Leasehold Mortgage, Assignment of Rents & Security Agreement Zoz4-1 - 3ZZ-7.51--
PREPARED BY,
RECORDING REQUESTED
BY,AND WHEN
RECORDED RETURN TO:
Steven E. Goldman, Esq.
Greenberg Traurig,P.A.
333 S.E. 2"d Avenue, Suite 4400
Miami,Florida 33131
LEASEHOLD MORTGAGE,ASSIGNMENT OF RENTS AND SECURITY AGREEMENT,
by
RK RIVANI LLC
as MORTGAGOR
TO
AMERANT BANK,N.A.,
as MORTGAGEE
As of April 10, 2024
ACTIVE 697188286v2
Prepared by and after
recording return to:
Steven E.Goldman, Esq.
Greenberg Traurig,P.A.
333 S.E. 2"d Avenue, Suite 4400
Miami,Florida 33131
LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
This LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT, dated April 10, 2024 (together with any amendments or modifications hereto in
effect from time to time,the"Mortgage"),is made by and between RK RIVANI LLC,a Florida
limited liability company(the"Mortgagor"),having an office at 1691 Michigan Avenue,Miami
Beach, Florida, 33140 and AMERANT BANK, N.A., having an office at 220 Alhambra Circle,
Coral Gables,Florida 33134("Mortgagee").
RECITALS:
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of Fifty-Two
Million Five Hundred Thousand and No/100 Dollars ($52,500,000.00) (the "Loan"), together
with interest thereon, as evidenced by a Promissory Note of even date herewith from Mortgagor
to Mortgagee in the original principal amount of Fifty-Two Million Five Hundred Thousand and
No/100 Dollars ($44,187,500.00) and a Promissory Note of even date herewith from Mortgagor
to Mortgagee in the original principal amount of Eight Million Three Hundred Twelve Thousand
Five Hundred and No/100 Dollars ($8,312,500.00) (together with any and all replacements and
modifications thereof, collectively, the "Note"). The Loan is governed by a Loan Agreement of
even date herewith executed by Mortgagor and Mortgagee(the"Loan Agreement");
WHEREAS,Mortgagor is the owner of the leasehold estate(the"Leasehold")under that
certain Agreement of Lease described in Schedule"A"attached hereto and made a part hereof(the
"Ground Lease"), which pertains to the lots, pieces, or parcels of land lying and being in said
County and State described in Schedule "A" attached hereto(the"Real Estate"); and
WHEREAS, to induce Mortgagee to make the Loan and to secure payment of the Note
and the other obligations described below, Mortgagor has agreed to execute and deliver this
Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all sums due under
this Mortgage, the Loan Agreement, the Note (and all extensions, renewals, replacements and
amendments thereof) and the other Loan Documents (as such term is defined in the Note, the
"Loan Documents"); (ii)the performance of all terms, conditions and covenants set forth in the
Loan Documents; (iii) the repayment of all sums due or that may become due under or in
connection with any present or future swap agreements (as defined in 11 U.S.C. §101) between
Mortgagor and Mortgagee, including without limitation Mortgagor's obligations to pay any
ACTIVE 697188286v2 2
applicable swap breakage fee;(iv)the repayment of all reimbursement obligations due or that may
become due under or in connection with any present or future letters of credit issued by Mortgagee
for the account of Mortgagor; and (v) all other obligations or indebtedness of Mortgagor to
Mortgagee of whatever kind or character and whenever borrowed or incurred, including without
limitation, principal, interest, fees, late charges and expenses, including attorneys' fees
(subsections (i), (ii), (iii), (iv) and(v) collectively, the "Liabilities"), Mortgagor has mortgaged,
granted and conveyed and by these presents DOES HEREBY MORTGAGE, GRANT AND
CONVEY TO MORTGAGEE,ITS SUCCESSORS AND ASSIGNS,all of Mortgagor's right,
title and interest now owned or hereafter acquired in and to each of the following(collectively,the
"Property"):
(A) The Leasehold;
(B) Any and all buildings and improvements now or hereafter erected on,under or over
the Real Estate(collectively, the "Improvements");
(C) All materials, supplies,goods, tools, furniture, fixtures,equipment, and machinery
which in all cases is affixed or attached,or to be affixed or attached, in any manner on the Land or
the Improvements;
(D) Any and all leases, subleases, tenancies, licenses, occupancy agreements or
agreements to lease (other than the Ground Lease) all or any portion of the Real Estate,
Improvements, Equipment(as defined in the Code(as defined below) or all or any other portion
of the Property and all extensions,renewals,amendments,modifications and replacements thereof,
and any options, rights of first refusal or guarantees relating thereto (collectively, the "Leases");
all rents, income, receipts, revenues, security deposits, escrow accounts, reserves, issues, profits,
awards and payments of any kind payable under the Leases or otherwise arising from Mortgagor's
right,title and interest in the Real Estate, Improvements, Equipment or all or any other portion of
the Property including, without limitation, minimum rents, additional rents, percentage rents,
parking, maintenance and deficiency rents (collectively, the "Rents"); all of the following
personal property (collectively referred to as the "Contracts"): all accounts, general intangibles
and contract rights (including any right to payment thereunder, whether or not earned by
performance) of any nature relating to Mortgagor's right, title and interest in the Real Estate,
Improvements, Equipment or all or any other portion of the Property or the use, occupancy,
maintenance, construction, repair or operation thereof; all management agreements, franchise
agreements, utility agreements and deposits, building service contracts, maintenance contracts,
construction contracts and architect's agreements; all maps,plans, surveys and specifications; all
warranties and guaranties;all permits, licenses and approvals;and all insurance policies,books of
account and other documents,of whatever kind or character,relating to the use,construction upon,
occupancy, leasing, sale or operation of the Real Estate, Improvements, Equipment or all or any
other portion of the Property;
(E) (i) Any and all estates, rights, tenements, hereditaments, privileges, easements,
reversions, remainders and appurtenances of any kind benefiting or appurtenant to the Leasehold,
