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Resolution 94-21030 1 W • RESOLUTION NO. .94-.21030 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ` APPROVING A COLLATERAL ASSIGNMENT OF MARINA RESTAURANT PARTNERS LIMITED'S, INTEREST IN A LEASE AGREEMENT FOR THE PREMISES KNOWN AS "NICK'S FISH MARKET", DATED AUGUST 28, 1992, TO JEFFERSON BANK OF FLORIDA, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE ASSIGNMENT. - WHEREAS, Marina Restaurant Partners, Ltd. , a Hawaiian Limited Partnership (Assignor) , is the Lessee under a Lease Agreement dated August 28, 1992 (the Lease Agreement) , with Tallahassee Building Corp. (Lessor) , for the premises known as "Nick's Fish Market"; and WHEREAS, Jefferson Bank of Florida , a Florida Banking Corporation (Assignee) , has negotiated and agreed to extend a loan to Assignor in the amount of $250, 0.00, and as more specifically referenced in the attached Exhibit "A" ; and WHEREAS, to secure payment of the aforestated loan, Assignor has agreed to sell, assign and transfer over to Assignee all its rights, title and interest as Lessee under the Lease Agreement; and WHEREAS, Article 18 of the Lease Agreement provides that the Agreement may not be assigned in whole or in part by Assignor without the prior written consent of the Lessor; and WHEREAS, Tallahassee Building Corp. , is a Lessee under a Lease Agreement dated June 24, 1983, with the City for the purpose of leasing land for the construction and' development of the Miami Beach Marina (the Marina Lease) and has agreed to the Assignment. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein approve the attached Collateral Assignment of Marina Restaurant Partners Limited's interest in a Lease Agreement for the premises known as "Nick's Fish Market", dated August 28, 1992, to Jefferson Bank of Florida, and authorizing the Mayor and City Clerk to execute. the Assignment. PASSED and ADOPTED this 19th •ay of January , 1994. MAYOR ATTEST: ®RM APPROVED • CITY CLERK , LEGAL CREPT. BY Date c:\wp51U d\nicks.res - 0 1 ' 2 I ' OFFICE OF THE CITY ATTORNEY I . 624 ty:/"Arame weed F L 0 R I D A d��Pr1 `gf��y',, WIC \ *t • LAURENCE FEINGOLD :,,J�h P.O.BOX O CITY ATTORNEY 1���A MIAMI BEACH,FLORIDA 33119-2032 . TELEPHONE(305)673-7470 TELECOPY (305)673-7002 COMMISSION MEMORANDUM JANUARY 19, 1994 TO: MAYOR SEYMOUR GELBER MEMBERS OF THE CITY C ISSION FROM: LAURENCE FEINe • • CITY ATTORNEY • ROGER M. CARL410/62/4 . CITY MANAGER SUBJECT: CITY CONSENT TO COLLATERAL ASSIGNMENT BY "NICK'S FISH MARKET" TO JEFFERSON BANK OF FLORIDA The newest restaurant producing significant revenue to the City of Miami Beach and materially aiding in redevelopment in the Marina Complex known as "Nick's Fish Market" required a line of credit in conjunction with its opening day to day operations. Jefferson Bank of Florida consented to give this line of credit in the present amount of $250,000 to "Nick's Fish Market. " Jefferson Bank sought the lease as collateral for its loan which is normal in today's market. Nick's offered, and Jefferson Bank of Florida accepted, an assignment of the lease which has been consented to-by Tallahassee Building Corp. , a subsidiary of Walter Heller. Nick's . has further requested that the City consent to the assignment in the format attached hereto. The concerns of the City Manager were that in a remote event of any default of the note, that the City of Miami Beach have the right of election solely at its option to purchase Jefferson Bank's position. This will allow the rapid location of a new operator if ever necessary rather than protracted legal proceedings. Jefferson Bank of Florida, through its President, Barton S. Goldberg, agreed to afford this right of election to the City of Miami Beach. This is a joint recommendation of the City Manager and the City Attorney that the City Commission authorize the Mayor and City Clerk to execute the attached proposed assignment. LF:jm Attachment • e:\wp51\data\Jeffnatl.com 4 AGENDA ITEM R�— G DATE j _ ( 99(f 1700 CONVENTION CENTER DRIVE— FOURTH FLOOR—MIAMI BEACH, FLORIDA 33139 COLLATERAL ASSIGNMENT OF LESSEE'S INTEREST IN LEASE AGREEMENT THIS Collateral Assignment of Lessee's Interest in Lease Agreement, hereinafter referred to as "Assignment" , made and entered into this 27th day of December, 1993, by and between: Marina Restaurant Partners, Ltd. a Hawaii limited partnership hereinafter referred to as "Assignor" ; - and - JEFFERSON BANK OF FLORIDA, a Florida banking corporation, hereinafter referred to as "Assignee" ; WITNESSET H: A. Assignee has agreed to extend a loan to Assignor in the amount of $250, 000 . 00 . The loan shall be evidenced by a promissory note of even date herewith, in the original amount of $250, 000 . 00, executed by Assignee in favor of Assignor (the "Note") . B. Assignor, entered into a lease dated August 28, 1992, (the "Lease Agreement") , wherein Tallahassee Building Corp. , ("Landlord") is Lessor and Assignor is Lessee which is recorded in Official Records Book , Page of the Public Records of Dade County, Florida, for the premises described on Exhibit "A" attached hereto and made a part hereof (the "Leased Premises") . C. Assignor agrees to execute this Assignment assigning its interest in, to and under that certain Lease Agreement more particularly described above to further secure the above-mentioned Note. D. The Lease Agreement, and more particularly Article 18 thereof, provides among other things that the Lease Agreement may not be assigned in whole or in part by Assignor without the prior written consent of Landlord. Landlord will, therefore, need to execute this Assignment for the purpose of evidencing its written consent to said Assignment . NOW, THEREFORE, the parties hereto agree as follows : 1. The foregoing recitations are true and are incorporated herein as if set forth in detail . 