ii) all deposits for the use of all or any portion of the Property,
(iii) all. revenue arising from, growing out of, or in connection -with the use and/or occupancy of
the Property, and all products and proceeds of the foregoing, (iv) all rights of Mortgagor in and
to-.any names used in connection with the operation of any. portion of the Property now or
MIAIv1I 2175413.5 7917033763 , 2
hereafter, or other similar names, (v) all of Mortgagor's right, title and interest in and to all
deposit accounts maintained with Mortgagee, or any affiliate of Mortgagee, (vi) all of
Mortgagor's rights in any. governmental approval,. consent, permit or any other governmental
action with respect to the Property, and (vii) all other items of personal property used or useful in
. connection with the operation of the Property, together- with all accessories, parts, equipment and
accessions. now attached to or used in connection therewith or which may hereafter at any time..
be placed in or added to'the Property, and also any and all replacements of any such property. If
and to the extent that Mortgagor shall hereafter acquire fee simple title and/or any other interests
in any or all of -the Property (in addition to the Leasehold Estate) such fee simple title and/or
other additional interests (collectively the "Additional Interests") shall automatically and
without further assignment, mortgage conveyance or other action of any party become subject to
. the lien of this Mortgage, to the same, extent as if expressly granted by Mortgagor under this
Mortgage, and there shall be no merger between the Leasehold Estate and any of the Additional
Interests. If the Lease is canceled or terminated; and if Mortgagor or its nominee shall acquire an
interest in any new lease of the Property, the new lease or the leasehold estate created by such
new lease shall automatically be encumbered by this Mortgage. The "Property" shall not include
furniture, furnishings,. fixtures or personal property owned by tenants under the Leases (as
.defined below); except to.the extent that Mortgagor has or acquires an interest therein.
TO` HAVE AND TO HOLD the same, together with the tenements, hereditaments and
appurtenances, unto Mortgagee.
And Mortgagor covenants with Mortgagee that: (i) Mortgagor is indefeasibly seized of
the Property; (ii) Mortgagor has full power and lawful right to convey the. Property as provided
for in this Mortgage; (iii) it shall be lawful for Mortgagee at all times peaceably and quietly to
enter upon, hold, occupy and enjoy the Property; (iv) the Property is free from all encumbrances
except for those, if any, specifically approved in writing by Mortgagee prior to the date of full
execution of this Mortgage; (v) Mortgagor, will make such further assurances to perfect the title.
to the Property in Mortgagee as may reasonably be required; (vi) Mortgagor does fully warrant
the title to the Property and will defend the same against the lawful claims of all persons
whomsoever; and (vii) the Lease is a valid and subsisting demise of the premises described
therein for the term therein set forth and there are no defaults thereunder by either the Owner or
by.Mortgagor. .
PROVIDED ALWAYS; that if all of the obligations "under the Note and the Guaranty
shall be satisfied and each .and' every stipulation, agreement, condition and covenant of the Note,
the Loan Agreement, this Mortgage, all other documents now or hereafter evidencing or securing
the obligations of the Loan, and the Guaranty (all such documents, as the same maybe extended,
increased or otherwise modified, restated or replaced, are collectively referred to as the "Loan
Documents"), shall be promptly performed, complied with and abided by, then this Mortgage
and the estate created shall cease and be null and void.
And Mortgagor does covenant and agree with Mortgagee as follows:
1. Payment.. All and .singular the principal- and interest and other sums of money .
. payable by virtue of the Note, the Loan Agreement, this Mortgage, the Guaranty or any of the
MIAMI 2175413.5 7911033763 3
other, Loan Documents, shall be paid promptly on the days, respectively, the same severally
become due.
2. Compliance with Terms of the Loan Documents. Each and every stipulation,
agreement; condition and .covenant set forth in the Loan .Documents -shall be performed,
complied with and abided by.
3. Payment of Taxes, Assessments and Encumbrances. Mortgagor shall pay all and
singular the taxes, assessments, levies, liabilities, obligations, and encumbrances of every nature
on the Land and the Property, whether prior or subordinate in lien, dignity and effect to the lien
of this Mortgage, each in accordance with its respective terms, conditions and requirements, and,.
if the same. are not paid promptly, Mortgagee may at any time, before or after delinquencies, pay
the same without ,waiving or affecting the option to foreclose or any other right under this
Mortgage, and every payment so made shall become part of the indebtedness secured by this
Mortgage and shall bear interest from the date of expenditure by Mortgagee at the Default Rate
(as such term is defined in the Note), until paid. All such funds, together with accrued .interest,
. shall be paid to Mortgagee on demand.
