Agenda 02/08/2022 Item #16F 6 (Ground Lessor Consent & Estopel for CC BSG Naples, LLC (BigShots))16.F.6
02/08/2022
EXECUTIVE SUMMARY
Recommendation that the Board approve and authorize its Chair to execute a Ground Lessor
Consent and Estoppel required for CC BSG Naples, LLC ("BigShots") to receive financing
necessary to develop and use the former Golden Gate Golf Course pursuant to the Board approved
Collier County Standard Form Long Term Lease and Operating Agreement, as amended.
OBJECTIVE: Execute a Ground Lessor Consent and Estoppel required for BigShots to receive funding
for the Golden Gate Golf Course project.
CONSIDERATIONS: On May 25, 2021, the Board approved a Lease agreement with BigShots to
develop and construct a golf and entertainment complex at the site of the former Golden Gate Golf
Course property. Since that date, BigShots has been diligently working with a local lender to arrange its
financing for the project. To finance the project, BigShots is receiving a $12,717,000 loan from First
Foundation Bank ("Bank") to develop and use the former Golden Gate Golf Course pursuant to the terms
of the Board approved Collier County Standard Form Long-term Lease and Operating Agreement, as
amended ("Lease").
As a condition to financing, Bank requires that Collier County approve and execute a Ground Lessor
Consent and Estoppel ("Consent and Estoppel"). These terms are to protect Bank's interest in the project
in the event that BigShots defaults on its financing and is unable to perform. Notable terms contained in
the Consent and Estoppel include:
1. An acknowledgement that during the term of the Lease title to the improvements, fixtures
and buildings belong to BigShots. (Paragraph 2.1 of the Consent and Estoppel.)
2. An assertion that BigShots is not presently in default of the Lease and no rent is due.
(Paragraph 2.5 of the Consent and Estoppel.)
3. Agreement that until loan is paid, County will not consent to any mortgage on the
property. (Paragraph 2.7 of Consent and Estoppel.)
4. Agreement that any lien on property is subordinate to the Mortgage. (Paragraph 2.7 of
Consent and Estoppel.)
5. Agreement that notices of default sent by County will also be sent to Bank with
opportunity but not obligation for Bank to cure the default. (Paragraph 3.1 of Consent and
Estoppel.) Advance notice of such potential default must be given to Bank before official default
notice.
6. Acknowledge that Bank may assign Mortgage to a third party. (Paragraph 4 of Consent
and Estoppel.)
7. Acknowledgement that in the event of a foreclosure or acceptance of an assignment of
the Lease in lieu of foreclosure, Bank will assume all of Bigshot's obligations with some limited
exceptions. (Paragraph 4.1 of Consent and Estoppel.)
8. Agreement that Bank must consent to material amendments or modifications to the
Lease. (Paragraph 5.1 of Consent and Estoppel.)
9. Agreement that County will not agree to any mutual termination nor accept any surrender
of the Lease, except upon the expiration of the term of the Lease or its termination in the event of
a default. (Paragraph 5.1 of Consent and Estoppel.)
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10. Agreement that in the event of default, foreclosure or bankruptcy County will enter into
new Lease with Bank with payments made directly to Bank. (Paragraph 5.4 of Consent and
Estoppel.)
11. Agreement to prevailing party attorney's fees. (Paragraph 6 of Consent and Estoppel.)
Paragraph 2.1 of the Consent and Estoppel requires that Collier County has received a copy of the
Leasehold Mortgage and the promissory note secured thereby and approved of the recording of the
Leasehold Mortgage. The draft Mortgage and Note are back-up to this item.
The Fourth Amendment to the Lease requires that Bigshots secure financing by February 28, 2022.
Bank's legal counsel informed the County Attorney's Office that the loan is scheduled to timely close.
FISCAL IMPACT: There is no Fiscal Impact associated with this Executive Summary.
GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with
this Executive Summary.
LEGAL CONSIDERATIONS: This item is approved for form and legality and requires a majority
vote for Board approval. - JAB
RECOMMENDATION: To approve and authorize its Chair to execute a Ground Lessor Consent and
Estoppel required for CC BSG Naples, LLC (`BigShots") to receive financing necessary to develop and
use the former Golden Gate Golf Course pursuant to the Board approved Collier County Standard Form
Long Term Lease and Operating Agreement.
Prepared by: Geoffrey Willig, County Manager's Office Senior Operations Analyst
ATTACHMENT(S)
1. CAO APPROVED GROUND LESSOR CONSENT AND ESTOPPEL (PDF)
2. Leasehold Mortgage and Security Agreement (DOC)
3. Promissory Note (DOC)
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16.F.6
02/08/2022
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.17.6
Doe ID: 21230
Item Summary: Recommendation that the Board approve and authorize its Chair to execute a
Ground Lessor Consent and Estoppel required for CC BSG Naples, LLC (`BigShots") to receive
financing necessary to develop and use the former Golden Gate Golf Course pursuant to the Board
approved Collier County Standard Form Long Term Lease and Operating Agreement, as amended.
Meeting Date: 02/08/2022
Prepared by:
Title: Sr. Operations Analyst — County Manager's Office
Name: Geoffrey Willig
02/02/2022 8:10 AM
Submitted by:
Title: Division Director - Corp Fin & Mgmt Svc — County Manager's Office
Name: Mark Isackson
02/02/2022 8:10 AM
Approved By:
Review:
County Attorney's Office
County Attorney's Office
Office of Management and Budget
Office of Management and Budget
County Attorney's Office
County Manager's Office
Board of County Commissioners
Jennifer Belpedio Additional Reviewer
Geoffrey Willig Level 2 Attorney Review
Debra Windsor Level 3 OMB Gatekeeper Review
Susan Usher Additional Reviewer
Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
Amy Patterson Level 4 County Manager Review
Geoffrey Willig Meeting Pending
Completed
02/02/2022 10:36 AM
Skipped
02/02/2022 8:18 AM
Completed
02/02/2022 10:38 AM
Completed
02/02/2022 11:33 AM
Completed
02/02/2022 3:42 PM
Completed
02/02/2022 4:04 PM
02/08/2022 9:00 AM
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16.F.6.a
GROUND LESSOR CONSENT AND ESTOPPEL
This GROUND LESSOR CONSENT AND ESTOPPEL ("Agreement") is given on
2022, by and between Collier County, a political subdivision of the State of
Florida ("Lessor"), and CC BSG Naples, LLC, a Nevada limited liability company, registered to
do business in the State of Florida ("Lessee"), in favor of First Foundation Bank, a California
state -chartered non-member bank (together with its successors and assigns "Lender"), with
respect to the following facts:
RECITALS
A. Lessee is the ground tenant pursuant to that certain "Lease" (as hereinafter
defined) and the holder of a leasehold interest ("Leasehold Interest") in that certain real property
in the County of Collier, State of Florida, the legal description of which is more particularly
described on Exhibit "A" attached hereto ("Property").
B. Lender is making a loan to Lessee in the sum of Twelve Million Seven Hundred
Seventeen Thousand and 00/100 Dollars ($12,717,000.00) ("Loan"), which Loan is to be
secured in part by a Leasehold Mortgage and Security Agreement ("Leasehold Mortgage")
encumbering the Lessee's Leasehold Interest under the Lease.
C. In connection with the making of the Loan, Lender, Lessee and Lessor have
agreed to execute and deliver to Lender this Agreement.
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lessor and Lessee, for themselves and their successors and
assigns, hereby represent and warrant to Lender and covenant and agree for the benefit of
Lender as follows:
CONSENT
1. Lease. The term "Lease" shall mean that certain Collier County Standard Form
Long -Term Lease and Operating Agreement dated as of May 25, 2021, by and between Lessee
and Lessor, as amended from time to time.
2. Estoppel Provisions. Lessor recites and confirms to Lender as follows:
2.1 Lessor has received a copy of the Leasehold Mortgage and the
promissory note secured thereby and approved of the recording of the Leasehold Mortgage as
an encumbrance against Lessee's Leasehold Interest under the Lease and Lessee's right, title
and/or interest in any improvements, fixtures and other property located on the Property.
Lessor hereby agrees that Lender shall have all of the rights of a leasehold mortgagee under
Article 10 of the Lease. Lessor further agrees that the assignment of rents and subleases
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contained in the Leasehold Mortgage includes all rents and other sums due from subleases and
concessionaries on the Property.
2.2 The Lease is unmodified, in full force and effect and is enforceable
against Lessor in accordance with its terms. The Lease represents the entire agreement
between Lessor and Lessee. Lessor has no rights or interests in the Property or any part
thereof other than as set forth in the Lease. Lessee is not in default under the Lease and no
event has occurred and, to the best of Lessor's knowledge, no conditions exist which, with the
giving of notice or the lapse of time, or both would constitute a default under the Lease. There
are no disputes between Lessor and lessee concerning the Lease, the Property or the
Improvements therein or thereon and Lessee has completed any and all construction
improvements or otherwise under the Lease.