Improvements or all or any other portion of the Property; all means of access to and from the Real
Estate, Improvements or all or any other portion of the Property, whether public or private; all
ACTIVE 697188286v2 3
streets, alleys,passages, ways, water courses, water and mineral rights relating to the Leasehold,
Improvements or all or any other portion of the Property; and all other claims or demands of
Mortgagor, either at law or in equity, in possession or expectancy of, in, or to the Leasehold,
Improvements or all or any other portion of the Property,(ii) any right of Mortgagor to agree to or
acquiesce in any rejection or termination of the Ground Lease,whether made with respect to any
election under section 365(h)of the federal Bankruptcy Code of 1978(or any successor provision)
or under any similar law or right of any nature,or otherwise,(iii)all rights of Mortgagor in,to and
under any present or future leases and subleases of all or any portion of the Property or any
improvements thereon, including without limitation any rents, profits or other sums payable to
Mortgagor thereunder, any landlord's lien rights of Mortgagor as provided by law, any guaranties
or other security provided for such subleases,and all proceeds of any of the foregoing,and(iv)all
of Mortgagor's privileges and rights as lessee under the Ground Lease, and all rights, privileges
and prerogatives of Mortgagor to terminate, cancel, modify,change,supplement, alter, amend or
renew the Ground Lease (all of the foregoing described in this subsection E herein called the
"Appurtenances");
(F) Any and all"proceeds"of any of the above-described Real Estate, Improvements,
Equipment, Leases, Rents, Contracts and Appurtenances, which term "proceeds" shall have the
meaning given to it in the Uniform Commercial Code, as amended, (the "Code") of the State in
which the Property is located (collectively, the "Proceeds") and shall additionally include
whatever is received upon the use, lease,sale, exchange, transfer,collection or other utilization or
any disposition or conversion of any of Mortgagor's right, title and interest in the Real Estate,
Improvements,Equipment,Leases,Rents,Contracts and Appurtenances,voluntary or involuntary,
whether cash or non-cash, including proceeds of insurance and condemnation awards, rental or
lease payments, accounts, chattel paper, instruments, documents, contract rights, general
intangibles,equipment and inventory; and
(G) All of Mortgagor's right,title and interest,now or hereafter acquired,to the payment
of money from Mortgagee to Mortgagor under any Swap Agreement (as defined in the Loan
Agreement)
TO HAVE AND TO HOLD the above granted and conveyed Property unto and to the
proper use and benefit of Mortgagee and its successors and assigns, forever.
PROVIDED ALWAYS, and these presents are upon the express condition, that if(i) all
the Liabilities, including without limitation, all termination payments and any other amounts due
under or in connection with any swap agreements secured hereunder,are paid in full, and(ii)any
swap agreements secured hereunder have matured or been terminated,then this Mortgage and the
estate hereby created shall cease and be null and void and canceled of record.
PROVIDED FURTHER, notwithstanding anything to the contrary set forth herein or in
the other Loan Documents, in no event does or shall the "Property" include all or any portion of
the interest of the City of Miami Beach(the"Lessor")in the Land(as defined in the Ground Lease)
or the Ground Lease.
ACTIVE 69T188286v2 4
The terms of the Loan Documents are hereby made a part of this Mortgage to the same
extent and with the same effect as if fully set forth herein. All capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Loan Documents.
AND Mortgagor covenants and agrees with and represents to Mortgagee as follows:
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall secure
any additional loans as well as any and all present or future advances and readvances under the
Liabilities made by Mortgagee to or for the benefit of or the Property within twenty (20) years
from the date hereof(whether such advances are obligatory or are made at the option of Mortgagee
or otherwise), including, without limitation: (i) principal, interest, late charges, fees and other
amounts due under the Liabilities or this Mortgage; (ii) all advances by Mortgagee to Mortgagor
or any other person to pay costs of erection, construction, alteration, repair, restoration,
maintenance and completion of any improvements on the Property;(iii)all advances made or out-
of-pocket costs reasonably incurred by Mortgagee for the payment of real estate taxes,assessments
or other governmental charges, maintenance charges, insurance premiums, appraisal charges,
environmental inspection, audit,testing or compliance costs, and costs incurred by Mortgagee for
the enforcement and protection of the Property or the lien of this Mortgage;and(iv)all reasonable
legal fees, costs and other expenses incurred by Mortgagee by reason of any Event of Default(as
hereinafter defined). The total amount of the Liabilities that may be so secured may decrease to a
zero amount from time to time, or may increase from time to time, but the total unpaid balance
secured at any one time shall not exceed Eighty-Four Million and No/100 Dollars
($84,000,000.00).
Mortgagor agrees that if, at any time during the term of this Mortgage or following the
commencement of a foreclosure action hereunder(whether before or after the entry of a judgment
of foreclosure), Mortgagor fails to perform or observe any covenant or obligation under this
Mortgage including, without limitation, payment of any of the foregoing, and subject to the
expiration of any applicable grace period (except in the case of an emergency), Mortgagee may
(but shall not be obligated to) take such steps as are reasonably necessary to remedy any such
nonperformance or nonobservance and provide payment thereof. All amounts advanced by
Mortgagee shall be added to the amount secured by this Mortgage and the other Loan Documents
(and, if advanced after the entry of a judgment of foreclosure, by such judgment of foreclosure),
and shall be due and payable on demand,together with interest at the Default Rate set forth in the
Note,such interest to be calculated from the date of such advance to the date of repayment thereof.