4. Maintenance of Insurance and Application of Proceeds.
(i) The interest of Mortgagor in the Property shall at all times be protected by
adequate fire and multiple perils insurance covering the buildings and improvements constituting
.apart of the Property through a company or companies acceptable to Mortgagee, and 'in an
amount equal to the full replacement cost of such buildings and improvements. Without
limitation of the foregoing,. Mortgagee shall receive original insurance policies or the original
ACCORD evidence thereof; as to the fire and extended coverage insurance (including windstorm
coverage), workmen's compensation insurance, liability insurance, business interruption
insurance and rent loss insurance for 1 year of interruption/loss, and, when applicable, flood
insurance on the. Property, in amounts, form and upon companies reasonably satisfactory to
Mortgagee, together with endorsements to the policies including but not limited to a Law and
. Ordinance endorsement naming Mortgagee as the first mortgagee:
(ii) Mortgagor shall also maintain a policy .of general commercial liability.
insurance, in amounts, in form, and upon a company satisfactory to Mortgagee..
(iii) All. such policies shall be issued by an insurer licensed to do business in
Miami-Dade County, Florida and whose claims paying ability is rated at least "A" by Standard
and Poor's or A/A -VIII by A.M. Best as published in Best's Key Rating Guide. Loss under
such insurance policies shall be payable first to Mortgagee to the extent of its interest. The
.original policy or policies with premiums paid shall be in the possession of Mortgagor as of the
date of .this Mortgage. The proceeds from any loss covered by insurance shall be, at the sole
option and discretion of Mortgagee applied to restoration of the Property or toward repayment of
the Loan, provided, however that to the extent the .Ground Lease requires that any portion of
such proceeds be applied to the restoration of the Property, then Lender shall agree to apply such
proceeds to the restoration of the Property. If Mortgagor shall fail to cause any required
insurance to be carried .and. paid for, Mortgagee may place and pay for such insurance or any part
thereof without waiving or affecting the option to foreclose or any other right under this
.MIAMI 2175413.5 7911033763 4
-Mortgage, and each and every such payment shall bear interest from the date of expenditure at
the Default Rate. '
5. Waste. Mortgagor shall permit, commit, or suffer no waste, impairment or
deterioration of the Property, except reasonable wear and tear, and in the event of failure of
Mortgagor to keep the buildings constituting a portion of the Property or improvements thereon
in good repair, then Mortgagee may after a reasonable period of time following written notice
from Mortgagee make such repairs as in its discretion it may deem necessary for the proper, .
preservation thereof, and the full amount of each and every such payment shall be due and
payable thirty days after demand and shall bear interest at the Default Rate, and shall be secured
by the lien of this Mortgage.. .
6. Remedies upon Default. Upon the occurrence of an Event of Default (as defined
in -the Loan Agreement) or if any of the sums of money referred to in the Guaranty are not
promptly and fully paid when the same severally become due and payable, then Mortgagee shall'
be entitled to exercise all rights and remedies, under the Loan Documents and available at law
and in equity, including without limitation the foreclosure of this Mortgage.
7. Foreclosure of Lien. If foreclosure proceedings shall be instituted with respect to
any mortgage encumbering the Property or any lien on the Property of any kind, Mortgagee may,
at its option, immediately or thereafter declare this Mortgage and the indebtedness secured
hereby due and payable.
8. Appointment of Receiver. Until the occurrence of an .Event of Default,
:Mortgagor shall be entitled to collect the rents, issues and profits from the Property, but upon the
occurrence of an Event of.Default or the filing of a bill to foreclose .this or any other mortgage
encumbering the Property;. Mortgagee shall immediately, and without notice and as a matter of
strict: right, be entitled to the appointment of a receiver of the Property and of the rents, issues,
profits, prepaid .rentals or security monies, deposits and revenues thereof, from .whatsoever
source derived,- with the usual powers and duties. of receivers in such cases, and such
appointment shall. be made by .such court. as a matter of strict right to Mortgagee and without
"reference to the adequacy or inadequacy of the value of the Property, or to the solvency or.