2.3 The term of the Lease commenced on May 25, 2021, the current term of
the Lease is for twenty (20) years, and Lessee has the option to extend the Lease for four (4)
successive renewal periods of five (5) years each.
2.4 Current monthly rent under the Lease is $0.00.
2.5 There is not past due and owing rent claimed by Lessor under the Lease;
no rent has been paid in advance, other than as provided by the Lease; the sum of $0.00 is
currently the balance of the security deposit and/or last month's rent held by Lessor; all
requirements of the Lease required to be performed by Lessee as of the date hereof have been
complied with and there has been no violation of or default under any of the Lease terms on the
part of Lessee or Lessor as of this date, and no facts exist which, with the giving of notice,
and/or the passage of time, would constitute such a default.
2,6 Lessor acknowledges that during the term of the Lease, including any
extensions or renewal period, title to the improvements, fixtures and buildings located on the
Property shall remain in Lessee (including its successors) under the Lease. Lessor has not
received any notice that (a) the Property is in violation of any laws, municipal ordinances, rules
or requirements, including without limitation environmental laws, affecting the Property as of the
date hereof, or (b) there is any pending or threatened condemnation action or eminent domain
proceeding affecting the Property.
2.7 Notwithstanding anything to the contrary contained in the Lease, until the
Loan is paid in full to Lender, Lessor will not cause or consent to any mortgage of its fee title
ownership interest in the Property or to any material amendment, modification, cancellation,
termination or change of the Lease, without the prior written consent of Lender, which consent
shall not be unreasonably withheld, conditioned or delayed; provided, however, (i) nothing
herein shall be deemed to require Lender consent in connection with any increases of rent set
forth in the Lease, and (ii) any mortgage, lien, encumbrance or other interest of any third party in
or against Lessor's fee title ownership interest in the Property shall be subordinate to the Lease
and the Leasehold Mortgage.
2.8 Lessor has taken all necessary action and received all necessary
approvals with respect to the execution and delivery of this Agreement, and the persons who
executed this Agreement on behalf of the Lessor were duly authorized to do so.
2.9 No actions, voluntary or involuntary, are pending by or against Lessor
under the bankruptcy laws of the United States or under the insolvency laws of any state
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thereof. Notwithstanding anything to the contrary contained in the Lease, Lessor has not
assigned, transferred, mortgaged or hypothecated the Lease or any interest therein or Lessor's
fee simple title to the Property. Lessor has not received any notice that Lessee has made any
prior assignment, pledge or hypothecation of all or any part of Lessee's interest in the Lease or
the Property,.
2.10 Lessor shall not disturb the possession, interest or quiet enjoyment of any
permitted sublessee of Lessee for any reason, or in any manner, which would materially and
adversely affect Lender's rights under the Leasehold Mortgage,
2.11 Lessor hereby subordinates to the lien of the Leasehold Mortgage
(including UCC Financing Statements), any lien provided for in the Lease and any statutory or
possessory liens, including, without limitation, rights of levy or distraint for rent, it may have or
assert under the Lease against any of the assets of the Lessee under the Lease. Lessor hereby
consents to Lender entering the Property for the purpose of Lender exercising its rights and
remedies under the Leasehold Mortgage including, without limitation, removing equipment,
trade fixtures and other personal property from the Property, provided, however, Lender agrees
to repair any damage resulting from such removal.
3. Notice and Cure Rights.
3.1 In the event Lessor sends any notice to Lessee pursuant to the Lease
(each, a "Notice"), including without limitation a notice of default, notice of condemnation or
notice of termination due to default, Lessor will send a contemporaneous, duplicate copy of
such Notice to Lender. Lender will have the right, but not the obligation, to cure such default
and Lessor will accept Lender's cure of any default by Lessee tendered within the cure period
set forth in Section 11 of the Lease (provided, however, with respect to each default under the
Lease which can be cured by the payment of money, either to Lessor or to third -parties, in
accordance with the terms and conditions of the Lease (each, a "Monetary Default"), Lender
shall have at least thirty (30) additional days from the date of Lender's receipt of a Notice of
such Monetary Default to cure such Monetary Default). With respect to defaults under the
Lease which cannot be cured by the payment of money or are personal to Lessee (such as any
default with respect to the corporate status of Lessee, the filing of bankruptcy of Lessee, etc.),
Lessor agrees to waive each such default that Lender is reasonably incapable of curing, and
Lessor has not right to terminate the Lease as a result of any such default that Lender is
reasonably incapable of curing (provided, however, with respect to each default under the
Lease which cannot be cured by the payment of money, in accordance with the terms and
conditions of the (each, a "Non -monetary Default"), Lender shall have at least sixty (60)
additional days from the date of Lender's receipt of a Notice of such Non -monetary Default to
cure such Non -monetary Default), Within 10 days after a request by Lender, Lessor shall
provide Lender with a signed statement indicating whether or not any defaults exist under the
Lease and such other matters concerning the Property and the Lease as Lender may
reasonably request, Lessor acknowledges that while the Lease is in effect the Lessee under
the Lease holds fee title to the Improvements; provided, however, fee title to the Improvements
shall vest in Lessor upon the expiration or earlier termination of the Lease (but such vesting
issubject to Lender's rights to succeed to the Lessee's fee title to the Improvements as a result
of Lender exercising its right to enter into a new ground lease for the Property pursuant hereto).
3.2 There shall be no merger of title in the event that Ground Lessor or
Ground Lessee, or their successors in interest, holds title, directly or indirectly, to both the
Leasehold Interest and the fee interest in the Property.
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3.3 All notices to Lender shall be provided at the address set forth below or
such other address or person as Lender may from time to time hereafter specify in the manner
provided above;
If to Lender; First Foundation Bank
3560 Kraft Road
Naples, Florida 34105
Attn: Scott D. Koenig, Senior Vice President
4. Assignment of Riqhts.
4.1 Lender shall have the right to assign its right, title and interest in the
Leasehold Mortgage to any third party. Until Lender or its assignee has completed a
foreclosure of the Leasehold Mortgage or accepted an assignment of the Lease in lieu of
foreclosure, neither Lender not its assign shall be deemed to have assumed any of Lessee's
obligations under the Lease and Lessee shall be responsible for all of its obligations under the
Lease; provided however, in the event that Lender and/or Lessee have not cured any default
under the Lease pursuant to the terms hereof and the Lease, Lessor shall be entitled to its
rights under the Lease. After any such foreclosure or acceptance of an assignment of the
Lease in lieu of foreclosure, Lender or its assignee, as the case may be, shall be deemed by
virtue of such conveyance to have assumed all of Lessee's obligations accruing under the
Lease from and after the date of such conveyance and Lessor shall recognize Lender as tenant
under the Lease; provided, however, that notwithstanding anything to the contrary contained in
the Lease and/or this Agreement, Lender shall not be obligated to construct and/or rebuild any
improvements on the Property beyond the cost of any insurance proceeds or condemnation
award actually received by Lender; provided further that Lender's assignee shall be required to
perform all of Lessee's obligations under the Lease, Notwithstanding anything to the contrary
contained in the Lease, Lessor hereby agrees that, in connection with any foreclosure, deed -in -
lieu of foreclosure or any other enforcement action under the Leasehold Mortgage, Lender shall
have the right to assign its right, title and interest in the Lease, or the new ground lease as
provided herein, to any third party so long as the assignee delivers to Lessor a written
assumption agreement signed by the assignee wherein the assignee assumes the obligations of
the ground lease accruing under the Lease, or such new ground lease, from and after the date
of such assignment. Lender shall not be liable for obligations under the Lease in excess of
Lender's interest in the Property (including without limitation any rents, issues and proceeds
from the Property). Upon any such assumption of the ground lessee's obligations under the
Lease, or such new ground lease, by an assignee of Lender, Lender shall be automatically
released of all of its obligations under the Lease, or such new ground lease. Nothing in this
Section 4.1 shall be construed to imply that Lender shall not be required to cure any default
under the Lease pursuant to the terms of the Lease and this Agreement.
4.2 Lessor acknowledges that the Leasehold Mortgage contains a power of
attorney from Lessee in favor of Lender pursuant to which Lender shall have the right upon the
occurrence of an "Event of Default" (as defined in the Leasehold Mortgage) to exercise certain
of Lessee's rights as tenant under the Lease. Lessor agrees to recognize such power of
attorney and to accept the performance by Lender or its assignee of Lessee's rights as tenant
under the Lease pursuant to such power of attorney; provided, however, that Lender or its
assignee shall not be deemed to have assumed Lessee's obligations as tenant under the Lease
by virtue of Lender or its assignee exercising its rights under such power of attorney unless and
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until Lender or its assignee has completed a foreclosure of the Leasehold Mortgage or accepted
an assignment of the Lease in lieu of foreclosure,
5. Mortgagee Protections. During the continuance of the Leasehold Mortgage and until
such time as the lien of the Leasehold Mortgage shall have been extinguished, the parties agree
as follows:
5.1 Lessor shall not agree to any mutual termination nor accept any
surrender of the Lease, except upon the expiration of the term of the Lease or its termination in
the event of a default thereunder, subject to Section 5.3 below. Lessor further agrees that no
material amendment or modification of the Lease shall be binding upon the Lender or any
purchaser in foreclosure from Lender unless Lender has given its prior written consent to such
amendment or modification.