2 . To secure payment of the Note and all renewal, modifications and extensions thereof and all of Assignor' s other obligations to Assignee as set forth in this Assignment, Assignor does hereby sell, assign, transfer, and set over to Assignee, its successors and assigns, all of its right, title and interest as Lessee in and under the Lease Agreement, together with all amendments, extensions, and renewals of the Lease Agreement, as well as all of its right, title and interest in and to all present and future security deposits under the Lease Agreement, to have and to hold the same unto Assignor, its successors and assigns, for and during the remainder of the term mentioned in the Lease Agreement, , and in any amendments, renewals' and extensions thereof. 3 . Assignor does hereby represent and warrant as follows : (a) That it is the Lessee under said Lease Agreement; (b) , That the Lease Agreement is current and in good standing and will be so maintained; • (c) That it is not in default and will not default in any terms, covenant, or provisions of the Lease Agreement; (d) That it will not terminate, amend or modify the Lease Agreement without written consent of Assignee having first been obtained; (e) That it will not execute any other assignments of its interest in the Lease Agreement; (f) That it will not sublease the leased property; and (g) That it will timely abide by each and every covenant of the Lease Agreement including payment of rent and other charges . required to be paid thereunder. 4 . Assignor does hereby agree that Assignee, at the option of Assignee to cure a default under the Lease Agreement, may pay rent due on the Lease Agreement, pay for insurance required to be maintained by the Lease Agreement, and other obligations Assignor is required to perform under the Lease Agreement . Assignor agrees to reimburse the Assignee on demand for any payment made or expense incurred by Assignee pursuant to the foregoing authorization, together with interest on such sums advanced from the date of such an advance to the date of repayment at the highest rate of interest permitted by law, and all sums so advanced together with interest shall be secured by this Assignment and all other collateral security for Assignor' s obligations to Assignee. Nothing herein shall obligate Assignee to make such payment on behalf of Assignor and Assignee' s failure to make any such payment shall not relieve Assignee of its understanding hereunder and its obligations for payment of the Note. 5 . Assignor does hereby agree that if any one or more of the following events (hereinafter called "Events of Default" ) shall occur for any reason whatsoever which is not cured within the applicable grace period, and whether such occurrence shall be voluntary, involuntary, or come about or be effected by operation of law, or pursuant to or in compliance with any judgment, decree or order of Court, or any order, rule or regulation of any administrative or governmental body: (a) A default shall occur in payments required by the Note; (b) An event of default, as defined in the Note or any other agreement, shall occur in Assignor' s due observance or performance of any covenant, agreement or other provision of the Note, or any other agreement, which shall not have been cured within any applicable grace period; (c) A default shall occur in the due observance or performance of any monetary covenant, agreement or other provision of the Lease Agreement which shall give the Lessor thereunder the right to terminate the Lease Agreement; and (d) If Assignor' s interest in the Leased Premises or the Lease Agreement and improvements thereof shall be levied upon or sold under execution or other legal proceeding. (e) There shall be any material adverse change in the financial condition of Assignor; (f) Assignor shall (i) apply for • or consent to the appointment of a receiver, trustee in bankruptcy, or liquidator or it or of any of its property; (ii) admit in writing its inability to pay its debts as they mature or generally fail to pay its debts as they mature; (iii) make a general assignment for the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file a voluntary petition in bankruptcy, or a petition of any answer seeking to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or , r statute or an answer admitting an act of bankruptcy alleged in a petition filed against it in any proceeding under any such law; or (vi) take any corporate action for the purpose of effecting any of the foregoing; (g) an order, judgment, or decree shall be entered against Assignor without its application, approval, or consent of Assignor by any court of competent jurisdiction, approving a petition seeking the reorganization or appointing a receiver, trustee, or liquidator of Assignor or appointing a receiver, trustee or liquidator of all or a substantial part of the assets of Assignor and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) days from the date of entry thereof; (h) final judgments, for the payment of money in excess of $50, 000 . 00 in the aggregate, shall be rendered against Assignor and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, provided that a judgment shall be deemed "final" only when the time for appeal shall have expired without an appeal having been claimed, or all appeals and further review claimed have been determined adversely to it; (i) any monies, deposits, or other property of Assignor now or hereafter on deposit with, or in the possession or under control of Assignee shall be attached or become subject to garnishment or distraint proceedings or any order or process of court, which are not released in ten (10) days; (j ) any permits or licenses required for the conduct of Assignor' s business are suspended or revoked and not reinstated within thirty (30) days, and which suspension or revocation would, in the opinion of Assignor have a material adverse effect on its business . 