insolvency of Mortgagor, and such rents, profits, prepaid rentals or security monies; deposits,
income and revenue shall be applied by such receiver to the payment of the indebtedness, costs
and charges secured by this Mortgage, according to the order of such court, and such receiver
may be continued in possession of the Property. until the time of the sale thereof pursuant to a
foreclosure under this Mortgage and until the confirmation of such sale by the court. ,
- 9: Contest of Lien. If any action or proceeding shall be commenced by any person
other than the holder of this Mortgage, to which action or proceeding the holder of this Mortgage
is made a party, or in which. it shall become necessary to .defend or uphold the lien of this
Mortgage; all sums paid by the holder of this Mortgage for .the expense of any litigation,
including appellate proceedings, to prosecute, or defend the rights and liens created by this
Mortgage (including reasonable counsel fees), shall be paid by Mortgagor, together with interest
thereon at the Default Rate, and any such sum, and the interest thereon, shall be a claim upon the
.Property, attaching or accruing subsequent to the lien of this Mortgage, and shall be secured by
,this Mortgage and evidenced by the Note. In any action or proceedings to foreclose this
MIAMI 2175413.5 7911033763
Mortgage or to recover or collect the debt secured by this Mortgage, the provisions of law
respecting the recovery of costs, disbursements and allowances shall prevail, unaffected by this
covenant. '
10. Condemnation. In the event that the Property, or any portion of the Property,
shall be condemned and taken for public use under the power of eminent domain, Mortgagee
shall have the right to demand that all damages awarded for such taking be paid to Mortgagee, up
to the aggregate amount then unpaid on the Note and on this Mortgage, and shall be applied to
the payments last payable thereon. ~ .
11. Subrogation of Mortgagee. To the extent of the indebtedness of Mortgagor to
Mortgagee described in or secured by this Mortgage, Mortgagee is subrogated to the lien or liens
and to the rights of the owner and holders thereof of each and every mortgage, lien or other
encumbrance on the Property which is paid or satisfied, in whole or in part, out of the proceeds
of the Loan, and the respective liens of said mortgages; liens or other encumbrances shall be, and
the same and each of them is preserved and shall pass to and be held by Mortgagee as security
for the Loan Documents, to the same extent that they would have been preserved and would have
been-passed. to and been held by Mortgagee had they been duly and regularly assigned,
transferred, set over and delivered unto Mortgagee by separate deed of assignment,
notwithstanding the fact that the same may be satisfied and' canceled of record, it being the
intention of the parties to this Mortgage that the same will be satisfied and canceled of record by
the holders thereof at or about the time of the recording of this Mortgage.
12. Costs and Expenses of Enforcement. Mortgagor shall pay all and singular costs,.
charges and expenses, including counsel ,fees (whether or not suit is brought or appeal taken
' therefrom), reasonably incurred or paid at any .time by Mortgagee because of the failure on the
part of Mortgagor to perform, comply with and abide by each and every stipulation; agreement,.
condition and covenant of the Loan Documents, and every such payment shall bear interest from
date of expenditure at the Default Rate.
13. ,Extension of Time and/or Modification of Terms. No extension of time or
modification of the terms. of the Loan Documents, and' no release of any part or parts of the
Property shall, without the consent of Mortgagee, release, relieve,. or discharge Mortgagor from
the payment of any of the sums secured by this Mortgage, but in .such event Mortgagor shall
nevertheless be liable to pay such sums according to the terms of such extension or modifications
' unless specifically released and discharged iri writing by Mortgagee; further; acceptance of a
- partial payment of any installment of principal or interest, or both, or of partial performance of
any covenant or delay for any period of time in exercising the option to mature the entire debt,
shall not operate as a waiver of the right to exercise such option or act upon such default, partial
acceptance or any subsequent default.
14. Escrow for Real Estate Taxes and' Insurance. After the occurrence of an Event of
Default, Mortgagee, at its option, may at any time require that. Mortgagor pay to Mortgagee in
monthly payments, on the same dates that monthly payments .are due under the Note, until all
obligations under the Loan Documents are fully paid; the following sums in escrow: (a) an
amount equal to 1/12th .of the current year's real estate tax levy against the Land and the
Property (if not available, the amount of the prior year's real estate tax levy will be used); and (b)
MIAMI2175413.5 7911033763
an amount equal to 1112th of the insurance premiums for coverages required by Mortgagee.
Should a deficiency exist between the escrowed amounts so paid and the amounts due,
Mortgagor shall pay the deficiency amount to Mortgagee upon demand. Any deficiency in the
amount of any such aggregate monthly payment shall constitute a default under this Mortgage.
Provided Mortgagee has received sufficient escrowed funds as provided for in this Mortgage,.
Mortgagee ,may, and shall upon request of Mortgagor, make the real estate tax and insurance
premium payments from the escrowed funds. Notwithstanding the foregoing, Mortgagee shall at
all times have the right, to apply such escrow funds to the obligations secured by this Mortgage
in such order as Mortgagee deems appropriate.