5.2 Lender may be named insured on any fire and other casualty insurance
policies carried by Lessee and covering the Property and all improvements thereto. All
proceeds of any insurance policies or condemnation award shall be held by Lender, for the
benefit of Lender and Lessee and subject to disbursement or application in accordance with the
Leasehold Mortgage. In the even that at any time prior to the expiration of the term of the Lease
there shall be partial or total destruction of the buildings and improvements then on the Property
from any cause, Lessee may elect to restore and rehabilitate said building and improvements.
Subject to the terms and conditions of, and except as otherwise provided in, the Leasehold
Mortgage, all proceeds of all property damage insurance shall be disbursed to Lessee upon
such terms as Lender may require pursuant to the Leasehold Mortgage.
5.3 Lessor agrees with Lender that from and after the date hereof, Lessor will
not terminate or seek to terminate the Lease by reason of any act or omission of Lessee
thereunder or for any other reason (including without limitation the bankruptcy of Lessee) until
Lessor shall have given written notice, by overnight courier, of said act or omission to Lender at
the address set forth above and Lender shall have the right (but not the obligation) to enter the
Property and cure any default of Lessee under the Lease (the cure period to include such time
as may be required for Lender to cure the default by if necessary, taking possession of the
Property, by foreclosure, through deed in lieu of foreclosure or otherwise, its being expressly
acknowledged that to the payment of rent, providing any insurance and making any other
payments do not require possession of the Property) and Lender shall have the right, but not the
obligation, at any time prior to termination of the Lease to pay all rental due thereunder, to
provide any insurance and make any other payments, to make any repairs and improvements
and do any other act or thing required of Lessee thereunder, and to do any act or thing which
may be necessary and proper to be done in the performance and observance of the covenants,
conditions and agreements thereof to prevent the termination of the Lease. All payments so
made, and all things so done and performed by Lender shall be as effective to prevent a
termination of the Lease as the same would have been if made, done and performed by Lessee
instead of by Lender.
5.4 In the event of (a) any rejection of the Lease in any bankruptcy
proceeding, or (b) any other termination of the Lease, whether before or after foreclosure, then
Lessor agrees to enter into a new lease ("New Lease") of the Property with Lender or affiliate for
the remainder of the term of the Lease (including options to renew), which New Lease shall be
effective from the date of such rejection or such other termination, at the rent and upon the
same terms, covenants, conditions and restrictions and limitations contained in the Lease,
provided that:
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5A. f Lender shall make written request upon Lessor for such New
Lease within thirty (30) days after the date of such rejection or such other termination (subject to
the provisions of Section 5.6 below);
5.4.2 Lender shall pay or cause to be paid to Lessor, at the time of
execution and delivery of such New Lease, any and all sums which would at the time of such a
execution and delivery be due pursuant to the Lease but for such rejection or such other o
termination, and, in addition thereto, all reasonable costs, including attorneys' fees, which w
Lessor shall have incurred by reason of such rejection or such other termination and the
execution and delivery of the New Lease; 0
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5.4.3 Lender shall cure any default in the payment of rent or other m
covenants, terms and conditions of the Lease pursuant to the provisions of this Section 5.4; o
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N
5.4.4 As among Lessor, Lessee and Lender, the New Lease shall relate N
back to, and have the same record priority as of, the date of the original Lease.
5.5 The New Lease shall confirm ownership by Lessee of all improvements
then located on the Property subject to the provisions of the Lease.
5.6 If and so long as Lender is prevented, by any process or injunction issued
by any court or by reason of any action by any court having jurisdiction of any bankruptcy or
insolvency proceedings involving Lessee, from commencing or prosecuting foreclosure or other
appropriate proceedings in the nature thereof, or from exercising any other right or remedy
under or pursuant to this Agreement, it shall not be deemed for that reason to have failed to
commence such proceedings, or to have failed diligently to prosecute such proceedings or to
exercise such right or remedy, provided, however, that Lender shall use reasonable efforts to
contest and appeal the issuance of any such process or injunction and provided further that
Lender cures all monetary defaults of the Lease pending such foreclosure or exercise of rights
or remedies in accordance with this Article 5. If Lender performs the terms of this
subparagraph, then Lessor shall not terminate the Lease while such process or injunction is in
effect, or thereafter so long as Lender is proceeding with due diligence and is otherwise
complying with the provisions of this Article 5.
5.7 Nothing herein shall require Lender to commence or to continue any
foreclosure proceedings; provided however, that if Lender does not commence such
proceedings or if it commences and thereafter discontinues such proceedings, then Lessor may
exercise rights and remedies available to it under the Lease.
6. Prevailing Party Attorneys' Fees. In the event of any litigation arising out of any
dispute or controversy concerning this Agreement, the prevailing party shall be entitled to
recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees to be
fixed by the court. The "prevailing party" shall be the party who is entitled to recover its costs of
suit, whether or not the suit proceeds to final judgment, A party not entitled to recover its costs
shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the
amount of a judgment for purposes of deciding whether a party is entitled to its costs or
attorneys' fees. All references to "attorneys' fees" in this Agreement shall include without
limitation such amounts as 'may then be charged by the Lessor or Lender for legal services
furnished by attorneys in the employ of Lessor or Lender, at rates not exceeding those that
would be charged by outside attorneys for comparable services.
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7. Counterparts. This Agreement may be executed in any number of counterparts, and
each of the counterparts shall be considered an original and all counterparts shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, this Agreement is executed as of the date first set forth above
ATTEST:
CRYSTAL K. KINZEL, CLERK
By:
, DEPUTY CLERK
Approved as to form and legality:
Jennifer A. Belpedio
Assistant County Attorney
LESSOR:
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
WILLIAM L. MCDANIEL, JR.,, CHAIRMAN
LESSEE:
CC BSG NAPLES, LLC
By:
Name: Emily C. Decker
Title: Secretary
as
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EXHIBIT A
TRACTS A AND B, GOLDEN GATE- UNIT 1, ACCORDING TO THE MAP OR PLAT
THEREOF AS RECORDED IN PLAT BOOK 5, PAGES 60 TO 64, OF THE PUBLIC
RECORDS OF COLLIER COUNTY, FLORIDA.
d
a
TOGETHER WITH: c
w
TRACT A, GOLDEN GATE UNIT 8 PART 1, ACCORDING TO THE MAP OR PLAT c
THEREOF AS RECORDED IN PLAT BOOK 5, PAGES 147 TO 151, AND TRACT A, co
GOLDEN GATE- UNIT 8 PART 2, ACCORDING TO THE MAP OR PLAT THEREOF m
AS RECORDED IN PLAT BOOK 9, PAGES 107A TO 112, ALL OF THE PUBLIC o
RECORDS OF COLLIER COUNTY, FLORIDA. N
N
LESS AND EXCEPTING THEREFROM THE FOLLOWING DESCRIBED LANDS: 74
LESS 1: BEGIN AT A POINT, CORNER NUMBER 1, 354.50 FEET SOUTH AND
370.13 FEET EAST OF THE NORTHWEST CORNER OF TRACT "A" OF GOLDEN
GATE SUBDIVISION UNIT 8, PART 2, AS SHOWN ON A PLAT THEREOF
RECORDED IN PLAT BOOK 9,PAGES 107A-112, OF THE PUBLIC RECORDS OF
COLLIER COUNTY, FLORIDA; THENCE RUN N. 0 DEGREES 15' 04" W. 16.91 FEET
TO CORNER NUMBER 2 ON THE EAST LINE OF AN ACCESS EASEMENT;
THENCE RUN N. 12 DEGREES 51' 43" E. 31.94 FEET ALONG SAID EASEMENT TO
A POINT OF CURVATURE, THENCE RUN NORTHERLY ALONG THE ARC OF A
CURVE TO THE LEFT WHOSE RADIUS IS 577.88 FEET AND WHOSE CENTRAL
ANGLE IS 7 DEGREES 47' 03", FOR AN ARC DISTANCE OF 78.51 FEET TO
CORNER NUMBER 3; THENCE N. 89 DEGREES 44' 56" E. 89.59 FEET TO CORNER
NUMBER 4; THENCE S. 0 DEGREES 15' 04" E. 116.40 FEET TO CORNER NUMBER
5; THENCE S. 89 DEGREES 44' 56" W. 98.46 FEET TO CORNER NUMBER 6;
THENCE S. 50 DEGREES 09' 46" W. 14.20 FEET TO CORNER NUMBER 1 AND THE
POINT OF BEGINNING.