6 . If one or more of the foregoing Events of Default shall occur for any reason whatsoever then in such event : (a) The Assignee may, upon written notice to Assignor, declare all payments to be made under the Note, whether then due, to be forthwith due and payable, whereupon the same shall become due and payable both as to principal and interest without presentment, demand or protest, all of which are hereby expressly waived, anything contained herein or in the Note to the contrary notwithstanding, and Assignee may exercise any and all of its right or remedy now or hereafter existing at law or in equity or by statute, and Assignee may enforce such rights and remedies simultaneously or in such order and at such time as it shall determine in its sole discretion. (b) Assignor constitutes and appoints Assignee its true and lawful and irrevocable attorney-in-fact coupled with an interest with power of substitution to, upon occurrence of an Event in Default which is not cured within the applicable grace period, take possession of and sell the assigned Lease Agreement at public or private sale for cash or credit, and on such sale or sales, to transfer and assign to a purchaser full title thereto, free from any right of redemption; and in its own name, shall apply for and obtain a valid and , proper assignment of the assigned Lease Agreement to Assignee, its nominee or such purchaser; or Assignee may institute and prosecute appropriate action to foreclose Assignee' s lien on the Lease Agreement . After deducting all costs and expenses and fees incurred by Assignee in such sale, the net proceeds thereof shall be applied to the payment of the indebtedness . (c) Assignor constitutes and appoints Assignee in Assignor' s place and stead, as Assignor' s irrevocable, true, and lawful attorney-in-fact, coupled with an interest with power of substitution, to operate and exercise rights under the Lease Agreement and enforce these powers and rights in the same manner r . and to the same extent as Assignor theretofore might do, including the right to effect alteration, modification, amendment, and/or renewal of the Lease Agreement; (d) Assignor shall immediately, at the request of Assignee , execute all such other documents that may be requested or required in order to obtain valid and proper assignments of or otherwise to insure the orderly transfer of rights under the Lease Agreement, to Assignee, its nominee or such purchaser (s) ; (e) Assignor may institute • and prosecute appropriate action to foreclose Assignee' s liens on the Lease Agreement . After deduction of all costs, expenses, and fees incurred by Assignee in any sale resulting from such foreclosure, the net proceeds thereof shall be applied first to the payment in full of the secured obligation. 7 . All notices, requests, demands, and other communications provided for hereunder shall be in writing and mailed by registered or certified mail, or telegraphed or delivered to the applicable party at the address indicated below: • IF TO ASSIGNOR: Marina Restaurant Partners, Ltd. c/o Nick' s Fish Market 1 First National Plaza Chicago, Illinois 60602 Attention: Nicholas S. Nickolas IF TO ASSIGNEE: JEFFERSON BANK OF FLORIDA 301-41st Street Miami Beach, Florida 33140 Attention: Loan Department 8 . This Assignment is made and executed in favor of Assignee as additional collateral security for the full and faithful performance of all the covenants and provisions contained in the Note. When all obligations of Assignor to Assignee have been fully satisfied, the Lease Agreement shall be reassigned to Assignor, its successors and assigns, without recourse; otherwise this Assignment shall remain in full force and effect . 9 . All covenants, agreements, representations, and warranties made herein shall continue in full force and effect so long as the Note and any other obligation secured by this Assignment is outstanding and unpaid and so long as Assignor may have any right to borrow under the Note. All covenants and agreements by or on behalf of the parties hereto which are contained or incorporated in this Assignment shall bind and inure to the benefit of the successors and assigns of all parties hereto. 10 . No modification or waiver of any provision of this Assignment nor consent to any departure by Assignor therefrom, shall in any event be effective unless the same shall be in writing and signed by Assignee and such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Assignor in any case shall thereby entitle it to any other or further notice or demand in the same, similar or their circumstances . 11 . This Assignment may be executed in two or more counterparts, each of which shall constitute an original but which, when taken together, shall constitute but one instrument . When counterparts have been executed by all of the parties hereto, this Assignment shall be effective as of the date hereof. 12 . Assignee, by acceptance of this Assignment, has not assumed or agreed to perform any of the obligations of Assignor to the Lessor of the Lease Agreement, except to the extent that Assignee acquires or succeeds to Assignor' s interest thereunder. 13 . This Assignment shall be governed and construed in accordance with the laws of the State of Florida. 14 . All of the terms and provisions of this Assignment shall be binding upon and shall inure 'to the benefit of the parties hereto, their respective representatives, successors, and assigns, except that Assignor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Assignee. 15 . If any litigation is instituted by either party with respect to this Assignment, the prevailing party shall be entitled to recover from the other party all costs expended and reasonable attorney' s fees incurred in the litigation. 16 . ASSIGNOR AND ASSIGNEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK ACCEPTING THIS SATISFACTION OF ITS LOAN REQUIREMENT AND FOR BOTH PARTIES ENTERING INTO THIS ASSIGNMENT. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Witnesses : ASSIGNOR: � ,C \C"•ON, MARINA RESTAURANT PARTNERS, LTD. , a Hawaii (Printme��A��\ e��,f4q:n) limited partnership By: Harman * Nicholas Restaurant Group, Inc. , f 04112 I eneral Partner (Print Name if LeT7 i ) (as to Assignor) By: 1/4.104 — Nicholas S . Nickolas, As its President ASSIGNEE: JEFFERSON BANK OF FLORIDA 1 • C ( int am j- Cr,c,csl^‘or%) By: i4e-1 'ident (Print Na �.Aradi d A ) 30 (as to Assignee) STATE OF FLORIDA ) COUNTY OF DADE ) The foregoing instrument was acknowledged before me this o 7 day of December, 1993 , by Nicholas S. Nickolas, as President of Harman * Nicholas Restaurant Group, Inc . , an Illinois corporation, General Partner of Marina Restaurant Partners, Ltd. , a Hawaii limited partnership, who is personally known to me [or who has produced 4(�Ze P as his identification] and he did/did not take an oath. My Commission Expires : C:7) Notary 1511 lic, OFEiCIAL NOTARY SEAL State O f PAMELA HARRISON Print Name: NOTARY PUBLIC STATE OF FLORIDA Commission No: h:\wp51\b\1\m rinraQWNi`a3.