15. Adjustments on Real Estate Taxes. If the total of the payments made in escrow
by. Mortgagor for real estate taxes. shall exceed the amount of the payments actually made by
Mortgagee for real estate: taxes, such excess shall be credited by Mortgagee ~ on~ subsequent
payments of the same nature to be made by Mortgagor. If, however, said monthly payments
made by Mortgagor, shall not be sufficient to .pay real estate taxes when the same shall become
due and payable, then Mortgagor shall pay to Mortgagee any amount necessary to make up the
deficiency,. on or before the date when payment of such real estate taxes shall be due. If at any
time Mortgagor shall tender to Mortgagee full payment of the entire indebtedness secured by this
Mortgage, Mortgagee shall credit to the account of Mortgagor any balance remaining in the
funds accumulated by Mortgagee for the payment of real estate taxes. Upon the occurrence of an
-Event of Default, Mortgagee shall be and is authorized and empowered to apply, the balance
then remaining in the funds accumulated-for real estate taxes and insurance as a credit against the
amount secured by this Mortgage. ,
16. Future Advances. It is the intent of this Mortgage to secure (i) the obligations of .
Mortgagor under the Note whether all of the amounts provided for in the Note shall have been
advanced to Mortgagor on the date of this Mortgage or on a later date; (ii) the obligations .of
Mortgagor under the Guaranty, as same constitute a guarantee of the performance by Strand
.Commercial under. the Strand Loan, whether all of the amounts provided for under the Strand
Loan shall have been advanced to Strand Commercial on the date of this Mortgage or at a -later
date; (iii) any. other amount that may be added to the mortgage obligations under the terms of this.
Mortgage; (iv) all. other indebtedness that may hereafter be due, owing; or existing from
Mortgagor or Strand Cormercial to Mortgagee during the existence of this Mortgage; and (v) all
future advances, as defined under Chapter 697 of the Florida Statutes, made under the Loan
and/or the Strand Loan, commencing with the date of this Mortgage and continuing through
twenty years after -the. date hereof, in all respects as though such advances had been made
simultaneously with the execution of this Mortgage ..and secured hereby; provided, however, that
. -all such further or future advances shall be wholly, optional with Mortgagee and further provided,..
' however, that no such advance or advances- shall cause the unpaid principal obligation secured
. by this Mortgage to exceed 200% of the original aggregate principal amounts of the Loan and the
Strand .Loan, ,except that there may be added to such amount interest thereon and any and all
disbursements made by Mortgagee for the payment of taxes, levies or insurance on the Land and
the .Property, with interest on such disbursements at the Default Rate, and for reasonable
attorneys' .fees and court costs incurred in the collection of any or all of such sums of money,
including all such .fees and costs in connection with appellate proceedings.
MIAMI 2175413.5 7911033763
17. Prior Mortgages: Mortgagor represents .and warrants to Mortgagee that no
mortgage which encumbers all or any of the Property is prior in time .and/or dignity. ("Prior
Mortgage") to this Mortgage. In the event this representation is not accurate, then in addition to
., the right of Mortgagee to exercise its other rights and remedies, Mortgagor authorizes Mortgagee
to expend funds and to take any other action which Mortgagee may deem necessary to satisfy in
_ whole or in part any Prior Mortgage; all' such funds and all such action taken shall be at
Mortgago`r's expense and any funds so expended shall become part of the indebtedness secured
by this Mortgage and shall bear interest from- the date of expenditure by Mortgagee at the Default
Rate until paid.. All such funds, together with accrued interest, shall be paid to Mortgagee on
demand.
18. Abandonment. If at any time during. the continuance of an Event of Default, the
Property shall be abandoned, vacated or left unattended, Mortgagee, if in its discretion such steps
are necessary for the protection of the Property, shall have the right, power and authority at its
option to enter upon the Property and to secure same by changing locks thereon, to paint and
repair such premises, and to place signs thereon notifying that it has taken possession of the
Property; and any such action by Mortgagee as described above shall not' be deemed to be a~
trespass or trespasses or unlawful detainer upon the Property. All sums paid or advanced by
Mortgagee in the protection of the Property as provided for in this Mortgage shall be charged
:.into the Mortgage account and become an integral part thereof, subjecf in all respects to the
. terms; conditions and covenants of the Loan Documents, as fully and to the same extent as
though a part of the original indebtedness secured by this Mortgage;. excepting, however, that
said sums. shall be repaid to Mortgagee upon its demand, together with interest on such sums at
the Default Rate.