LESS 2: A PARCEL OF LAND IN COLLIER COUNTY, FLORIDA, MORE
PARTICULARLY DESCRIBED AS FOLLOWS AND BEING A PART OF THE PLAT
OF TRACT A OF GOLDEN GATE UNIT 8, PART 2, AS RECORDED IN PLAT BOOK
9, PAGE 107A, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHWEST CORNER OF TRACT A; THENCE RUNNING SOUTH A DISTANCE OF
649.27 FEET ALONG THE WEST BOUNDARY OF SAID TRACT A; THENCE
RUNNING EAST 336.31 FEET TO A POINT, SAID POINT BEING ALSO DESCRIBED
AS THE POINT OF BEGINNING; THENCE RUN NORTH 89' 54' 21" EAST, A
DISTANCE OF 331.15 FEET TO A POINT; THENCE RUN NORTH 0° 09' 03" EAST A
DISTANCE OF 75.04 FEET TO A POINT; THENCE RUN NORTH 23' 43' 43" EAST A
DISTANCE OF 104.18 FEET TO A POINT; THENCE RUN NORTH 47° 07' 42" WEST A
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1 6.F.6.a
DISTANCE OF 196.55 FEET TO A POINT; THENCE RUN SOUTH 890 44'56" WEST A
DISTANCE OF 184.50 FEET TO A POINT; THENCE RUN SOUTH 50' 09' 46" WEST A
DISTANCE OF 14.20 FEET TO A POINT; THENCE RUN SOUTH 11 ° 04' 09" WEST A
DISTANCE OF 113.36 FEET TO A POINT; THENCE RUN SOUTH 3° 45' 30" WEST A
DISTANCE OF 183.92 FEET TO THE POINT OF BEGINNING.
LESS 3: COMMENCING AT THE NORTHWEST CORNER OF TRACT 1 OF SAID
GOLDEN GATE UNIT 1, RUN S.00°31'32" E ALONG THE WEST LINE OF SAID
TRACT I FOR A DISTANCE OF 460.24 FEET TO A POINT OF CURVATURE;
THENCE 78.16 FEET ALONG THE ARC OF A CURVE TO THE LEFT HAVING A
RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 89°33'45", A CHORD DISTANCE
OF 70.44 FEET, BEARING S 45°24'29" E TO A POINT OF TANGENCY AND AN
INTERSECTION WITH THE SOUTH LINE OF SAID TRACT I; THENCE ALONG
SAID LINE N 89030'20" E FOR A DISTANCE OF 149.52 FEET TO THE POINT OF
BEGINNING;
THENCE CONTINUE N 89030'20" E FOR A DISTANCE OF 143.25 FEET;
THENCE LEAVING SAID LINE S 00"29'40" E FOR A DISTANCE OF 116.67 FEET,
THENCE S 89053'11" W FOR A DISTANCE OF 72.43 FEET;
THENCE N 86058'47" W FOR A DISTANCE OF 69.02 FEET;
THENCE N 02003'40" E FOR A DISTANCE OF 48.97 FEET;
THENCE N 14013'43" W FOR A DISTANCE OF 17.31 FEET;
THENCE N 00029'40" W FOR A DISTANCE OF 46.23 FEET TO THE POINT OF
BEGINNING,
LESS 4: (Deed 1131/1230); A PARCEL OF LAND IN COLLIER COUNTY, FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS AND BEING A PART OF THE
PLAT OF TRACT A OF GOLDEN GATE UNIT 8, PART 2, AS RECORDED IN PLAT
BOOK 9, PAGE 107A, OF THE PUBLIC RECORDS OF COLLIER COUNTY,
FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT
THE NORTHWEST CORNER OF TRACT A; THENCE RUNNING SOUTH A
DISTANCE OF 1334.27 FEET ALONG THE WEST BOUNDARY OF SAID TRACT A;
THENCE RUNNING EAST 336.31 FEET TO A POINT, SAID POINT BEING ALSO
DESCRIBED AS THE POINT OF BEGINNING; THENCE RUN NORTH 89' 54' 21"
EAST, A DISTANCE OF 331.15 FEET TO A POINT; THENCE RUN NORTH 00 09' 03"
EAST A DISTANCE OF 75.04 FEET TO A POINT; THENCE RUN NORTH 23' 43' 43"
EAST A DISTANCE OF 104.18 FEET TO A POINT; THENCE RUN NORTH 47' 07' 42"
WEST A DISTANCE OF 196.55 FEET TO A POINT; THENCE RUN SOUTH 89' 44'56"
WEST A DISTANCE OF 184.50 FEET TO A POINT; THENCE RUN SOUTH 50' 09' 46"
WEST A DISTANCE OF 14.20 FEET TO A POINT; THENCE RUN SOUTH 11 ° 04' 09"
WEST A DISTANCE OF 113.36 FEET TO A POINT; THENCE RUN SOUTH 3114513011
WEST A DISTANCE OF 183.92 FEET TO THE POINT OF BEGINNING.
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Ground Lessor Estoppel C."10
Page 9
Packet Pg. 696
1 6.F.6.b
This instrument prepared by, and after recording please
return to:
Kevin A. Denti, Esquire
Kevin A. Denti, P.A.
2180 Immokalee Road - Suite #316
Naples, Florida 34110
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE, made this day of January, 2022, between CC Q
BSG NAPLES, LLC, a Delaware limited liability company ("Borrower"), and FIRST c
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FOUNDATION BANK, a California state -chartered non-member bank ("Lender"). w
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WITNESSETH:
WHEREAS, Borrower is justly indebted to Lender in the maximum principal amount of 0°
TWELVE MILLION SEVEN HUNDRED SEVENTEEN THOUSAND ($12,717,000.00) M
DOLLARS, as evidenced by a certain Promissory Note ("Note") of even date herewith executed by N
Borrower and delivered to Lender, payable according to the terms therein provided and maturing on
January , 2027, subject to the potential renewal term thereof as described in the a
Construction Loan Agreement executed in conjunction herewith. CD
NOW THIS INDENTURE WITNESSETH, to secure the performance and observance by
the Borrower of all the covenants and conditions in the Note and in this Leasehold Mortgage and
Security Agreement (the "Mortgage"), and in order to charge the properties, interests, and rights
hereinafter described with such payment, performance, and observance, and for and in consideration
of the sum of TEN ($10.00) DOLLARS paid by the Lender to the Borrower on or before the
delivery of this Mortgage, and for other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Borrower does hereby grant, bargain, sell, alien, remise, release,
convey, assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant, and confirm unto
the Lender, its successors and assigns forever:
THE MORTGAGED PROPERTY
All of Borrower's leasehold interest in and to the following:
ALL THAT CERTAIN piece, parcel, or tract of land in which the Borrower has a
leasehold interest situate in the County of Collier and State of Florida (hereinafter called the
"Land"), more particularly described in Exhibit "A" attached hereto and made a part hereof,
TOGETHER WITH all of Borrower's leasehold interest in and to all buildings, structures,
and improvements of every nature whatsoever now or hereafter situated on the Land, and all
fixtures, now or hereafter owned by the Borrower and located in, on, or used or intended to be used
in connection with or with the operation of the Land, buildings, structures or other improvements,
including all extensions, additions, improvements, betterments, renewals, and replacements to any
of the foregoing;
Packet Pg. 697
1 6.F.6.b
TOGETHER WITH all of Borrower's interest in and to all easements, rights of way, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights
and powers, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances whatsoever, in any way belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired by Borrower, and the reversion and reversions, remainder
and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, at law as well as in equity, of Borrower, if any, of, in
and to the same, including but not limited to all judgments, awards of damages and settlements
hereafter made resulting from condemnation proceedings or the taking of the Land or any part
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thereof under the power of eminent domain, the alteration of the grade of any street, or for any
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damage (whether caused by such taking or otherwise) to the Land or any part thereof, or to any
rights appurtenant thereto, and all proceeds of any sales or other disposition of the Land or any part
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thereof,
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TOGETHER WITH all rents, royalties, issues, profits, revenue, income and other benefits
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from Borrower's leasehold interest in the Land to be applied against the indebtedness secured
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hereby, providing however, that permission is hereby given to Borrower, so long as no default has
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occurred hereunder, to collect, receive, take, use and enjoy such rents, royalties, issues, profits,
revenue, income, licenses, foreclosures, concessions and other benefits as they become due and
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payable, but not in advance of the due date thereof. The foregoing assignment shall be fully
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operative without any further action on the part of either party, and specifically Lender shall be
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entitled, at its option, upon the occurrence of a default hereunder, to all rents, royalties, issues,
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profits, revenue, income and other benefits from Borrower's leasehold interest in the Land, whether
or not Lender takes possession of the Land. Upon any such notice of default hereunder, the
permission hereby given to Borrower to collect such rents, royalties, issues, profits, revenue, income
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and other benefits from Borrower's leasehold interest in the Land shall terminate, but such
permission shall be automatically reinstated upon a cure of the default without the necessity of
Borrower obtaining Lender's consent thereto. Exercise of rights under this paragraph, and the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to such
indebtedness, shall not cure or waive any default or notice of default hereunder or invalidate any act
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done pursuant hereto, but shall be cumulative and in addition to all other rights and remedies of
Lender;
TOGETHER WITH all right, title and interest of Borrower in and to any and all subleases
now or hereafter on or affecting the Land, together with all security therefor and all monies payable
thereunder subject, however, to the conditional permission hereinabove given to Borrower to collect
the rentals under such subleases. The foregoing assignment of any sublease shall not be deemed to
impose upon Lender any of the obligations or duties of Borrower provided in any such sublease,
and Borrower agrees to fully perform all obligations of the lessor under all such subleases. Upon
Lender's request, Borrower agrees to send to Lender a list of all subleases covered by the foregoing
assignment and as any such sublease shall expire or terminate or as any new sublease shall be made,
Borrower shall so notify Lender in order that at all times Lender shall have a current list of all
subleases affecting the Land. Lender shall have the right, at any time and from time to time, to
notify any lessee of the rights of Lender as provided by this paragraph. From time to time, upon
request of Lender, Borrower shall specifically assign to Lender as additional security hereunder, by
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 2 of 25
Packet Pg. 698
1 6.F.6.b
an assignment in writing in form approved by Lender, all right, title and interest of Borrower in and
to any and all subleases now or hereafter on or affecting the Land, together with all security therefor