�3N CC232335 I MY COMMIS O EXP.SEPT 29,1996 STATE OF FLORIDA COUNTY OF DADE ) The foregoing instrument was acknowledged before me this 027 day of December, 1993 by c,g/ p O9 j/,'� as 10//r.e_ President of Jefferson Bank of Florida. Said officer is personally known to me or has produced -' as i tification and did or did not take an oath. My commission expires : e Notary Public Print Name OFFICIAL NOTARY SEAL PAMELA HARRISON NOTARY PUBLIC STATE OF FLORIDA CONSENT TO ASSIGNMENT COMMISSION NO.CC232335 MY COMMISSION EXP SEPT 29,I496 The undersigne , a ah ssee Building Corp. , a Delaware corporation whose address is 500 West Monroe Street, Suite 1500, Chicago, Illinois 60661 (the "Landlord" ) to induce the Assignee to extend the loan to Assignor evidenced by the Note and all renewals and extensions thereof agrees as follows : 1 . In the event there is a default by Assignor in performance of the terms and conditions of the Lease Agreement and notice of such default is provided to Assignee, Landlord shall provide a copy of such notice to the Assignee at : Jefferson Bank of Florida 301 41st Street Miami Beach, Florida 33140 Attn: Loan Department or other such place as Assignee may otherwise advise Landlord in writing. 2 . As long as all obligations of Assignor to Assignee have not been satisfied, the Landlord will not exercise any of its right to terminate the Lease Agreement due to a default, for such defaults that are susceptible of being cured by the Assignee by a payment of an amount due under the Lease Agreement, so long as Assignee, within (30) thirty days after notice, remedies Assignor' s default (s) with the payment of money. 3 . If a default under the Lease Agreement occurs and is declared by Landlord, other than a default which could be cured by the payment of money to Landlord, Landlord shall take no action to effect a termination of the Lease Agreement in default without first giving Assignee written notice thereof and sixty (60) days thereafter within which (a) to obtain possession of the property by appropriate judicial proceedings (including possession by a receiver) and (b) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Assignor' s interest under such Lease Agreement . Assignee shall comply during the period of such forbearance with the terms, conditions and covenants of the Lease Agreement in default as are reasonably susceptible of being complied with by Assignee. 4 . If Assignee shall acquire title to the Assignor' s interest in the Lease Agreement by exercising its rights under the Assignment, Assignee may thereafter assign such Lease Agreement subject to and in accordance with the terms and conditions of the Lease Agreement . 5 . If an event of bankruptcy or insolvency constituting an event of default under the Lease Agreement should occur and the Lease Agreement is rejected by Assignor or its receiver or trustee in bankruptcy, the Landlord does hereby agree that, upon the written request of Assignee and within thirty (30) days after the Assignor' s, receiver' s or trustee' s rejection of the Lease Agreement under the provisions of 11 U.S.C. Section 365 or other applicable law, Landlord shall enter into a new lease agreement of the Leased Premises with Assignee on the same terms and conditions as the present Lease Agreement and the effective date thereunder shall be as of the date the present Lease Agreement terminates . •. r F1 h i 3 , .• 6 . The Landlords consent is conditioned upon Assignee agreeing: (a) (i) to provide Landlord with written notice of Assignor' s default in payment of the Note or its obligations under the foregoing Assignment at least five (5) days prior to Assignor taking action to enforce its rights; and (ii) to accept payment from the Landlord to cure Assignor' s default provided it is made within thirty (30) days after the notice of default is given to Landlord; (b) that it shall not increase the amount of its loan to Assignor secured by this Assignment or modify the terms of payment of the Note without Landlord' s written consent, but nothing herein shall limit Assignees right to renew the loan on the same terms and conditions and make readvances to Assignor provided that the aggregate amount secured by this Assignment does not exceed the principal amount of the Note, accrued interest, any amounts advanced by Assignee to cure Assignors default under the Lease Agreement and Assignee' s reasonable legal fees and costs incurred in enforcing its rights against Assignor. TALLAHASSEE BUILDING CORP. JEFFERSON BANK OF FLO DA BY:4:;=d57 As its President As its Vice President STATE OF COUNTY OF The foregoing s ru e t was acknowledged before me this ,27 day of December, 1993 by /tp SO/1 as President of Tallahassee Building Corp. , a Delaware corporation. Said officer is personally known to me or has produced as identification and did or did not take an oath. My Commission Ex fires : /D-10'-'9 0, ry Public " OFFICIAL Saprtii_nt Name : lg2u�llS JANET M. DAGENAIS NOTARY PUBIC, STATE Or iLLII<1015 STATE OF FLORID MY CCMMISS ON EXPIRES ?LLtNOi 4 COUNTY OF, DADE ) The foregoing in rument wa cknowledged before me _this ' 7 day of December, 1993 by ( '4 0 X/. as President of Jefferson Bank of Florida. Said officer is personally known to me or has produced as identification and did or did not take an oath. My commission expires : Notary Public Print Name OFFICIAL NOTARY SEAL PAMELA HARRISON NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO CC232335 MY COMM[SSION EXP SEPT 29,1996 h:\wp51\bpc\loan\marina\colass.les { CONSENT TO ASSIGNMENT AND JOINDER The City of Miami Beach hereby consents to the foregoing Assignment, conditioned upon Jefferson Bank of Florida agreeing to provide the City of Miami Beach with notice of any default of the underlying note and affording the City of Miami Beach a 60 day period, from such notice, to purchase and be assigned all right, title and interest of Jefferson Bank of Florida, in the note and all collateral therewith, it being understood that this right of election on the part of City of Miami Beach to purchase Jefferson Bank of Florida's position is solely at the option of the City of Miami Beach. The undersigned Officer of Jefferson Bank hereby agrees to the above conditions of consent by the City of Miami Beach. JEFFERSON BANK OF FLORIDA, BY: A .