19. Assignment of Leases and Property Income.. Mortgagor absolutely and
unconditionally assigns and transfers to Mortgagee, (i) all right, title and interest of Mortgagor
in and under all leases; lettings; tenancies and licenses of the Property or any part thereof now or
hereafter entered into and all amendments, extensions; renewals and guaranties thereof, all
_ security therefor, and all moneys payable thereunder (collectively, the "Leases") and (ii) all
. rents, income, accounts, receivables, issues, profits, security deposits and other benefits to which
Mortgagor may now or hereafter be entitled from the Property or in connection with the Leases
. or from the sale of any portion of the Property (collectively, the "Property Income"). Mortgagor
shall not otherwise assign, transfer or encumber in any manner the Leases or the Property
Income or any portion thereof. So long as no Event of Default has occurred, Mortgagor shall
have a license to collect and use the Property Income in accordance with the terms of the Loan
Documents, as the same becomes due and payable, revocable by Mortgagee, but may not collect
any Property .Income more than one (1) month in advance of the date the same becomes due.
The assignment in this Paragraph shall constitute an absolute and present assignment of the
Leases and the Property Income, and not an additional assignment for security, and the existence
or exercise of Mortgagor's revocable license to collect Property Income shall not operate to
subordinate this assignment to any subsequent assignment. The exercise by Mortgagee of any of
t$ rights or remedies under this Paragraph shall not be deemed or construed to make Mortgagee .
amortgagee-in-possession.
20. Assignment of Property in Mortgagee's Possession. As additional security for the
performance and payment of all of the obligations secured by this Mortgage, Mortgagor pledges,
MIAMI 2175413.5 7911033763 g
.transfers, assigns and delivers to Mortgagee any and all property of Mortgagor, of every kind and
description, now or hereafter in the possession, custody or control of or in transit to or from
Mortgagee, for safekeeping or otherwise (all remittances and property to be deemed in the
possession, custody or control of Mortgagee as soon as put in transit to it by mail or carrier); and
Mortgagee is .given a lien.for the amount of liability and indebtedness secured by this Mortgage,
:whether or not such liability and indebtedness are due and payable, upon, and a right of set-off
against, all property. of every kind, whether tangible or intangible, including. without limitation
any balances, credits, deposits; accounts; monies, collections, drafts, bills .and securities, now or
hereafter in the possession, custody or control of Mortgagee by or for the account of Mortgagor
or in which Mortgagor may have any interest; and Mortgagee is authorized and empowered at its.
option, without notice, to appropriate any and all of such property and apply any and all thereof
and the proceeds thereof to the payment and extinguishment of the liability and indebtedness
secured by this Mortgage at any time after such. liability and indebtedness become payable.
Mortgagee is further authorized and empowered at its option at any time after the liability and
indebtedness secured by this Mortgage become payable, to sell, assign and deliver any and all of
such property at any time in the possession, custody or control of Mortgagee for Mortgagor or in
which Mortgagor has any interest, at public or private sale, for cash, credit or for future delivery,
all at the option of Mortgagee, without further advertisement or notice of sale and without notice
to Mortgagor of intention to sell, which rights of Mortgagor are expressly waived. Upon any
sales at public auction or Broker's Board, Mortgagee may bid for and purchase the whole or any
part of the property sold free of any right of redemption, which right Mortgagor waives,
relinquishes and releases. In case of any sale by Mortgagee of any such property on credit or for
future delivery, such property may be retained by Mortgagee until the selling price is paid by the
purchaser ~. and Mortgagee shall incur no liability in ,case of failure of the purchaser to pay
therefor; incase of any such failure, any such property may be resold. For the purposes of this
-. Paragraph, any realty of Mortgagor encumbered by a mortgage in favor of Mortgagee here, now
or hereafter existing. (the "Existing Mortgage"), shall be deemed in the possession of Mortgagee,
and the lien of the Existing Mortgage shall, by the joinder of Mortgagor herein,. be made to
secure all of the obligations secured by this Mortgage.
21. Transfer; Assumption of Mort~a~e. It is a requirement under this Mortgage that
written approval from Mortgagee must be obtained prior to any .sale, gift, exchange, conveyance,
encumbrance or other Transfer, as defined in the Loan Agreement, as to any of the Property and
as to certain direct or indirect ownership interest in Mortgagor as provided for in the Loan
Agreement: In the event such prior written approval has not been obtained prior to any such
Transfer, the entire unpaid indebtedness .secured by this Mortgage shall be due and payable at the
time of any such Transfer. In the event Mortgagee should in its sole discretion agree to the
Transfer of any Property or ownership interest to, and/or the assumption of this Mortgage by, a
third party, Mortgagee shall have the right to require complete financial information from such
transferee, and the right to charge a customary fee. In the event the ownership of the Property or
any part thereof becomes vested in a person other than Mortgagor, Mortgagee may, without
notice to Mortgagor, deal with such successor or successors in interest with reference to this
Mortgage and the debt secured by this Mortgage in the same manner as with Mortgagor, and
may forbear to sue or may extend time for payment of the debt secured by this Mortgage,
witfiout discharging or in any way affecting the liability of Mortgagor or the debt secured by this
Mortgage.