and all monies payable thereunder, subject to the conditional permission hereinabove given to
Borrower to collect the rentals under any such sublease. Borrower shall also execute and deliver to
Lender any notification, financing statement, or other document reasonably required by Lender to
perfect the foregoing assignment as to any such sublease;
This instrument constitutes an absolute and present assignment of the rents, royalties, issues,
profits, revenue, income, and other benefits from Borrower's leasehold interest in the Land, subject,
however, to the conditional permission given to Borrower to collect, receive, take, use and enjoy the
same as provided hereinabove; provided, further, that the existence or exercise of such right of
Borrower shall not operate to subordinate this assignment to any subsequent assignment, in whole
or in part, by Borrower, and any such subsequent assignment by Borrower shall be subject to the
rights of Lender hereunder;
TOGETHER WITH a security interest in (i) all of Borrower's interest in and to all
property, affixed to or located on the Land, which, to the fullest extent permitted by law, shall be
deemed fixtures and a part of the real property and which are owned by Borrower, (ii) all materials
delivered to the Land for use in any construction being conducted thereon and which are owned by
Borrower, (iii) all contract rights, including construction contracts, service contracts, advertising
contracts, general intangibles, actions and right of action, and all rights to insurance proceeds
associated with Borrower's leasehold interest in the Land, and (iv) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of any of the foregoing. Borrower
(Debtor) hereby grants to Lender (Creditor) a security interest in all fixtures, and rights in action
described herein. This Mortgage is a self -operative security agreement with respect to such
property, but Borrower agrees to execute and deliver on demand such other security agreements,
financing statements and other instruments as Lender may request in order to perfect its security
interest or to impose the lien hereof more specifically upon any of such property. Lender shall have
all the rights and remedies in addition to those specified herein of a secured parry under the Uniform
Commercial Code.
Borrower's leasehold interest in the Land, together with any and all of the aforedescribed
additional property and rights, now or hereafter acquired by Borrower, shall sometimes hereinafter
be referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD Borrower's leasehold interest in the Land and all parts thereof
unto the Lender, its successors and assigns, to its own proper uses and benefit forever, subject,
however, to the terms and conditions of the Lease entered into by and between Collier County and
Borrower, the rights of the landlord thereunder, and the terms and conditions contained herein.
PROVIDED, HOWEVER, that these presents are upon the condition that, if the Borrower
shall pay or cause to be paid to the Lender the principal and interest payable in respect to the Note,
at the times and in the manner stipulated therein and herein, all without any deduction or credit for
taxes or other similar charges paid by the Borrower, and shall keep, perform and observe all and
singular the covenants and promises in the Note, and any renewal, extension or modification
thereof, and in this Mortgage expressed to be kept, performed and observed by and on the part of
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 3 of 25
Packet Pg. 699
1 6.F.6.b
the Borrower, all without fraud or delay then this Mortgage, and all the properties, interest and
rights hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned, transferred,
mortgaged, hypothecated, pledged, delivered, set over, warranted and confirmed, shall cease,
terminate and be void, but shall otherwise remain in full force and effect.
AND, Borrower covenants and agrees with Lender as follows:
ARTICLE ONE
PROCEDURAL PROVISIONS
1.01 Grace Period for Monetary Default. Notwithstanding any provisions to the contrary
contained herein or in any other loan documents executed in conjunction herewith,
Borrower shall have a ten (10) day grace period after written notice to correct any monetary
default. However, any late payment of principal or interest shall be accompanied by the late
payment charge specified in the Note to cure the default.
1.02 Grace Period for Non -Monetary Default. Notwithstanding any provisions to the contrary
contained herein or in any other loan documents executed in conjunction herewith,
Borrower shall have a thirty (30) day grace period after written notice to correct any non -
monetary default (including Borrower's failure to provide financial documentation
required by the Construction Loan Agreement executed in conjunction herewith), or if
such default cannot reasonably be corrected within such time frame, Borrower shall initiate
such curative steps as are appropriate under the circumstances within such thirty (30) day
period and shall pursue same to a conclusion reasonably satisfactory to Lender within a
reasonable time.
1.03 Conduct of Lender. Lender agrees to and shall act in a commercially reasonable manner in
enforcing its rights hereunder.
1.04 Conduct of Borrower. Borrower shall at all times during the term of this Mortgage
conduct itself in a reasonable and cooperative manner in the discharge of its obligations
herein.
1.05 Successors and Assigns Included in Parties. Whenever in this Mortgage one of the
parties hereto is named or referred to, the successors and assigns of such party shall be
included, and all covenants and agreements contained in this Mortgage by or on behalf of
the Borrower or by or on behalf of Lender shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed or not. Whenever the singular or
plural number or masculine, feminine or neuter gender is used herein, it shall equally
include the other.
1.06 Notices.
a. Borrower. Any notice, demand, or other instrument authorized by this Mortgage to
be served on the Borrower may be served on the Borrower at:
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 4 of 25
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Packet Pg. 700
1 6.F.6.b
CC BSG NAPLES, LLC
3030 LBJ Freeway — Suite #600
Dallas, Texas 75234
Attn: David Pillsbury, President
or at such other address as may have been furnished in writing to the Lender by the
Borrower,
with a copy to:
CC BSG NAPLES, LLC
3030 LBJ Freeway — Suite #400
Dallas, Texas 75234
Attn: General Counsel
If Lender is specifically herein required to give any notice to Borrower, such notice
shall be in writing and communicated to Borrower: (i) in person; (ii) by certified
U.S. Mail, return receipt requested; or (iii) by a recognized overnight courier service
with a requirement for signature by the recipient. Written notices shall be deemed
effective upon personal delivery, the earlier of three (3) business days after mailing
by certified mail or upon receipt by the recipient, or one (1) business day after being
sent by overnight courier.
b. Lender. Any notice, demand, or other instrument to be served on the Lender may be
served on the Lender in the manner provided above at its offices located at:
With Copy To:
FIRST FOUNDATION BANK
3560 Kraft Road
Naples, Florida 34105
Attn: Scott D. Koenig, Senior Vice President
Kevin A. Denti, Esquire
KEVIN A. DENTI, P.A.
2180 Immokalee Road - Suite #316
Naples, Florida 34110
or at such other address as may have been furnished in writing to the Borrower by
the Lender.
1.07 Headings. The headings of the articles, sections, paragraphs, and subdivisions of this
Mortgage are for convenience or reference only, are not to be considered a part hereof, and
shall not limit or otherwise affect any of the terms hereof.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 5 of 25
Packet Pg. 701
1 6.F.6.b
1.08 Invalid Provisions to Affect No Others. In case any one or more of the covenants,
agreements, terms, or provisions contained in this Mortgage or in the Note shall be invalid,
illegal or unenforceable in any respect, the validity of the remaining covenants, agreements,
terms, or provisions contained herein and in the Note shall be in no way affected,
prejudiced, or disturbed thereby.
1.09 Modifications. It is understood and agreed that the Lender may at any time, without notice
to any person, grant to the Borrower any modification of any kind or nature whatsoever, or
allow any change or changes, substitution or substitutions of any of the property described
in this Mortgage or any other collateral which may be held by the Lender without in any
manner affecting the liability of the Borrower, any endorsers or guarantors of the a
indebtedness hereby secured, or any other person for the payment of said indebtedness,
together with any other sums which may be due and payable to the Lender, and also without
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in any manner affecting or impairing the lien of this Mortgage upon the remainder of the
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Land and other collateral which is not changed or substituted; and it is also understood and
agreed that the Lender may at any time, without notice to any person, release any portion of
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the property described in this Mortgage or any other collateral, or any portion of any other
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collateral which may be held as security for the payment of the indebtedness hereby secured,
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either with or without any consideration of such release or releases, without in any manner
affecting the liability of the Borrower, all endorsers or guarantors, if any, and all other
persons who are or shall be liable for the payment of said indebtedness, and without E
affecting, disturbing or impairing in any manner whatsoever the validity and priority of the
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lien of this Mortgage for the full amount of the indebtedness remaining unpaid, together
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with all interest and advances which shall become payable, upon the entire remainder of the
Land which is unreleased, and without in any manner affecting or impairing to any extent
whatsoever any and all other collateral security which may be held by the Lender. It is
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distinctly understood and agreed by the Borrower and the Lender that any release or releases
may be made by the Lender without the consent or approval of any other person or persons
whomsoever.