- THE C :% • • MIAMI` BEAC, , F.-03$'0 _ r BY: � •YOR - ATTEST: CITY CLERK STATE OF COUNTY OF ) The Foregoing instru�me t wa acknowledged befoiq this day of January , 1994 by ..Je7 LSCffuL le of Jefferson Bank of lorida. 'ai fice is personally known to me or has produced /A5cN as identification and did or did not take an oath. My Commission Expires: NOMY ARY PUBLIC,STATEEXPIRES: OS:JunFLe 11,A.19 otary Pu 1 i , ��� COMMISSION EXPIBL C UNDERWRITERS. W ITE5. Print Name: 1 f BONDED THRU NOTARY PUBLIC UNDERWRITEft3, STATE OF COUNTY OF ) The Foregoing instrument was acknowledged before me this S' day of January , 1994 by �-1D11 �. �L$�DZ as Mayor of the City of M' mi Bach. Said officer is personally known to me or has produced ig.R04L t\iJQc4/v' a identification nd did or did not take an oath. My Commission Expires: NOTARY PUBLIC,STATE OF FLORIDA:,. r otary Public MY COMMISSION EXPIRES:June 11,19956 Print Name: tta-!1...0 e / 3 BONDED THRU NOTARY PUBLIC UNDERWRITERS.. FORM APP'7,1LD c:\wp51\data\leffnatl.bnk LE U T. Date / l 3/ip, • I. EXHIBIT "A" MARINA All that part of the North 132 . 0 ' of Section 10 , Township 54 South, Range 42 East, described as: Beginning at a point on the northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or . place of beginning: thence southerly continuing the easterly • boundary of Jefferson Avenue extended for a distance of 132 . 0 ' to a point; thence westerly 201. 1 ' more or less along a line parallel to and 132 . 0 ' southerly from the northern line of said Section 10 to Biscayne Bay; thence northwesterly meandering the Bay to the intersection of the northern line of Section 10 ; thence easterly along the northern line of Section 10, 285. 0 ' more or less to the point or place of beginning; (the northerly boundary of said Section 10 being common with the southerly boundary of Biscayne Street) , Also described as: all of that part of the North 132. 0 ' of Section 10 Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract, more particularly described as follows, to wit: Bounded on the north by the northern lien of said Section 10; bounded on the east by the east line of Jefferson Avenue extended; • bounded on the south by a line parallel to and distance • 132 . 0 ' south of the northern line of said Section 10, and bounded on the west by Biscayne Bay. This instrument was prepared by: SEE• 6229��' Jeffer„scn .Banc of Florida REC. Lipsitz, Esq. �`q� 301 41st Street -Miami Beach, Florida 33140 COLLATERAL ASSIGNMENT OF LESSEE' S G A-/-j ('9\o INTEREST IN LEASE AGREEMENT 9 4-R 0 4-3111 1994 JAN 31 14:16 THIS Collateral Assignment of Lessee' s Interest in Lease Agreement, hereinafter referred to as "Assignment" , made and entered into this 27th day of December, 1993 , by and between: Marina Restaurant Partners, Ltd. a Hawaii limited partnership V hereinafter referred to as ;"Assi nor" c�T 41 `D g Y cCERrc VEr. 16229Pc4791 REC. (c) That it is not in, default and will not default in any terms, covenant, or provisions of the Lease Agreement;• (d) That it will not terminate, ' amend or modify the Lease Agreement without written consent of Assignee having first been obtained; (e) That it •will not execute any other assignments of its interest in the Lease Agreement; . (f) That it will not sublease the leased property; and (g) That it will timely abide by each and every covenant of the Lease Agreement including payment of rent and other charges required to be paid thereunder. / 4 . Assignor does hereby, agree that Assignee, at the option I of Assignee to cure a default under the Lease Agreement, may pay rent due on the Lease Agreement, pay for insurance required to be maintained by the Lease Agreement, and other obligations Assignor is required to perform under the Lease Agreement . Assignor agrees to reimburse the Assignee on demand for any payment made or expense incurred by Assignee pursuant to the foregoing authorization, together with interest on such sums advanced from the date of such an advance to the date of repayment at the highest rate of interest permitted by law, and all sums so advanced together with interest shall 'be secured by this Assignment and all other collateral security for Assignor' s obligations to Assignee. Nothing herein shall obligate Assignee to make such payment on behalf of Assignor and Assignee' s failure to make any such payment shall not relieve Assignee of its understanding hereunder and its obligations for payment of the Note. 5 . Assignor does hereby agree that if any one or more of the following events (hereinafter called "Events of Default" ) shall occur for , any reason whatsoever which is not cured within the applicable grace period, and whether such occurrence shall be voluntary, involuntary, or come about or be effected by operation of law, or pursuant to or in compliance with any judgment, decree or order of Court, or any order, rule or regulation of any administrative or governmental body: (a) A default shall occur in payments required 'by the Note; (b) An event ofVdefault, as defined in the Note or any other agreement, shall occur in Assignor' s due observance or performance of any covenant, agreement or other provision of the Note, or any other agreement, which shall not 'have been cured within any applicable grace 'period; (c) A default- shall occur in the due observance or performance of any monetary covenant, agreement or other provision of the Lease Agreement which shall give the Lessor thereunder the right to terminate the Lease Agreement; and (d) If Assignor' s interest in the Leased Premises or the Lease Agreement and improvements thereof shall be levied upon or sold under execution or other legal proceeding. (e) There shall be any material adverse change in the financial condition of Assignor; (f) Assignor shall (i) apply for or consent to the appointment of a receiver, trustee in bankruptcy, or liquidator or ' it or of any of i.ts property; (ii) admit in writing its inability to pay its debts as they mature or generally fail to pay its debts as they mature'; . (iii) make a general assignment for the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file a voluntary petition in bankruptcy, or a petition of any answer seeking to take advantage of any , bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or , . 