2. REPRESENTATIONS,WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee all sums
required to be paid by Mortgagor under the Loan Documents,in accordance with their stated terms
and conditions; (b)perform and comply with all terms,conditions and covenants set forth in each
of the Loan Documents by which Mortgagor is bound; and (c) perform and comply with all of
Mortgagor's obligations and duties as landlord under any Leases.
2.2. Seisin and Warranty. Mortgagor hereby warrants that(a)Mortgagor is seized of
an indefeasible leasehold estate in,and warrants the title to,the Real Estate,and a fee simple estate
ACTIVE 697188286v2 5
in the Improvements and the Property;(b)Mortgagor has the right,full power and lawful authority
to mortgage, grant, convey and assign the same to Mortgagee in the manner and form set forth
herein; and (c) this Mortgage is a valid and enforceable first lien on the Property. Mortgagor
hereby covenants that Mortgagor shall (a) preserve such title and the validity and priority of the
lien of this Mortgage and shall forever warrant and defend the same to Mortgagee against all lawful
claims whatsoever; and (b) execute, acknowledge and deliver all such further documents or
assurances as may at any time hereafter be reasonably required by Mortgagee to protect fully the
lien of this Mortgage.
2.3 Tax and Insurance Escrow Account. In the event that Mortgagor fails to pay
Real Estate Taxes or insurance premiums as required by this Mortgage, then Mortgagee may
require that, as additional security for the Loan and in order to secure the performance and
discharge of Mortgagor's Liabilities, but not in lieu of such Liabilities, Mortgagor shall establish
and maintain at all times during the term of the Loan an impound account("Tax and Insurance
Escrow Account") with Mortgagee for payment of Real Estate Taxes (as defined below) and, if
requested by Bank, insurance on the Property. In such event, Mortgagor will deposit with
Mortgagee a sum equal to ad valorem taxes, annual assessments and charges (collectively, the
"Real Estate Taxes") against the Property plus an amount that approximates two (2) months' of
additional escrow payments,all as reasonably estimated by Mortgagee, less the escrow payments
to be made under the next sentence, before the Real Estate Taxes and, if then in effect, insurance
premiums, respectively, next become due. Thereafter, commencing with the payment of the first
monthly installment under the Note and continuing thereafter on each and every monthly payment
date under the Note until the Liabilities are fully paid and performed, Mortgagor will deposit with
Mortgagee one-twelfth of the amount(as estimated from time to time by Mortgagee)of Real Estate
Taxes and, if applicable, insurance policy premiums to permit Mortgagee to pay, at least thirty
(30)days prior to the due date thereof,the next maturing Real Estate Taxes and premiums for such
policies of insurance. Mortgagor shall be responsible for ensuring the receipt by Mortgagee, at
least thirty(30)days prior to the respective due date for payment thereof,of all bills, invoices and
statements for all Real Estate Taxes and, if applicable, insurance premiums to be paid from the
Tax and Insurance Escrow Account, and so long as no Event of Default has occurred and is
continuing, Mortgagee shall pay (or shall permit Mortgagor to make withdrawals from the Tax
and Insurance Escrow Account to pay) at the maximum available discount the Governmental
Authority or other party entitled thereto directly to the extent funds are available for such purpose
in the Tax and Insurance Escrow Account. Mortgagee shall have the right to rely upon tax
information furnished by applicable taxing authorities in the payment of such Real Estate Taxes
and shall have no obligation to make any protest of any Real Estate Taxes. Any excess over the
amounts required for such purposes shall be held by Mortgagee for future use, applied to any
Liabilities or refunded to Mortgagor, at Mortgagee's option, and any deficiency in such funds so
deposited shall be made up by Mortgagor on demand of Mortgagee. The Tax and Insurance
Escrow Account shall not,unless otherwise explicitly required by applicable law,be or be deemed
to be escrow or trust funds. All such funds so deposited shall bear no interest whatsoever,may be
mingled with the general funds of Mortgagee and shall be applied by Mortgagee toward the
payment of Real Estate Taxes and premiums when statements therefor are presented to Mortgagee
by Mortgagor;provided, however,that following an Event of Default and during the continuance
thereof, such funds may at Mortgagee's option be applied to the payment of the Liabilities in the
order determined by Mortgagee in its sole discretion(such application to be deemed a voluntary
ACTIVE 697188266v2 6
prepayment and subject to any prepayment penalties set forth in the Note, if applicable), and that
Mortgagee may at any time,in its discretion,apply all or any part of such funds toward the payment
of any Real Estate Taxes or premiums which are past due, together with any penalties or late
charges with respect thereto. The conveyance or transfer of Mortgagor's interest in the Property
for any reason (including without limitation the foreclosure of a subordinate lien or security
interest or a transfer by operation of law)shall constitute an assignment or transfer of Mortgagor's
interest in and rights to such funds held by Mortgagee under this Section but subject to the rights
of Mortgagee hereunder.]