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1.10 Uniform Commercial Code. The parties agree that this Mortgage is a security agreement
under the Uniform Commercial Code for the purpose of creating a lien on the personal
property and fixtures described herein.
1.11 No Transfer. It is understood and agreed by Borrower that as part of the inducement to
Lender to make the loan evidenced by the Note, Lender has considered and relied on the
credit worthiness and reliability of Borrower. Borrower covenants and agrees not to sell,
convey, transfer, or further encumber any interest in or any part of Borrower's leasehold
interest in the Land without the prior written consent of the Lender, and any such sale,
conveyance, transfer, or encumbrance made without Lender's prior written consent shall
constitute an event of default hereunder. An assignment of beneficial interest in any land
trust shall constitute a transfer pursuant to the provisions of this paragraph. If any person
should obtain an interest in all or any part of Borrower's leasehold interest in the Land
pursuant to the execution or enforcement of any lien, security interest or other right, whether
superior, equal or subordinate to this Mortgage or the lien hereof, such event shall be
deemed to be a transfer by Borrower and an Event of Default hereunder.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 6 of 25
Packet Pg. 702
1 6.F.6.b
1.12 Time is of the Essence. It is specifically agreed that time is of the essence of this Mortgage
and that no waiver of any obligation hereunder or of the obligation secured hereby shall at
any time thereafter be held to be a waiver of the terms hereof or of the instrument secured
hereby.
1.13 Attorneys' Fees and Expenses. Wherever provision is made herein for payment for
reasonable attorneys' or counsel's fees or expenses incurred by the Lender, said provision
shall include, but not be limited to, reasonable attorneys' or counsel's fees or expenses
incurred in any and all judicial, bankruptcy, reorganization, administrative, or other
proceedings, including appellate proceedings, whether such proceedings arise before or after
a
entry of a final judgment.
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1.14 Maximum Rate of Interest. Nothing herein contained, nor in the Note secured hereby or
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any instrument or transaction related thereto, shall be construed or so operate as to require
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the Borrower, or any person liable for the payment of the loan made pursuant to said Note,
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to pay interest in an amount or at a rate greater than the maximum allowed by law. Should
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any interest or other charges in the nature of the interest paid by the Borrower, or any parties
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liable for the payment of the loan made pursuant to said Note, result in the computation or
earning of interest in excess of the maximum rate of interest allowed by applicable law, then
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any and all such excess shall be and the same is hereby waived by the holder hereof, and all
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such excess shall be automatically credited against and in reduction of the principal balance,
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and any portion of said excess which exceeds the principal balance shall be paid by the
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holder hereof to the Borrower, or any parties liable for the payment of the loan made
pursuant to said Note, it being the intent of the parties hereto that under no circumstances
shall the Borrower or any parties liable for the payment of the loan hereunder be required to
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pay interest in excess of the maximum rate allowed by law.
1.15 Florida Contract. This Mortgage is made by Borrower and accepted by Lender in the
State of Florida, with reference to the laws of such State, and shall be construed, interpreted,
enforced and governed by and in accordance with such laws (excluding the principles
thereof governing conflicts of law) and Federal Law in the event (and only in the event)
Federal Law pre-empts State Law.
1.16 Default Rate. The default rate of interest shall be applicable subsequent to an Event of
Default (hereinafter defined) and where elsewhere provided for in this Mortgage. The
default rate shall be the interest rate specified in the Note as the interest rate payable after
maturity or default.
1.17 Reappraisal Provision. Notwithstanding any term or provision hereof to the contrary, if at
any time (not to exceed once in any twelve (12) month period) and for any reason the
Lender reasonably determines that the value of Borrower's leasehold interest in the Land
may have declined to the extent that the loan -to -value ratio exceeds fifty percent (50%),
Lender shall be authorized to obtain a current appraisal of the Mortgaged Property at
Borrower's expense. Borrower shall cooperate fully with any such appraiser and provide all
such documents and information as such appraiser may request in connection with such
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 7 of 25
Packet Pg. 703
1 6.F.6.b
appraiser's performance and preparation of such appraisal. Borrower's failure to promptly
and fully comply with Lender's requirements under this paragraph shall constitute an Event
of Default under this Mortgage and the other loan documents. Should any appraisal
obtained by Lender pursuant to this provision or otherwise reflect that the permitted loan -to -
value ratio set forth herein has been exceeded, the same shall constitute an Event of Default
hereunder unless Borrower shall, within thirty (30) days of Borrower's receipt of written
notice thereof from Lender, repay to Lender such portion of the outstanding principal sum
due under the Note so as to reduce the applicable loan -to -value ratio of the loan to no greater
than fifty percent (50%).
ARTICLE TWO
PARTICULAR COVENANTS OF BORROWER
2.01 Performance of Note and Mortgage. The Borrower will perform, observe and comply
with all the provisions hereof and of the Note secured hereby, and Borrower will promptly
pay to the Lender the sum of money expressed in the Note with interest thereon and all other
sums required to be paid pursuant to the provisions of this Mortgage on the days when
payment shall become due, all without deduction or credit for taxes or other similar charges,
time being of the essence for such payments.
2.02 Warranty of Title. The Borrower covenants that it has a valid leasehold interest in and to
all property hereby mortgaged, has full power and lawful right to convey and mortgage the
same in the manner and form aforesaid, and the Borrower does hereby fully warrant the title
to Borrower's leasehold interest in the Land against the lawful claim of all persons
whomsoever, other than such matters as are set forth in Schedule B-II of the title insurance
commitment issued in conjunction with this transaction and approved by Lender.
2.03 Taxes, Liens, and Utility Charges.
(a) The Borrower covenants and agrees to deliver to the Lender, on or before March 31
of each year, tax receipts evidencing the payment of all lawfully imposed taxes upon
the Land for the current calendar year; to deliver to the Lender receipts evidencing
the payment of all liens, levies, and assessments for public improvements within
thirty (30) days prior to such amounts becoming delinquent; and to pay or discharge
within thirty (30) days prior to such amounts becoming delinquent any and all
governmental levies that may be made on the Land, on this Mortgage or the Note or
in any other way resulting from the mortgage indebtedness secured by this
Mortgage.
(b) The Borrower shall not permit any construction, laborer's, statutory or other lien to
be created or to remain outstanding upon any of Borrower's leasehold interest in the
Land and shall cause same to be released and discharged, or transferred to bond as
permitted by law, within thirty (30) days after the same is recorded in the applicable
public records.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 8 of 25
Packet Pg. 704
1 6.F.6.b
(c) If required by the Lender after the occurrence of an event of default hereunder,
Borrower shall pay to Lender on the date of each regular installment of interest as
required by the Note secured hereby (or on the first day of each month if the interest
payments are due other than monthly), until the Note is fully paid, an amount equal
to one -twelfth (1/12) or such proportionate share of the yearly taxes and assessments
as estimated by the Lender to be sufficient to enable the Lender to pay at least thirty
(30) days before they become due, all taxes, assessments and other similar charges
against the Land or any part thereof ("Taxes"). Such added payment shall not be,
nor be deemed to be, trust funds, but may be commingled with the general funds
of the Lender, and no interest shall be payable in respect thereof. Upon demand
of the Lender, the Borrower agrees to deliver to the Lender such additional
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monies as are required to make up any deficiencies in the amounts necessary to
enable the Lender to pay such Taxes. In the event of a default by the Borrower in
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the performance of any of the terms, covenants, and conditions in this Mortgage
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or the Note secured hereby, the Lender may apply to the reduction of the principal
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sum, in such manner as the Lender shall determine, any amount under this
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paragraph remaining to the Borrower's credit after the payment by Lender of all
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Taxes due and owing at such time.
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(d) The Borrower will pay when due and will not suffer to remain outstanding any
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charges for utilities, whether public or private, with respect to the Land.
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2.04 Lender Liability Claims. Borrower covenants and agrees with Lender that should
Borrower, at any time, become aware of any act, occurrence, or omission on the part of
Lender, its employees, agents or attorneys, which Borrower believes or has reason to
suspect would give rise to a claim by Borrower for bad faith, negligence, fraud or any form
of lender liability against Lender, Borrower will advise Lender, in writing, of such claim or
potential claim within ninety (90) days of discovery, or Borrower shall be deemed to have
waived the claim and be forever barred from asserting that claim or a related claim against
Lender. The purpose of this provision is to promptly advise Lender of any potential claim
and to allow Lender to immediately investigate, and if necessary, remedy the alleged
violation. Borrower agrees that its failure to notify Lender within a reasonable period of
time not to exceed ninety (90) days shall be a complete bar to the pursuit of the claim
against Lender, its employees, agents, or attorneys.