2 • OFF.. 16?_29 Pc 4792 REC . statute or 'an answer admitting an act of bankruptcy alleged in a petition filed against it in any proceeding under any such law; or (vi) take any corporate action, for the purpose of effecting any of the foregoing; (g) an order, judgment, or decree shall be entered against Assignor without its application, approval, or consent of Assignor by any- court of competent jurisdiction, approving a ' petition seeking - the reorganization or appointing a receiver, trustee, or liquidator of Assignor or appointing a receiver, trustee or liquidator of all or a substantial' part of the assets of Assignor and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) days from the date of entry thereof; (h) final judgments, for the payment of money in excess \ / of $50, 000 . 00 in the aggregate, shall be rendered against Assignor 1 and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, provided that a judgment shall be deemed "final" only when the time for appeal shall have expired without an appeal having been claimed, or all appeals and further review claimed 'have been determined adversely to it; (i) any monies, deposits, or other property of Assignor now or hereafter on deposit with, or in the possession or under control of Assignee shall be attached or become subject to garnishment or distraint proceedings or any order or process of court, which are not released in ten (10) days; (j ) any permits or licenses required for the conduct of Assignor' s business are suspended or revoked and not reinstated within thirty (30) days, and which suspension or revocation would, in the opinion of Assignor have a material adverse effect on its business . 6 . If one or more of the foregoing Events of Default shall occur for any reason whatsoever then in such event : (a) The Assignee may, upon written notice to Assignor, declare all payments to be made under the Note, whether then due, to be forthwith due and payable, whereupon the same shall become due and payable both as to principal and interest without presentment, demand or protest, all of which are hereby expressly waived, anything contained herein or in the Note to the contrary notwithstanding, and Assignee may exercise any and all of its right or remedy now or hereafter existing at law or in equity or by statute, and Assignee may enforce such rights and remedies simultaneously or in such order and at such time as it shall determine in its sole discretion. (b) Assignor constitutes and appoints Assignee its true and lawful and irrevocable attorney-in-fact coupled with an interest with power of substitution to, upon occurrence of an Event in Default which is not cured within the applicable grace period, take possession of and sell the assigned Lease Agreement at public or private sale for cash or credit, and on such sale or sales; to transfer and assign to a purchaser full title thereto, free from any right of redemption; and in its own name, shall apply for and obtain a valid and proper assignment of the assigned Lease Agreement to Assignee, its nominee or such purchaser; or Assignee • may institute and prosecute appropriate action to foreclose Assignee' s lien on the Lease Agreement . After deducting all costs and expenses and fees incurred by Assignee in such sale, the net proceeds thereof shall be applied to the payment of the indebtedness . (c) Assignor constitutes and appoints Assignee in Assignor' s place and stead, as Assignor' s irrevocable, true, and lawful attorney-in-fact, coupled with an interest with power of substitution, to operate and exercise rights under the Lease Agreement and enforce these powers and rights in 'the same manner 3 • • OFF. 16229N 4793 and to the same extent as Assignor theretofore might do, including the right to effect alteration, modification, ' amendment, and/or renewal of the Lease Agreement; (d) Assignor shall immediately, at the request of Assignee , execute all such other documents that may be requested or required in order to obtain valid and proper assignments of or otherwise to insure the orderly transfer of rights under the Lease Agreement, to Assignee, its nominee or such purchaser (s) ; (e) Assignor may institute and' prosecute appropriate action to foreclose Assignee' s liens on the Lease Agreement . After deduction of all costs, expenses, and fees incurred by Assignee in any sale resulting from such foreclosure, the net proceeds thereof shall be applied first to the payment in full of the secured obligation. 7 . All notices, requests, demands, and other communications provided for hereunder shall be in writing and mailed by registered or certified mail, or telegraphed or delivered to the applicable party at the address indicated below: IF TO ASSIGNOR: Marina Restaurant Partners, Ltd. c/o Nick' s Fish Market 1 First National Plaza Chicago, Illinois 60602 Attention: Nicholas S. Nickolas IF TO ASSIGNEE: JEFFERSON BANK OF FLORIDA • 301-41st Street Miami Beach, Florida- 33140 Attention: Loan Department 8 . This Assignment is made and executed in favor of Assignee as additional collateral security for the full and faithful performance of all the covenants and provisions contained in the Note. When all obligations of Assignor to Assignee have been fully satisfied, the Lease Agreement shall be reassigned to Assignor, its successors and assigns, without recourse; otherwise this Assignment ' shall remain in full force and effect . 9 . All covenants, agreements, representations, and warranties made herein shall continue in full force and effect so- long as the Note and any other obligation secured by this Assignment is outstanding and unpaid' and so long as Assignor may have any right to borrow under the Note. All' covenants and agreements by or on behalf of the parties hereto which are contained or incorporated in this Assignment shall bind and inure to the benefit -of the successors and assigns of all parties hereto. 