:MIAMI 2175413.5 7911033763
22. Loan Agreement. Each of the. terms, covenants and conditions of the Loan
Agreement is incorporated in this Mortgage as if the Loan Agreement were set forth in this
Mortgage, in its entirety. In the event of any conflict between the terms of this Mortgage and the
Loan Agreement, the terms of the Loan Agreement shall govern.
23. Uniform Commercial Code Requirements. Mortgagor authorizes Mortgagee, for
so long as any obligations secured by this Mortgage shall be outstanding, unilaterally to file any
and all financing statements as necessary or proper to perfect Mortgagee's security interest in the
collateral for the obligations secured by this Mortgage, and unilaterally to add information to this
Mortgage, such. as Elie signature of Mortgagee and addresses of Mortgagor. and/or Mortgagee, so
as to comply with any requirements of the Florida Uniform Commercial Code necessary to
constitute this Mortgage as a security agreement and/or financing statement, and Mortgagee is
further authorized in its, sole discretion to file this Mortgage of record containing such additional
information. As to all collateral for the obligations secured by this Mortgage, Mortgagee shall
have all rights of a secured party under the Uniform Commercial Code of Florida as in effect
from time to time.
24. Intentionally Deleted.
25. Security Agreement. Mortgagor covenants, warrants, represents and agrees with
and to Mortgagee as follows:
(i) This Mortgage constitutes a security agreement under the Uniform
Commercial Code of the State of Florida (the "Code") and' serves as a fixture filing in
accordance with the Code. This Mortgage creates a security interest in favor of Mortgagee as
secured party under the, Code with respect to all property described in this Mortgage which is
covered by the Code. The mention of any portion of such property in a financing statement filed
in the records normally pertaining to personal property shall not derogate from or impair in any
manner the intention of Mortgagor and Mortgagee declared in this Mortgage that all items of
collateral described in this Mortgage are part of the real property encumbered by this Mortgage.
to the fullest extent permitted by law, regardless. of whether any such item is physically attached
to the improvements or whether serial numbers are used for the better identification of certain
items. Specifically, the mention in any such financing statement of (i) the rights in or the
proceeds of any policy of insurance, (ii) any condemnation proceeds, (iii) Mortgagor's interest in
any Leases or Property Income, or (iv) any other items of collateral described in this Mortgage,
shall not be construed to alter, impair or impugn any rights of Mortgagee as determined by this
Mortgage or the priority of Mortgagee's lien upon and security interest in such collateral. Any
such mention shall be for the protection of Mortgagee in the event that notice of Mortgagee's
priority of interest as to any portion of the Property is required to be filed in accordance with the
Code to be effective against or take priority over the interest of any particular class of persons,
.including the federal. government or any subdivision or instrumentality thereof
(ii) . Except for the security interest granted by this Mortgage, Mortgagor is
and, as to portions of the collateral described in this Mortgage to be acquired after the date of this
.Mortgage, will be the sole owner of all such collateral, free from any lien, security interest,
encumbrance or adverse claim thereon of any kind whatsoever. Mortgagor shall notify
MIAMI 2175413.5 7911033763 10
Mortgagee of, and shall defend the collateral described in this Mortgage against, all claims and
demands of all persons at any time claiming the same or any interest therein.
(iii) Except as otherwise provided for in the Loan Documents, Mortgagor shall
riot lease; sell, convey or in any manner transfer the collateral described in this Mortgage without
the prior written consent of Mortgagee. ~ .
(iv) The collateral described in .this Mortgage is not used or bought for
personal, family or household purposes.
(v) The collateral described in this Mortgage shall be kept on or at the
Property, and Mortgagor shall not remove or permit the removal thereof from the Property
without the prior consent of Mortgagee, except such portions or items of such collateral as .are
consumed or worn out in ordinary usage, all of which shall be promptly replaced by Mortgagor
with items of equal or greater value.
(vi) In the event of any change in name, identity or structure of Mortgagor,
Mortgagor shall notify Mortgagee and promptly after request shall execute, file and record such
Code forms as are necessary to maintain the priority of Mortgagee's lien upon and security
interest. in the collateral described in this Mortgage, and shall pay all expenses and fees in
.connection with the filing and recording thereof. If Mortgagee shall require the filing or
recording of additional Code forms or continuation statements, Mortgagee shall be entitled,
without the consent of Mortgagor, to execute, file and record such Code forms or continuation
statements as Mortgagee shall deem necessary on behalf of Mortgagor as provided for in this
Mortgage if permitted by applicable law, and Mortgagor shall pay all expenses and fees in
connection with the filing and recording thereof. If Mortgagee shall initially pay such expenses,
Mortgagor shall promptly reimburse Mortgagee for the expenses.