2.05 Insurance.
(a) Borrower shall at its sole expense obtain commercial general liability insurance in
such amounts and for such periods as Lender may reasonably require during the life
of the Mortgage naming Lender as certificate holder and insured mortgagee.
Borrower shall pay promptly, when due, any premiums on the insurance policies and
renewals.
(b) If the Land is located in a special flood hazard area, Borrower shall at its sole
expense obtain and maintain flood insurance in the maximum amount available
under applicable law during the life of the Mortgage naming Lender as certificate
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 9 of 25
Packet Pg. 705
1 6.F.6.b
holder and insured mortgagee. Borrower shall pay promptly, when due, any
premiums on such insurance policy and all renewals thereof. Notwithstanding
anything contained herein to the contrary, the words "personal property" shall
mean all equipment, fixtures, and other articles of personal property now or
hereafter owned by Borrower, and now or hereafter attached or affixed to the
Mortgaged Property, together with all accessories, parts, and additions to, all
replacements of, and all substitutions for, any of such personal property, and
together with all proceeds (including without limitation all insurance proceeds and
refunds of premiums) from any sale or other disposition of such personal
property. However, if the Mortgaged Property is or will be located in an area
designated by the Administrator of the Federal Emergency Management Agency
a
as a special flood hazard area, the personal property encumbered hereby shall be
limited to only those items specifically covered (currently or hereafter) by
w
Coverage A of the standard flood insurance policy issued in accordance with the
c
National Flood Insurance Program or under equivalent coverage similarly issued
o
by a private insurer to satisfy the National Flood Insurance Act (as amended).
m
(c) Borrower shall keep any improvements located upon the Land insured against all
0
N
risks with coverage of the type now known as "All Risk Replacement Cost
El
Insurance" which insures against damage caused by rising water, wind, fire and
c
other hazards, casualties, and contingencies, for the full insurable value of the
E
improvements, on a replacement basis, for such periods as may be required by
L
Lender, and to pay promptly when due any premiums on such insurance policies or
a'
Q
renewals. All insurance shall be carried on companies approved by Lender as to
financial standing according to such guidelines as may be adopted from time to time
by Lender, and the policies and renewals thereof shall be held by Lender and shall
�
have attached thereto loss payable clauses in favor of and in a form acceptable to the
Lender. At least thirty (30) days prior to the expiration date of all such policies,
evidence of renewal or replacement thereof satisfactory to the Lender shall be
delivered to the Lender. The Borrower shall deliver to the Lender receipts
evidencing the payment of all such insurance policies and renewals. In the event of
�°
loss, Borrower will give immediate notice by mail to Lender, and Lender may make
proof of loss if not made promptly by Borrower, and each insurance company
concerned is hereby authorized and directed to make payment for such loss directly
to Lender instead of to Borrower and Lender jointly, and the insurance proceeds or
_J
any part thereof may be applied by Lender at its option to the restoration or repair of
the property damage. In the event of foreclosure of this Mortgage or other transfer
E
of interest in and to the Land in extinguishment of the indebtedness secured hereby,
all right, title, and interest of the Borrower in and to any insurance policies then in
a
force shall pass to the purchaser or grantee.
(d) If required by the Lender after the occurrence of an event of default hereunder,
Borrower shall pay to Lender on the date of each regular installment of interest as
required by the Note secured hereby (or on the first day of each month if the interest
payments are due other than monthly), until the Note is fully paid, an amount equal
to one -twelfth (1/12) or such proportionate share of the yearly premium for
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 10 of 25
Packet Pg. 706
1 6.F.6.b
insurance as shall enable Lender to pay for the insurance premiums when due. Such
added payments shall not be nor be deemed to be, trust funds, but may be
commingled with the general funds of the Lender, and no interest shall be payable
with respect thereof. Upon demand of the Lender, the Borrower agrees to deliver to
the Lender such additional monies as are necessary to make up any deficiencies in
the amounts necessary to enable the Lender to pay such insurance premiums when
due.
2.06 Condemnation. If all or any part of the Land shall be damaged or taken through
condemnation (which term when used in this Mortgage shall include any damage or taking Q
by any governmental authority, and any transfer by private sale in lieu thereof, either a
temporarily or permanently), the entire indebtedness secured hereby shall at the option of °
the Lender become immediately due and payable. The Lender shall be entitled to all w
compensation, awards, and any other payments of relief therefor which would otherwise be c
payable to Borrower, and is hereby authorized, at its option to commence, appear in and o
prosecute, in its own or the Borrower's name, any action or proceeding relating to any m
condemnation, and to settle or compromise any claim in connection therewith. All such c
compensation, awards, damages, claims, rights of action and proceeds and the right thereto N
are hereby assigned by the Borrower to the Lender, who after deducting therefrom all its
expenses including attorneys' fees, may release any monies so received by it without c
affecting the lien of this Mortgage or may apply the same in such manner as the Lender shall E
determine to the reduction of the sums secured hereby and to any prepayment charge herein CD
provided, and any balance of such monies then remaining shall be paid to the Borrower. Q
The Borrower agrees to execute such further assignments of any compensations, awards,
damages, claims, rights, or proceeds as the Lender may require.
2.07 Care of Property.
(a) The Borrower shall preserve and maintain the Land in good condition and repair.
Borrower shall not remove or demolish any building hereafter existing on the Land
without the prior written consent of the Lender. Borrower shall not permit, commit,
or suffer any waste, impairment, or deterioration of the Land or of any part thereof,
and will not take any action which will increase the risk of fire or other hazard to the
Land or to any part thereof.
(b) Except as otherwise provided herein, no buildings, fixtures, personal property, or
other part of the Land shall be removed, demolished or substantially altered without
the prior written consent of the Lender. The Borrower may sell or otherwise dispose
of, free from the lien of this Mortgage, furniture, furnishings, equipment, tools,
appliances, machinery, fixtures or appurtenances, subject to the lien hereof, which
may become worn out, undesirable, obsolete, disused or unnecessary for use in the
operation of the Land, not exceeding in value at the time of disposition thereof
FIFTY THOUSAND ($50,000.00) DOLLARS for any single transaction, or a total
of ONE HUNDRED THOUSAND ($100,000.00) DOLLARS in any one year, upon
replacing the same by, or substituting for the same, other furniture, equipment, tools,
appliances, machinery, fixtures or appurtenances not necessarily of the same
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 11 of 25
Packet Pg. 707
1 6.F.6.b
character, but of at least equal value to the Borrower and costing not less than the
amount realized from the property sold or otherwise disposed of, which shall
forthwith become, without further action, subject to the lien of this Mortgage.
(c) If the Land or any part thereof is damaged by fire or any other cause, the Borrower
will give immediate written notice of same to Lender.
(d) The Lender is hereby authorized to enter upon and to inspect the Land at any time
during normal business hours during the life of this Mortgage.
(e) The Borrower shall promptly comply with all present and future laws, ordinances,
rules, and regulations of any governmental authority affecting the Land or any part
thereof.
(f) If all or any part of the Land shall be damaged by fire or other casualty, the
Borrower will promptly restore the Land to the equivalent of its original condition
regardless of whether or not there shall be any insurance proceeds therefor. The
Borrower shall be permitted a reasonable time to settle claims with the Borrower's
insurers, but in all such events restoration shall be begun no less than ninety (90)
days after the occurrence of such fire or other casualty. If a part of the Land shall be
physically damaged through condemnation, the Borrower will promptly restore,
repair, or alter the remaining property in a manner satisfactory to the Lender to the
extent that Borrower receives a compensation award for said condemnation which is
not utilized by Lender pursuant to Paragraph 2.06 of this Mortgage.
(g) If any work required to be performed under this paragraph shall involve an estimated
expenditure of more than ONE HUNDRED THOUSAND ($100,000.00)
DOLLARS, no such work shall be undertaken until plans and specifications therefor
have been submitted to and approved by the Lender.
2.08 Further Assurances. Borrower will make, execute, and deliver to the Lender and, where
appropriate, shall cause to be recorded and/or filed and from time to time thereafter to be re-
recorded and/or refiled at such time and in such offices and places as shall be deemed
desirable by the Lender, and any and all such further mortgages, instruments of further
assurance, certificates, and other documents as may, at the opinion of the Lender, be
necessary or desirable in order to effectuate, complete, enlarge or perfect, or to continue and
preserve:
(a) The obligation of the Borrower under this Mortgage and the Note secured hereby;
and
(b) The lien of this Mortgage as a lien upon Borrower's leasehold interest in the Land.