2.4. No Encumbrances. Except in connection with the Loan, Mortgagor shall not
create or permit to exist any mortgage,pledge,lien,security interest(including,without limitation,
a purchase money security interest or a Property-Assessed Clean Energy loan ("PACE Loan")),
encumbrance,attachment,levy,distraint or other judicial process on or against the Property or any
part thereof(including, without limitation, fixtures and other personalty), whether superior or
inferior to the lien of this Mortgage,without the prior written consent of Mortgagee,other than the
Permitted Encumbrances (as defined in the Loan Agreement). For the avoidance of doubt,
Mortgagor shall not obtain any PACE Loan against the Property without prior written consent of
Mortgagee, and any PACE Loan incurred without the Mortgagee's consent shall cause a default
hereunder. With respect to encumbrances not constituting liens(e.g.,utility easements,covenants,
etc.), Mortgagee's consent shall not be unreasonably withheld or delayed. Neither Mortgagor nor
its constituents shall obtain any mezzanine or other secondary financing that is secured by an
interest in Mortgagor. Any loans between members of Mortgagor and Mortgagor shall be
subordinate in all respects to the repayment of the Loan.
2.5. No Sale/Transfer. Mortgagor shall not transfer the Leasehold, the Improvements or
other portion of the Property or any part thereof or any direct or indirect interest therein, or permit
or suffer the Property or any part thereof or any direct or indirect interest therein to be transferred,
other than as expressly permitted pursuant to the terms of the Loan Agreement
2.6. Removal of Fixtures. Mortgagor shall not (except (i) in the ordinary course of
business, and (ii)_except in connection with the Cap/Ex Improvements and the TI Work (as
defined in the Loan Agreement)or other alterations permitted by the Loan Agreement("Permitted
Alterations"))remove or permit to be removed from the Property any fixtures presently or in the
future owned by Mortgagor and located on the Real Estate and necessary for Mortgagor's
operation thereof, as the term "fixtures" is defined by the law of the state where the Property is
located(unless such fixtures have been replaced with similar fixtures of equal or greater utility and
value).
2.7. Maintenance and Repair; Alterations. (a) Mortgagor shall (i)abstain from and
not knowingly permit the commission of waste in or about the Real Estate;(ii)keep the Real Estate
at Mortgagor's own cost and expense,in good and substantial repair,working order and condition;
(iii)make or cause to be made, as and when necessary, all repairs and replacements with respect
to the Real Estate required under Section 4.1.19 of the Loan Agreement; and (iv) except in
connection with the making of Permitted Alterations, remove, demolish, materially alter,
discontinue the use of,permit to become deserted, or otherwise dispose of all or any material part
ACTIVE 697186286v2 7
of the Real Estate. All alterations,replacements,renewals or additions made pursuant hereto shall
automatically become a part of the Property and shall be covered by the lien of this Mortgage.
2.8. Compliance with Applicable Laws. Mortgagor agrees to observe, conform and
comply, and to take commercially reasonable efforts to cause its tenants to observe, conform and
comply in all material respects with all federal, state, county, municipal and other governmental
or quasi-governmental laws, rules, regulations, ordinances, codes, requirements, covenants,
conditions, orders, licenses, permits, approvals and restrictions, including without limitation,
Environmental Laws (as defined below) and the Americans with Disabilities Act of 1990
(collectively, the "Legal Requirements"), now or hereafter affecting all or any part of the
Property,within such time as required by such Legal Requirements;provided,however,Mortgagor
shall be permitted to contest the application of any Legal Requirement so long as such contest
operates to prevent enforcement of such Legal Requirement,and is prosecuted with due diligence
and continuity and could not reasonably be determined to have a material adverse effect on the
Property. Upon termination of any proceeding or contest, Mortgagor shall immediately comply
with such Legal Requirement as finally determined in the proceeding or contest. Mortgagor
represents and warrants that, to the best of Mortgagor's knowledge, the Real Estate is currently in
material compliance with all material Legal Requirements applicable to the Property.
2.9. Required Notices. Mortgagor shall notify Mortgagee within five(5)business days
of: (a) receipt of any written notice from any governmental or quasi-governmental authority
relating to the structure, use or occupancy of the Property or alleging a violation of any Legal
Requirement; (b)a material change of the use of all or any part of the Property by Mortgagor; (c)
receipt of any notice from the holder of any lien or security interest in all or any part of the Property
alleging any default on the part of Mortgagor; (d) commencement of any litigation which, if
adversely determined, would materially adversely affect the financial ability of Mortgagor or the
value of the Property; (e)a pending or threatened condemnation of all or any part of the Property;
(f)a fire or other casualty causing damage to all or any part of the Property the cost of repair of
which could reasonably be expected to exceed $50,000; (g) receipt of any notice with regard to
any Release of Hazardous Substances (as such terms are defined below) or any other
environmental matter adversely affecting the Property or Mortgagor's interest therein; (h)receipt
of any request for information, demand letter or notification of potential liability from any entity
relating to potential responsibility for investigation or clean-up of Hazardous Substances on the
Property;(i)receipt of any written notice from any tenant at the Property alleging a default, failure
to perform or any right to terminate its lease or to set-off rents which materially adversely affects
the Property; or (j) receipt of any written notice of the imposition of, or of threatened or actual
execution on,any lien on or security interest in all or any part of the Property.
2.10 Insurance. Mortgagor shall maintain insurance with respect to the Property as
required by the Loan Agreement.
2.11 Performance of Other Agreements Mortgagor shall observe and perform each
and every term,covenant and provision to be observed or performed by Mortgagor pursuant to the
Loan Agreement, any other Loan Document and in all material respects, each and every term,
covenant and provision to be observed or performed by Mortgagor pursuant to any other agreement
or recorded instrument affecting or pertaining to the Property and any amendments,modifications
ACTIVE 697188286v2 8
or changes thereto, provided, however, that, except as otherwise set forth herein or in the Loan
Agreement, any failure to so perform or comply shall not constitute a Default so long as such
failure does not have any material adverse effect on the Mortgagor or the Property.