(vii) Mortgagor irrevocably appoints Mortgagee as its attorney-in-fact, coupled
with an interest, to execute in the name of and on behalf of Mortgagor any .and all financing
statements and continuations thereof and to file with the .appropriate public office on its behalf
and at its expense any financing or other statements signed only by Mortgagee, as secured. party;
in connection with the collateral covered by this Mortgage.
A CARBON, PHOTOGRAPHIC OR OTHER REPRODUCTION OF THIS
MORTGAGE OR ANY FINANCING STATEMENT RELATING TO THIS MORTGAGE
SHALL BE SUFFICIENT AS A FINANCING STATEMENT. .
26, Letters of Credit. Upon the request of Mortgagor, Mortgagee in its sole discretion
may from time to time.agree to issue one or more letters of credit for.the account of Mortgagor
(each is a "Letter of Credit") upon condition that Mortgagor shall execute an agreement in form
and content satisfactory to Mortgagee (an "Indemnity Agreement") to indemnify and reimburse
Mortgagee for all costs, expense and liability with respect to any such Letter of Credit. If the
:Indemnity Agreement, the Note or any other document executed by Mortgagor in favor of
:Mortgagee so provides: (i) the obligations of Mortgagor to Mortgagee under the Indemnity
Agreement shall constitute part of the obligations which are secured by the lien of this Mortgage;
MIAMI 2175413.5 7911033763 11
.and (ii) Mortgagee is authorized to disburse from the Note at any time and from time to -time any
amounts required to satisfy Mortgagor's obligations under such Indemnity Agreement.
27. No Additional Indebtedness. Mortgagor will not borrow any additional sums of
money, whether secured or unsecured, and will not incur any indebtedness, whether secured or
unsecured,. except for customary, necessary and usual trade payables incurred in connection with
the operation and maintenance of the Property.
28. No Other Financing. There are no security agreements or financing statements
affecting .any of the Property other than the security agreements and financing statements created
in favor of Mortgagee.
29. Separate and Cumulative Rights. Mortgagor agrees that all rights of Mortgagee
arising .under the provisions and covenants in this Mortgage shall be separate, distinct and'
cumulative and that none shall be in exclusion of the other; and that, further, no act of Mortgagee
shall be construed as an election to proceed under any one provision or covenant in this
Mortgage to the exclusion of any other, notwithstanding anything in this Mortgage to the
contrary.
30. Severability. It is further mutually agreed between Mortgagor and Mortgagee,
and made a specific part of this Mortgage, that, in .case any word, clause, term, phrase or
paragraph used in this Mortgage and/or the other Loan Documents should be held to be
unconstitutional or illegal by any court of competent jurisdiction, the same shall not affect, alter
or otherwise impair the meaning of any other word, clause, term, phrase or paragraph in this
Mortgage arid/or the other Loan Documents, and the same shall stand in full force and effect and
shall be obligatory upon the assignees,. heirs and legal representatives of both respective parties
to this Mortgage.
31. Gender. In this Mortgage and the other. Loan Documents, the singular shall
include the plural and the masculine shall include the feminine neuter.
32. Entire Agreement; Modifications. This Mortgage and the other Loan Documents
constitute. the entire agreement between Mortgagor and Mortgagee with respect to the Property
and the terms and provisions of this Mortgage may not be modified except by written instrument
signed by the party to be charged.
33. Time of the Essence. Time is of the .essence of this contract and no waiver of any
obligation under or secured by this Mortgage shall at any time thereafter be held to be a waiver
of the terms of this Mortgage. or of the other Loan Documents.
34. Purchase Money Mortgage. This Mortgage is a .purchase money mortgage which
secures funds being used by Mortgagor to pay for a portion of the purchase price of the Property.
35. .Ground Lease Provisions.
(i) The .lien of this Mortgage shall attach to all of Mortgagor's rights arid
remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11
MIA.MI2175413.5 7911033763 12
U.S.C. 365(h), including, without limitation, all of Mortgagor's rights to remain in possession'of
the Property.
(ii) Notwithstanding anything to the contrary, this Mortgage shall not
constitute an absolute assignment of the -Lease and Mortgagee shall have no .liability or
obligation thereunder by reason of its acceptance of this Mortgage.
(iii) Mortgagee (or its nominee) shall be liable for the obligations of the lessee
arising under the Lease only for that period of time which Mortgagee (or its nominee) is in
. ~ possession thereof or has. acquired; by foreclosure or otherwise, and is holding all of Mortgagor's
right, title and interest therein.