10 . No modification or waiver of any provision of this Assignment nor consent to any departure by Assignor therefrom, shall in any event be effective unless the same shall be in writing and signed by Assignee and such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Assignor in any case shall thereby entitle it to any other or further notice or demand in the same, similar or their circumstances . 11 . This Assignment may be executed in two or more counterparts, each of which shall constitute an original but which, when taken together, shall constitute but one instrument . When counterparts have been executed by all of the parties hereto, this Assignment shall be effective as of the date hereof . 12 . Assignee, by acceptance of this Assignment, has not assumed' or agreed to perform any of the obligations of Assignor to the Lessor of the Lease Agreement, except to the extent that Assignee acquires or succeeds to Assignor' s interest thereunder. 4 OFF. REC. 16229Prt.4794 • 13 . This Assignment shall be governed and construed in accordance with the laws of the State of Florida. 14 . All of the terms and provisions of this Assignment shall be binding upon and shall inure to the benefit of the parties hereto,, their respective representatives, successors, and assigns, except that Assignor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Assignee. 15 . If any litigation is instituted by either party with respect to this Assignment, the prevailing party shall be entitled. to recover from the other party all costs expended and reasonable attorney' s fees incurred in the litigation. 16 . ASSIGNOR AND ASSIGNEE HEREBY KNOWINGLY, VOLUNTARILY AND \ / INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY r JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK ACCEPTING THIS SATISFACTION OF ITS LOAN REQUIREMENT AND FOR BOTH PARTIES ENTERING INTO THIS ASSIGNMENT. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Witnesses : ASSIGNOR: -�„ �:_.�• {r_.1;. ,-,, MARINA RESTAURANT PARTNERS, LTD. , a Hawaii (Print-Name Yc -N, limited partnership •1 ` By: Harman * Nicholas Restaurant Group, Inc . , eneral Partner (Print N Ll w t �1/ ) "4)4 1(4-L--Cali-N. (as to As ignor) By: Nicholas S. Nickolas, As its President ASSIGNEE: JEFFERSON BANK OF FLORIDA (Pirint me ist. , ) By:e....„ /egy— , C(, _C . 4.c-et ice President Printfi% ) (as to Asignee) STATE OF FLORIDA COUNTY OF DADE The foregoing instrument was acknowledged before me this ;,a7 2 day of December, 1993, by Nicholas S. Nickolas, as President of Harman * Nicholas Restaurant Group, Inc. , an Illinois corporation,, General Partner of Marina Restaurant Partners, Ltd. , a Hawaii limited partnership, who is personally known to me [or who has produced , &v.,/a(' as his identification] and he did/did not' take an oath. My Commission Expires : ( -/1Jfl.( ffii.k' -- Notary Public, FF'—�.Y;573.^;U t,;;Y".i:.�7 1 State of ��P;;.,s•::t_A rir.i•:':;f• ^: Print Name: �NarAR' twit! -vrt• co:f1•�'t'IDAI Commission No: h:\wp51\b\ Vuttrit1;1140p..v3m sw ;qtr,.,; t 5 F. 16229n4795 • • STATE OF FLORIDA COUNTY OF DADE ) • _ The foregoing instrument wap oknowledged before ,me this � 2 7 day of • December, 1993 by :' /( /,'1.t,'( ,e)(2,1, as ,,tc,'c . President of ' Jefferson Bank of Florida. Said officer is personally known to me or has produced as identification and did or did not take an oath. My commission expires : Notary Public • OFFICIAL NOTARY SFAl. Print Name I'AMELA HARRISON NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO.ccz373:>s CONSENT TO ASSIGNMENT • MY CO;c4MISSION EXP.SEPT 29,1996 The/undersigned, Tallahassee Building' Corp. , a Delaware corporation whose addtress is 500 West Monroe Street, Suite 1500, Chicago, Illinois 60661 (the "Landlord") to induce the Assignee to extend the loan' to Assignor evidenced , by the Note and all renewals and extensions thereof agrees as follows : 1. . In the event there is a default by Assignor in performance of the terms and conditions of the Lease Agreement and notice of such default is provided to Assignee, Landlord shall provide a copy of such notice to the Assignee at : Jefferson Bank of Florida 301 41st Street • Miami Beach, Florida 33140 • Attn: Loan Department or other such place as Assignee may otherwise advise Landlord in writing. • 2 . As long as all obligations of Assignor to Assignee have not been satisfied, the Landlord will not exercise any of its right to terminate the Lease Agreement due to a default, for such defaults that are susceptible of being cured by the Assignee by a payment of an_ amount due under the Lease Agreement, so long as Assignee, within (30). thirty days after notice, remedies Assignor' s default (S) with the payment of money. 3 . If a default ' under the Lease ,Agreement occurs and is declared by Landlord, other than' a default which could be cured by the payment of money to Landlord, Landlord shall take no action to effect a terinination. of the Lease Agreement in default without. first giving Assignee written notice thereof and sixty (60) days thereafter within which (a) to' obtain possession of the property by appropriate judicial proceedings (including possession by a receiver) and (b) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Assignor' s interest under such Lease Agreement . Assignee shall comply during the period of such forbearance with the terms, conditions and covenants of the Lease Agreement in default as are reasonably susceptible of being complied with by Assignee . 4 . If Assignee shall acquire title to the Assignor' s interest in the Lease Agreement by 'exercising its rights under the Assignment, Assignee may thereafter assign such Lease Agreement subject to and in accordance with the terms and conditions of the Lease Agreement . • 5 . If an event of bankruptcy or insolvency constituting an event of default under the Lease ,Agreement should occur and the Lease Agreement is rejected by Assignor or its- receiver or trustee in bankruptcy, . the Landlord does hereby agree that, upon the written request of Assignee and within thirty (30) days after the Assignor' s, receiver' s or trustee' s rejection of the Lease Agreement under the provisions of 11 U.S.C. Section 365 or other applicable law, Landlord shall enter into a new lease agreement of the Leased Premises with Assignee on the same terms and conditions . as the present Lease Agreement and the effective' date thereunder shall be as of the date the present Lease ,Agreement terminates . 