3. SECURITY AGREEMENT. This Mortgage constitutes a security agreement under the
Code and shall be deemed to constitute a fixture financing statement. Mortgagor hereby grants to
Mortgagee a security interest in all of Mortgagor's right,title and interest in the personal and other
property (other than real property) included in the Property (the " Personal Property"), and all
replacements of, substitutions for, and additions to, such property, and the proceeds thereof.
Mortgagor shall, at Mortgagor's own expense, execute, deliver, file and refile any financing or
continuation statements or other security agreements Mortgagee may require from time to time to
perfect, confirm or maintain the lien of this Mortgage with respect to such property. Without
limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for
Mortgagor to execute, deliver and file such instruments for or on behalf of Mortgagor at
Mortgagor's expense, which appointment, being for security, is coupled with an interest and shall
be irrevocable. If an Event of Default shall occur and be continuing, Lender, in addition to any
other rights and remedies which it may have,shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default under the Code,
including, without limiting the generality of the foregoing, the right to take possession of the
Personal Property or any part thereof, and to take such other measures as Lender may deem
necessary for the care, protection and preservation of the Personal Property. Upon request or
demand of Lender after the occurrence and during the continuance of an Event of Default,
Mortgagor shall,at its expense,assemble the Personal Property and make it available to Lender at
a convenient place (at the Real Estate if tangible property) reasonably acceptable to Lender.
Mortgagor shall pay to Lender,within ten(10)Business Days following written demand,any and
all expenses, including reasonable legal expenses and attorneys' fees and costs, incurred or paid
by Lender in protecting its interest in the Personal Property and in enforcing its rights hereunder
with respect to the Personal Property after the occurrence and during the continuance of an Event
of Default. .
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely,presently and unconditionally conveys,transfers and
assigns to Mortgagee all of Mortgagor's right, title and interest, now existing or hereafter arising,
in and to the Leases and Rents. Notwithstanding that this assignment is effective immediately,so
long as no Event of Default exists, Mortgagor shall have the privilege under a revocable license
granted hereby to operate and manage the Property and to collect, as they become due, but not
prior to accrual, the Rents. Mortgagor shall receive and hold such Rents in trust as a fund to be
applied, and Mortgagor hereby covenants and agrees that such Rents shall be so applied, first to
the operation, maintenance and repair of the Property and the payment of interest, principal and
other sums becoming due under the Liabilities, before retaining and/or disbursing any part of the
Rents for any other purpose. The license herein granted to Mortgagor shall automatically,without
notice or any other action by Mortgagee,terminate upon the occurrence of an Event of Default and
during the continuance thereof, and all Rents collected or received by Mortgagor during such
period shall be held in trust by Mortgagor for the sole and exclusive benefit of Mortgagee,subject
to Mortgagor's right to use same for the operation, maintenance and repair of the Property.
ACTIVE 697188286v2 9
Nothing contained in this Section 4.1,and no collection by Mortgagee of Rents,shall be construed
as imposing on Mortgagee any of the obligations of the lessor under the Leases.
4.2. Mortgagor shall timely perform all of its material obligations under the Leases.
Mortgagor represents and warrants that: (a)Mortgagor has title to and full right to assign presently,
absolutely and unconditionally the Leases and Rents associated with their respective Property; (b)
from and after the date of this Mortgage, no other assignment of any interest in any of the Leases
or Rents shall exist; (c) to Mortgagor's actual knowledge, there are no leases or agreements to
lease all or any portion of the Property now in effect except the Leases disclosed in the rent roll
provided by Mortgagor to Mortgagee at the closing of the Loan,true and complete copies of which
have been furnished to Mortgagee, and no written or oral modifications have been made thereto,
except as has been furnished to Mortgagee; (d)To Mortgagor's knowledge, except as set forth in
the aforedescribed rent roll, there is no existing default by Mortgagor or by any tenant under any
of the Leases, nor has any event occurred which due to the passage of time, the giving or failure
to give notice, or both, would constitute a default under any of the Leases; (e) to Mortgagor's
knowledge,the Leases are in full force and effect; and(f)Mortgagor has not accepted Rent under
any Lease more than thirty(30)days in advance of its due date.
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that Borrower
has no offsets, counterclaims or defenses to the Liabilities either at law or in equity. Mortgagor
shall,within three(3)days upon written request delivered in person or within seven(7)days upon
request by mail, furnish to Mortgagee or Mortgagee's designee a written statement in form
satisfactory to Mortgagee stating the amount due under the Liabilities and whether there are offsets
or defenses against the same,and if so,the nature and extent thereof.
6. (INTENTIONALLY OMITTED)
7. EVENTS OF DEFAULT. An Event of Default under the Loan Agreement shall
constitute an Event of Default under this Mortgage.
8. REMEDIES. If an Event of Default shall have occurred and be continuing, Mortgagee
may take any of the following actions:
8.1. Acceleration. Mortgagee may declare the entire amount of the Liabilities
immediately due and payable,without presentment, demand,notice of any kind,protest or notice
of protest, all of which are expressly waived, notwithstanding anything to the contrary contained
in any of the Loan Documents. Mortgagee may charge and collect interest from the date of default
on the unpaid balance of the Liabilities, at the Default Rate set forth in the Note.