(iv) Mortgagee hereby acknowledges and agrees that this Mortgage is subject
and subordinate to the terms of the Lease and, except as expressly set forth therein, to the
Owner's interest in the Premises (as defined in the Lease); provided that Mortgagee shall be
entitled to all of the rights of a "Recognized Mortgagee" under the Lease.
(v) Mortgagee agrees that, in the event of any default by Mortgagor under the
Mortgage ancUor the other Loan Documents, Mortgagee shall accept performance by Owner,
provided such cure is made within any applicable grace periods available to Mortgagor under the
Mortgage and/or other Loan Documents, to cure defaults of any covenant, condition, or
agreement on Mortgagor's part to be performed under the Mortgage and/or other Loan
Documents with the same force and effect as though such cure were performed by Mortgagor.
(vi) Mortgagee agrees to provide Owner with copies of all default notices, or
other notices relating to the failure of Mortgagor to keep this Mortgage in good standing, sent by
Mortgagee to Mortgagor, simultaneously with Mortgagee's transmission of such notices to
Mortgagor.
(vii) Mortgagee shall comply with all reasonable requests of Owner with
respect to estoppel letters.
36. Venue/Jurisdiction. VENUE AND JURISDICTION SHALL BE IN MIAMI-
DADS COUNTY, FLORIDA, FOR ANY LEGAL PROCEEDING IN CONNECTION WITH
THIS MORTGAGE AND/OR IIV THE EVENT THAT MORTGAGEE SHALL BRING AN
ACTION TO FORECLOSE THIS MORTGAGE.
37. Waiver of Ju Trial. MORTGAGEE AND MORTGAGOR EACH WAIVE: (1)
ALL RIGHTS TO RELY ON OR ENFORCE ANY .ORAL STATEMENTS MADE PRIOR TO,
CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THE SIGNING OF THIS
MORTGAGE OR ANY OTHER LOAN DOCUMENT; AND (2) THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF
UNDER, OR IN CONNECTION WITH, THIS MORTGAGE OR ANY OTHER LOAN
DOCUMENT, OR WITH RESPECT TO DEALINGS BETWEEN MORTGAGOR AND
MORTGAGEE CONCERNING ANY COURSE OF CONDUCT, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION. IS A
`MATERIAL INDUCEMENT FOR MORTGAGEE TO PROVIDE CREDIT TO
MORTGAGOR.
MIAMI2175413.5 7911033763 13
IN WITNESS WHEREOF, this instrument has been executed by Mortgagor.
Witnesses:
MORTGAGOR:
PELICAN INVESTMENT HOLDINGS, .
LLC, a Florida limited liability company ~ .
^J,~~, By: PSC Property Managers, LLC, a Florida
=~L~--- limited liability compan~, its Manager
I~lac~im Achi, Manager
STATE OF FLORIDA }
} SS:
COUNTY OF MIAMI-DADS }
The foregoing instrument was acknowledged before me this ~ day of May, 2010, by
Nadim Achi, as Manager of PSC Property Managers; LLC, a Florida limited liability company,
the Manager of Pelican Investment Holdings, LLC; a Florida limited li~hility.EOmpany, on behalf
of the company. He is personally known to me oF, has produced.a' ,,,' driver's license as
identification. ~~-',"~ / i ~: --,
:~*'^i~., DIANE M. HERNANDEZ
~~ ' k= Commission DD 729822
F P Expires October 29, 2011
%'f„ of ~°. Bonded Ttxu Troy Fain Inaranoa 80639S7Ut9
Notary Public~State b` lorida at Lar'
Print Name of Notary` : i /~=`%e ~ ~y`1C~~7 ~
My Commission Expires: w ~ Vii/
(Seal)
MIAMI 2175413.5 7911033763 ~ 14
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EXHIBIT. "A"
Description of Lease:
Agreement of Lease recorded in Official Records Book 18938, Page 2422, as further assigned by
Pelican Development LLC, a Florida limited liability .company to Ocean Blvd II, LLC, by
..Assignment and Assumption of Leasehold Estate recorded in Official Records Book 22387, Page
3501, and as further assigned by Ocean Blvd II, LLC, to Pelican Investment Holdings, LLC, a
Florida limited liability company by Assignment and Assumption of Leasehold Estate recorded
n ?, 2010 in Official Records Book2~~; Page~123, all of the Public Records
o iami-Dade County, Florida.
Description of Land:
The North 1 foot of Lot 1 1, -and all of Lots 12, 13 and 14, Block 15, OCEAN BEACH
ADDITION NO. 2, according to -the Plat thereof, as recorded in Plat Book 2, at Page 56, of the
Public Records of Miami=bade County, Florida
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MIAMI 2175413.5 7911033763
15