6 • OFFC.. 1 62Z9`e 4796 RE 6 . The Landlords consent is conditioned upon Assignee agreeing: (a) (i) to provide Landlord with written notice of Assignor' s default in payment of the Note or its obligations under the foregoing Assignment at least five (5) days prior to Assignor taking action to enforce its rights; 'and (ii) to accept payment from the Landlord to cure Assignor' s default provided it is made within thirty (30) days after the notice of default is given to Landlord; (b) that it shall not increase the amount of its loan to Assignor secured by this Assignment or modify the terms of payment of the Note without Landlord' s written consent, but. nothing herein shall limit Assignees right to renew the loan on the same terms and conditions and make readvances to Assignor provided that the ' aggregate amount secured by this . Assignment does not exceed the principal amount of the Note, accrued interest, any amounts advanced by Assignee to cure Assignors default under the Lease Agreement and Assignee' s reasonable legal fees and costs incurred in enforcing its rights against Assignor. TALLAHASSEE BUILDING CORP. JEFFERSON BAN OF FL IDA 5i2r r` \. As its President As its Vice President • STATE OF COUNTY OF ) The foregoing Ostrument was acknowledged before me this day of December, 1993 by ./i c bevl 150-.S ',V as President of Tallahassee Building Corp. , -a Delaware corporation. Said officer is personally known to me or has produced _ as identification and did or did not take an oath. ,(�]� �' ' ' My Commission. -Expires..:1G:.,�O `�y , ✓�tu��t-y Notary Public - ''Print Name : •Jiu(/17 :be�-�el1l-l/S STATE OF FLORIDA ) J • COUNTY OF DADE ) • • The foregoing instrument was cknowledged before me this - ? day of . December, 1993' by i.�,' "A.;'i•/e/19 f„-., as .2/i(;:P - President of Jefferson Bank of Florida. Said Officer is personally known to me or has produced as identification and did or did not take an oath. My commission expires : Notary Public Print Name �. !'�1l t�'.'.;{•f ICI-i:i!.i:. STAi I MY(_(.';:+,;,I:.;I:,t;RXi' :-;I]'i'J.'a,On, i • � -CONSENT—TO ASS-IGNMENT------- The undersigned as 'ty Manager of the City of i Beach, Florida, consents to the foregoing Assignment of Lease d`ertifies th rhi.s consent shall be binding on the City of Miami Beach, Florida without action by i y Council or other governmental department of the City of Miami Beach, Florida. THE CITY OF MIAMI B A , FLORIDA • By: • (SEAL) City Manager h:\wp51\bpc\loan\marina\colass.les 7 OFF. 16229iG4797 CONSENT TO ASSIGNMENT AND JOINDER . The City of Miami Beach hereby consents to the foregoing Assignment, conditioned upon Jefferson Bank of Florida agreeing to provide the City of Miami Beach with notice of any default of the underlying note and affording the City of Miami Beach a 60 day period, from such notice, to purchase and be assigned all right, title and interest of Jefferson Bank of Florida, in the note and all collateral therewith, it being understood that this right of election on the part of City of Miami Beach to purchase Jefferson Bank of Florida's position is solely at the option- of the City of Miami Beach. Th'e undersigned Officer of Jefferson Bank hereby agrees to the above conditions of consent by the City of Miami Beach. \ // 7 . JEFFERSON K OF FLORIDA, r I BY: 0,f/__ // .. • / F - V THEY OF MIAMI BEA ;1' 1D•' - . BY: MAYOR ATTEST: • f`tC1LL ' • F. -v Aw-- CITY CLERK" ' STATE OF ) COUNTY OF ) The Foregoing instrument w ,s acknowledged beforg�ne this . ' day of January , 1994 by ftLsc/7ULE�' as gr-e- en to,f. Jefferson Bank of lorida. ' aid o ficer is personally known to me or has produced A.„,,„, .., o as identification and' did--, er• did not take an oath. / <-� My Commission Expires: (J • Cj NOTARY PUBLIC,STATE OF FLORIDA. Notary bl,i �� MY COMMISSION EXPIRES:June 11, 1995. Print Name. ,1,/, /L4 r• /2/ • 'fie, BONDED THRU NOTARY PUBLIC UNDERWRITERS, ! STATE OF 0 ) - COUNTY OF ) The Foregoing instrument was acknowledged, before me this a5 day of January , 1994 bye hiook G 6..L.13£ (Z as Mayor of the City of Mimi Bach. Said officeris personally known to me or has � produced yQw 04 b3oc.j as identification and did or- did not take an oath. , My Commission Expires: I . ----Notary Pu li ��. NOTARY PUBLIC,STA ? une 11, :. ' Print Name: ENE f L f}_ 6 ,'3 2/f • t MY COMMISSION EXPIRES: June 11,1995. �.l 1. BONDED THRU NOTARY PUBLIC UNDERWRITERS. . • 0 j 1 ) .'' FORMA c:\wp51\data\jeffnatl.bnk ' _. ' •_J ' LE IL) T. Date 7 i3//k 8 • REC.eft. I b 91'1;4(yb • • EXHIBIT "A" ;SARIN\ All that part of the North 132 . 0 ' of Section 10 , Township 54 South, Range 42 East, described as: Beginning at a point on the northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or . place of beginning: thence southerly continuing the easterly • boundary of Jefferson Avenue extended for a distance of 132 . 0 ' to a point; thence westerly 201.1 ' more or less along a line parallel to and 132 . 0 ' southerly from the northern line of said Section 10 to Biscayne Bay; thence northwesterly meandering the Bay to the intersection of the northern line of Section, 10; thence easterly along the northern line of Section 10, 285. 0 ' more or less to the • point or place of beginning; (the northerly boundary of said Section 10 being ,common with the southerly boundary of Biscayne Street) , Also described as: all of that part of the North 132 . 0 ' of Section 10 Township 54 South, Range 42 East, known as Tract A or the Smith Company_Bay Front Tract, more particularly described as follows, to wit: Bounded on the north by the northern lien of said Section 10; bounded on - the .east by the east line of Jefferson Avenue extended; bounded on the south by a line parallel to and distance • 132 . 0 ' south of the northern line of said Section 10, and bounded on the west by Biscayne Bay. • • RECORDED IN OFFICIAL RECORDS 000R• OF DADE COUNTY,FLORIDA. RECORD YERIFiED H! VP? 11'�llfV, • Clerk of Circuit& County Courts • 9 • • 1 • •