8.2. Possession. Mortgagee may enter upon and take possession of the Property, with
or without legal action, lease the Property, collect therefrom all rentals and, after deducting all
costs of collection and administration expense, apply the net rentals to any one or more of the
following items in such manner and in such order of priority as Mortgagee, in Mortgagee's sole
discretion, may elect: the payment of any sums due under any prior lien, taxes, water and sewer
rents,charges and claims, insurance premiums and all other carrying charges,to the maintenance,
repair or restoration of the Property, or on account of the Liabilities. Mortgagee is given full
authority to do any act which Mortgagor could do in connection with the management and
ACTIVE 697188286v2 10
operation of the Property. This covenant is effective either with or without any action brought to
foreclose this Mortgage and without applying for a receiver of such rents. In addition to the
foregoing, upon the occurrence of an Event of Default, Mortgagor shall pay monthly in advance
to Mortgagee or to any receiver appointed to collect said rents the fair and reasonable rental value
for Mortgagor's use and occupation of the Property, and upon default in any such payment
Mortgagor shall vacate and surrender the possession of the Property to Mortgagee or to such
receiver. If Mortgagor does not vacate and surrender the Property then Mortgagor may be evicted
by summary proceedings.
8.3. Foreclosure. Mortgagee may institute any one or more actions of mortgage
foreclosure against all or any part of the Property, or take such other action at law, equity or by
contract for the enforcement of this Mortgage and realization on the security herein or elsewhere
provided for, as the law may allow, and may proceed therein to final judgment and execution for
the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall bear interest
at the greater of(a) the statutory rate provided for judgments, or (b) the Default Rate. Without
limiting the foregoing,Mortgagee may foreclose this Mortgage and exercise its rights as a secured
party for all or any portion of the Liabilities which are then due and payable, subject to the
continuing lien of this Mortgage for the balance not then due and payable. In case of any sale of
the Property by judicial proceedings, the Property may be sold in one parcel or in such parcels,
manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone
claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in
equity, be limited, except as herein provided, in the exercise of its rights in the Property or in any
other security hereunder or otherwise appertaining to the Liabilities or any other obligation secured
by this Mortgage, whether by any statute, rule or precedent which may otherwise require said
security to be marshalled in any manner and Mortgagor, for itself and others as aforesaid, hereby
expressly waives and releases any right to or benefit thereof. The failure to make any tenant a
defendant to a foreclosure proceeding shall not be asserted by Mortgagor as a defense in any
proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid
after the foreclosure sale of the Property.
8.4. Appointment of Receiver. Mortgagee may petition a court of competent
jurisdiction to appoint a receiver of the Property. Such appointment may be made either before or
after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time
of application for such receiver, without regard to the then value of the Property or whether the
Property shall be then occupied as a homestead or not, and without regard to whether Mortgagor
has committed waste or allowed deterioration of the Property, and Mortgagee or any agent of
Mortgagee may be appointed as such receiver. Mortgagor hereby agrees that Mortgagee has a
special interest in the Property and absent the appointment of such receiver the Property shall
suffer waste and deterioration and Mortgagor further agrees that it shall not contest the
appointment of a receiver and hereby so stipulates to such appointment pursuant to this paragraph.
Such receiver shall have the power to perform all of the acts permitted Mortgagee pursuant to
Section 8.2 above and such other powers which may be necessary or customary in such cases for
the protection,possession,control,management and operation of the Property during such period.
8.5. Rights as a Secured Party. Mortgagee shall have, in addition to other rights and
remedies available at law or in equity, the rights and remedies of a secured party under the Code.
ACTIVE 697186286v2 11
Mortgagee may elect to foreclose such of the Property as then comprise fixtures pursuant either to
the law applicable to foreclosure of an interest in real estate or to that applicable to personal
property under the Code. To the extent permitted by law, Mortgagor waives the right to any stay
of execution and the benefit of all exemption laws now or hereafter in effect.
8.6. Excess Monies. Mortgagee may apply on account of the Liabilities any
unexpended monies still retained by Mortgagee that were paid by Mortgagor to Mortgagee: (a)
for the payment of, or as security for the payment of Real Estate Taxes, insurance premiums, or
any other charges; or(b)to secure the performance of Mortgagor of its obligations hereunder.
8.7. Other Remedies. Mortgagee shall have the right, from time to time, to bring an
appropriate action to recover any sums required to be paid by Mortgagor under the terms of this
Mortgage,as they become due,without regard to whether or not any other Liabilities shall be due,
and without prejudice to the right of Mortgagee thereafter to bring an action of mortgage
foreclosure,or any other action,for any default by Mortgagor existing at the time the earlier action
was commenced. In addition, Mortgagee shall have the right to set-off all or any part of any
amount due by Mortgagor to Mortgagee under any of the Liabilities, against any indebtedness,
liabilities or obligations owing by Mortgagee in any capacity to Mortgagor, including any
obligation to disburse to Mortgagor any funds or other property on deposit with or otherwise in
the possession, control or custody of Mortgagee.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage shall be in writing
and shall be given by either (a) hand-delivery, or (b) reliable overnight commercial courier
(charges prepaid), to the addresses listed in this Mortgage. Notice shall be deemed to have been
given and received: (a) if by hand delivery,upon delivery; and(b) if by overnight courier, on the
date scheduled for delivery. A party may change its address by giving written notice to the other
party as specified herein.
9.2. Remedies Cumulative. The rights and remedies of Mortgagee as provided in this
Mortgage or in any other Loan Document shall be cumulative and concurrent, may be pursued
separately,successively or together,may be exercised as often as occasion therefor shall arise,and
shall be in addition to any other rights or remedies conferred upon Mortgagee at law or in equity.
The failure, at any one or more times, of Mortgagee to assert the right to declare the Liabilities
due,grant any extension of time for payment of the Liabilities,take other or additional security for
the payment thereof, release any security, change any of the terms of the Loan Documents, or
waive or fail to exercise any right or remedy under any Loan Document shall not in any way affect
this Mortgage or the rights of Mortgagee.
9.3. No Implied Waiver. Mortgagee shall not be deemed to have modified or waived
any of its rights or remedies hereunder unless such modification or waiver is in writing and signed
by Mortgagee, and then only to the extent specifically set forth therein. A waiver in one event
shall not be construed as continuing or as a waiver of or bar to such right or remedy on a subsequent
event.
ACTIVE 697188286v2 12
9.4. Partial Invalidity. The invalidity or unenforceability of any one or more
provisions of this Mortgage shall not render any other provision invalid or unenforceable. In lieu
of any invalid or unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable provision as may be
possible.
9.5. Binding Effect. The covenants, conditions, waivers, releases and agreements
contained in this Mortgage shall bind, and the benefits thereof shall inure to,the parties hereto and
their respective heirs,executors,administrators,successors and assigns and are intended and shall
be held to be real covenants running with the land; provided, however, that this Mortgage cannot
be assigned by Mortgagor without the prior written consent of Mortgagee, and any such
assignment or attempted assignment by Mortgagor shall be void and of no effect with respect to
Mortgagee.
9.6. Modifications. This Mortgage may not be supplemented, extended, modified or
terminated except by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
9.7. Commercial Loan. Mortgagor represents and warrants that the loans or other
financial accommodations included as Liabilities secured by this Mortgage were obtained solely
for the purpose of carrying on or acquiring a business or commercial investment and not for
residential,consumer or household purposes.
9.8. Governing Law. This Mortgage shall be governed by and construed in accordance
with the substantive laws of the State of Florida without reference to conflict of laws principles.
9.9. Joint and Several Liability. If Mortgagor consists of more than one person or
entity,the word"Mortgagor"shall mean each of them and their liability shall be joint and several.
9.10. Non-Merger. In the event Mortgagee shall acquire title to the Leasehold, the
Improvements or the Property by conveyance from Mortgagor or as a result of foreclosure, this
Mortgage shall not merge in the leasehold estate of the Property but shall remain and continue as
an existing and enforceable lien for the Liabilities secured hereby until the same shall be released
of record by Mortgagee in writing.
9.11. Ground Lease/ No Lien against Fee Interest. This Mortgage is subject and
subordinate to the terms of the Ground Lease and, except as expressly set forth in the Ground
Lease regarding Lessor's subordination in certain circumstances of its right to Percentage Rent(as
defined in the Ground Lease), to Lessor's interest in the Real Estate and the Ground Lease
(collectively defined as "Owner's Interest in the Premises" in the Ground Lease). As such,
pursuant to Section 11.3 of the Ground Lease, the Mortgage is not and shall not at any time be a
lien or encumbrance upon all or any portion of Owner's Interest in the Premises, and pursuant to
Section 12.2 of the Ground Lease,Owner's Interest in the Premises is not and shall not at any time
be subject or subordinate to the Mortgage.In the event that Mortgagor shall obtain title to the Real
Estate,this Mortgage shall encumber the Real Estate and Mortgagor shall execute and deliver such
ACTIVE 697188286v2 13
documents as Mortgagee shall reasonably require to further evidence and confirm such
encumbrance.
9.12 Notices to Lessor and Performance by Lessor. Pursuant to Section 11.13(a) of
the Ground Lease,Mortgagee shall send to Lessor,simultaneously with the sending of such default
notices to Mortgagor, copies of all default notices or other notices relating to the failure of
Mortgagor to comply with the terms of this Mortgage or any other Loan Document,which notices
are sent pursuant to the Loan Agreement or any other Loan Document related to the Loan to
Mortgagor. All notices shall be sent to Lessor to the following address:
City of Miami Beach,Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
With a copy to:
City of Miami Beach,Florida
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention: City Attorney
9.13 Acceptance of Performance. Pursuant to Section 11.4(f) of the Ground Lease,
Mortgagee shall accept performance by Lessor, at Lessor's option, within the applicable grace
periods available to Mortgagor, to cure defaults under any covenant, condition or agreement on
Mortgagor's part to be performed under the Mortgage with the same force and effect as though
performed by Mortgagor.
9.1 Estoppel Requests. Pursuant to Section 11.13(b)of the Ground Lease,Mortgagee
shall comply with all reasonable estoppel requests of Lessor. Lessor shall also comply with all
reasonable estoppel requests of the Mortgagee.
9.15 Proceeds from Insurance or Condemnation Awards. Mortgagee acknowledges
Section 11.7 of the Ground Lease which states"To the extent that this Lease requires that insurance
proceeds paid in connection with any damage or destruction to the Premises or the proceeds of an
award paid in connection with a taking referred to Article 9 be applied to restore any portion of
the Premises, no Mortgagee shall have the right to apply the proceeds of insurance or awards
toward the payment of the sum secured by its Mortgage, except for the reasonable costs of
collection thereof."
10. LEASEHOLD
(a) Mortgagor shall promptly pay all rent, additional rent, taxes and all other sums and
charges when due and payable under the terms of the Ground Lease, shall fully and promptly
perform and observe all of the agreements, terms, covenants and conditions required to be
ACTIVE 697188286x2 14
performed and observed by Mortgagor under the Ground Lease within the grace periods provided
therein for Mortgagor's performance (in contrast to any additional grace periods provided in the
Ground Lease for curative action by Mortgagee),and shall do all things necessary to preserve and
keep unimpaired Mortgagor's rights under the Ground Lease. Upon demand Mortgagor shall
furnish to Mortgagee proof of payment of all sums which the Ground Lease requires Mortgagor to
pay and to provide proof of such payment to the Lessor. (b) If Mortgagor fails to observe or
perform any covenant or agreement on the part of the lessee to be observed or performed under
the Ground Lease or if Mortgagee receives from the Lessor any notice of any default by the lessee
thereunder,then Mortgagee may rely on such notice and may take any action that Mortgagee in its
sole discretion deems necessary or advisable to cure such default, even though the existence of
such default or the nature thereof be questioned or denied by Mortgagor or by any person on behalf
of Mortgagor. Mortgagor hereby expressly grants to Mortgagee the absolute and immediate right
to enter in and upon the Property or any part thereof to such extent and as often as Mortgagee in
its sole discretion deems necessary or desirable to prevent or cure any default by Mortgagor under
the Ground Lease or under any Loan Document. Mortgagee may pay and expend such sums of
money as Mortgagee in its sole discretion deems necessary for any such purpose and upon so doing
shall be subrogated to any and all rights of Mortgagor as lessee, and all such sums shall bear
interest, shall be paid and shall be secured as provided in paragraph 14. (c) Unless Mortgagee
shall otherwise consent in writing, the fee title to the Land and the Leasehold under the Ground
Lease shall not merge for so long as the Loan remains unpaid, but shall always remain separate
and distinct estates, notwithstanding the union thereof in the Lessor, in Mortgagor or in any third
person whomsoever, whether by purchase or otherwise. (d) If the Ground Lease is terminated
before the natural expiration of its term for any reason whatsoever and if Mortgagee or its designee
shall acquire from the Lessor a new lease of the Property or any portion thereof(whether pursuant
to any provision of the Ground Lease or otherwise), then Mortgagor shall have no right, title or
interest whatsoever in or to such new lease or the leasehold estate created thereby. (e)Mortgagor
shall promptly notify Mortgagee in writing of any request for arbitration proceedings made by any
party to the Ground Lease, as well as provide notice to Mortgagee of the institution of such
arbitration and the progress thereof and any determination made by the arbitrators thereunder.
Mortgagee shall have the right to participate in any such arbitration proceedings in association
with Mortgagor or on Mortgagee's own behalf as an interested party. (f) The generality of the
provisions of this paragraph or any other provision contained in this Mortgage relating to the
Ground Lease or the Leasehold shall not be limited by other more particular provisions of this
Mortgage or any other Document setting forth obligations of Mortgagor which are also required
of Mortgagor as the lessee under the Ground Lease.
11. Swap Transaction. Mortgagor hereby acknowledges and agrees that: (1) the
Mortgagor's obligations under any swap transaction entered into between Mortgagor and
Mortgagee in connection with the Note pursuant to the Swap Agreement, are and shall be
expressly included within the obligations hereunder; and (2)the documents applicable to such
swap transaction shall be cross-collateralized and cross-defaulted, pari passu, with this
Mortgage and the other Loan Documents.
[Remainder of page intentionally left blank;signature page to follow.]
ACTIVE 697188286v2 15
IN WITNESS WHEREOF, Mortgagor, intending to be legally bound,has duly executed
and delivered this Mortgage as of the day and year first above written.
WITNESS: MORTGAGOR:
RK RIVANI LLC,a Florida limited liability
A._ B
•
Print Name: M4.A c .r m.,..per., Robert Rivani,Manager
Address: 7$Y/ '''. (it" A-62
kr.z%.if...•or fL 37.s.
\z4s e""--7
Print Name: 94ki WQ j1, —M LLiA,
Address: 4 S. IJd kilax L Irate 4202,
R2 avoLau P1aA, (V 3512S`
STATE OF FLORIDA )
)ss
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of physical presence
or [ ] online notarization, this $ day of April, 2024, by Robert Rivani, as Manager of RK
RIVANI LLC, a Florida limited liability company, on behalf of the limited liability company,
who is personally known to me or who has produced as identification.
[NOTARIAL SEAL] Print Name: litiuttS Vibidvi
Notary Public, S to of Florida
'if:jCommission#: H#'4'4/8 Zz9
v. MnrcorN MARCUS 8 HH � My Commission Expires:jowl v./ 2ozg
%b. —�4d.. EXPIRES:January 28,2028 (/
[Signature Page to Leasehold Mortgage,Assignment of Rents and Security Agreement]
Schedule A
LEASE AND REAL ESTATE DESCRIPTION
That certain Lease Agreement by and between the City of Miami Beach, Florida, a
municipal corporation, as Owner/Landlord, and Lincoln Plaza Partners, LLC, a Florida
limited liability company, as Tenant, dated September 1, 1999, and recorded September
3, 1999, in Official Records Book 18770,Page 447;as assigned to LNR Jefferson, LLC,
a Florida limited liability company, by that certain Assignment and Assumption
Agreement recorded June 5, 2001, in Official Records Book 19700, Page 3095;together
with Consent to Assignment and Assumption by the City of Miami Beach Florida,
recorded May 17, 2001, in Official Records Book 19669, Page 1035, as further assigned
to Lincoln Miami Beach Investments, LLC, a Delaware limited liability company, by
Assignment and Assumption of Ground Lease,recorded July 20,2006,in Official Records
Book 24738, Page 4073, as further assigned to CLPF-Lincoln, LLC, by Assignment and
Assumption of Ground Lease recorded April 15, 2016, in Official Records Book 30039,
Page 4656,as further assigned to RK Rivani LLC,a Florida limited liability company,by
that certain assignment and Assumption Agreement of Ground Lease recorded in Official
Records Book ,Page , all of the
Public Records of Miami-Dade County, Florida, demising the following described land
(the"Real Estate"):
Lots 7 through 10,inclusive,and Lots 14 through 20,inclusive, in Block 37,PALM
VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6,
Page 29, of the Public Records of Miami-Dade County, Florida
Schedule A
ACTIVE 697188286v2