2.09 After -Acquired Property. The lien of this Mortgage will automatically attach, without
further act, to all of Borrower's interest in and to all after -acquired property attached to or
used in the operation of the Land.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 12 of 25
as
Packet Pg. 708
1 6.F.6.b
2.10 Leases Affectine Land. The Borrower will comply with and observe its obligations as
landlord under all subleases affecting the Land or any part thereof. Borrower will furnish
Lender with a copy of Borrower's standard form sublease prior to undertaking any leasing
activities with respect to the Property. The Lender specifically reserves the right to approve
all proposed sublessees (other than The First Tee of Naples/Collier which shall constitute a
permitted sublessee hereunder) as to financial capabilities. Unless otherwise herein
specifically provided, all leases shall be inferior and subordinate in all respects to the lien of
this Mortgage, and the terms of each lease shall so provide. Borrower will not, without the
express written consent of the Lender, modify, surrender or terminate, either orally or in
Q
writing, any lease hereafter created upon the Land, nor will the Borrower permit an
a
assignment or sublease without the express written consent of the Lender. Borrower will
°
not accept payment of rent more than two (2) months in advance without the express written
w
consent of the Lender. If requested by the Lender, the Borrower will specifically assign to
0
the Lender as additional security any and all such leases hereafter created, including, without
o
limitation, all rents, royalties, issues, and profits of the premises from time to time accruing,
m
the parties hereto acknowledging that this Mortgage constitutes a general assignment of any
c
and all such future leases.
N
N
2.11 Expenses. Borrower shall pay or reimburse Lender for all reasonable costs, charges and
c
expenses, including reasonable attorneys' fees, including appellate proceedings, and
E
disbursements, and costs of abstracts of title incurred or paid by Lender in any action,
L
proceeding or dispute in which Lender is made a party or appears as a parry plaintiff or parry
Q
defendant because of the failure of the Borrower promptly and fully to perform and comply
with all conditions and covenants of this Mortgage and the Note secured hereby, including
but not limited to, the foreclosure of this Mortgage, condemnation of all or part of the Land,
co
or any action to protect the security thereof. All costs, charges and expenses so incurred by
Lender shall become due and payable whether or not there be notice, demand, attempt to
collect, or suit pending. The amounts so paid by Lender shall be secured by the lien of this
Mortgage.
V-
2.12 Lender's Performance of Defaults. If the Borrower shall default in the payment of any tax
assessment, encumbrance or other imposition, in its obligation to furnish insurance
hereunder or performance or observance of any other covenant, condition or term in this
Mortgage, the Lender, may, at its option, without waiving or affecting its option to foreclose
or any other rights hereunder, perform or observe the same, and all payments made or costs
or expenses incurred by the Lender in connection therewith, shall be secured hereby and
shall be immediately repaid by the Borrower to the Lender, with interest thereon at the
Default Rate as hereinafter defined. Nothing contained herein shall be construed as
requiring Lender to advance or expend monies for any purposes mentioned in this
paragraph. The Lender is hereby empowered to enter and to authorize others to enter upon
the Land or any part thereof for the purpose of performing or observing any such defaulted
covenant, condition, or term without thereby becoming liable to the Borrower or any person
in possession holding under the Borrower.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 13 of 25
Packet Pg. 709
1 6.F.6.b
2.13 Estoppel Affidavits. The Borrower, within fifteen (15) days after written request from the
Lender, shall furnish a written statement, duly acknowledged, setting forth the unpaid
principal of, and interest on, the Note and whether or not any offsets or defenses exist
against such principal and interest.
2.14 Proper Use, Care and Maintenance.
(a) The Borrower hereby represents and warrants that to the best of the Borrower's
knowledge, after appropriate investigation, the Land is not currently used, nor has it
been used in the past, by the Borrower, prior owners, tenants, operators, or any other
persons or organizations, in a manner that violates any applicable federal, state or
a
local law, statute, ordinance or regulation, court or administrative order or decree, or
any governmental or quasi -governmental authority or agency or any private
w
agreement pertaining to environmental matters or hazardous substances (hereinafter
c
collectively called `Environmental Requirements"), and there are to Borrower's
o
knowledge no conditions existing at, or materials currently located on, the Land that
LM
m
would violate any Environmental Requirements or give rise to liability for hazardous
c
substances (including, without limitation, solid wastes, toxic materials, radon,
N
asbestos, and oil), or that would require special handling in collection, storage,
treatment or disposal. The Borrower will not place or permit to be placed on the
c
Land any such materials or use or permit the use of the Land in a manner that would
E
violate any applicable Environmental Requirements or give rise to liability for
CD
hazardous substances. The Borrower further covenants and agrees that it will not
Q
use or permit the use or operation of the Land in a manner that, in the determination
of the Federal Environmental Protection Agency or the Florida Department of
Environmental Protection, would constitute a dangerous, unhealthy or noxious use
co
thereof. Further, if at any time it is determined that the operation or use of the Land
violates any applicable environmental protection requirements or that there are
materials located on the Land that, under any Environmental Requirements, require
special handling in collection, storage, treatment or disposal, or would create a
dangerous, unhealthy or noxious condition thereon, then the Borrower shall, within
�°
thirty (30) days after written notice thereof, commence to take or cause to be taken,
at its sole expense, such actions as may be necessary to comply with all
environmental protection requirements and to complete such actions as soon as
reasonably possible. The Borrower will not permit any federal, state, or local
environmental or hazardous waste lien to be levied against the Land, regardless of
whether that lien is subordinate to the lien of this Mortgage. Failure of the Borrower
E
to comply with all environmental protection requirements shall be a default under
this Mortgage.
2
(b) To enforce the Borrower's obligations under section (a) above and confirm its
compliance with the same, if Lender has a reasonable basis to believe that there has
been a change in the environmental condition of the Mortgaged Property which
violates the Environmental Requirements, the Lender may, at its option, but not
more frequently than once in any twelve (12) month period, conduct or cause to be
conducted an environmental audit (which may include, without limitation, test
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 14 of 25
Packet Pg. 710
1 6.F.6.b
borings of the ground and chemical analyses of air, water and waste discharges) of
the Land or portions thereof, for which audits the Borrower shall be charged the
actual costs thereof. The Borrower shall pay such costs on written direction from
Lender and upon failure to pay same, such costs shall be added to the indebtedness
secured hereby and shall be secured by this Mortgage.
(c) The Borrower further represents and warrants that it has received no notices from
any governmental or quasi -governmental authorities or agencies with respect to
environmental protection requirements or environmental issues affecting the Land
and has no knowledge of such notices sent to prior owners of the Land, tenants,
operators, or any other persons or organizations. The Borrower shall send to the a
Lender copies of all notices, letters, or other communications respecting the Land °
that are either received by the Borrower from any governmental or quasi-
w
governmental authority or agency concerning Environmental Requirements or
c
environmental issues affecting the Land or sent by the Borrower to any such
co
authority or agency regarding the same, within five (5) days after such receipt or
m
transmittal by the Borrower.
c
M
N
(d) If the Lender has a reasonable basis to believe that the Land is being used or
operated in a manner, or that a condition exists on the Land, which would violate
c
any environmental protection requirements or which would constitute a dangerous,
E
E
unhealthy or noxious use thereof or condition thereon or which would give rise to
L
potential liability for hazardous substances, the Lender may, but shall not be
Q
obligated to, perform or cause to be performed any remedial action, including but
not limited to removal and clean-up, which the Lender has a reasonable basis to
believe is necessary or prudent under the circumstances, and the Lender may make
co
advances or payments towards performance or satisfaction of such environmental
protection requirements, but shall be under no obligation to do so. The Borrower
shall execute and deliver, promptly after request, such instruments as the Lender
may deem useful or required to permit the Lender to take any such action. All sums
so advanced or paid and all expenses incurred by Lender, including, without
°
limitation, reasonable attorneys' fees, fines or other penalty payments and all sums
advanced or paid in connection with any judicial or administrative investigation or
proceeding relating thereto shall immediately, upon written direction, be due from
the Borrower and shall bear interest at the Default Rate from the date the same shall
_J
become due and payable until the date paid, and all sums so advanced or paid and
expenses incurred, with interest as aforesaid, shall be added to the indebtedness
E
secured hereby and shall be secured by this Mortgage. The Borrower shall
reimburse the Lender for all such sums so advanced or paid and expenses incurred,
a
regardless of whether the Borrower would have ultimately been responsible for such
costs under applicable law.
(e) The Borrower hereby agrees to indemnify, to hold harmless, to reimburse, and upon
written direction by the Lender to defend the Lender from and against any third
party claims involving hazardous substances or similar claims involving the use or
condition of the Land and for any and all liability or responsibility that may at any
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 15 of 25
Packet Pg. 711
1 6.F.6.b
time be imposed upon the Lender by reason of the operation or use of the Land, or
any portion thereof, by the Borrower, or any prior owner, tenant, or operator thereof,
or any other persons or organizations, or by reason of the Land or any portion
thereof not complying fully with all Environmental Requirements.
(f) The Borrower and each guarantor, if any, of the indebtedness secured hereby shall
be and remain jointly and severally liable under this paragraph regardless of any
other provisions set forth herein or in the Note or in any such guaranty that may limit
recourse against the Borrower or anyone else. Furthermore, the provisions of this
paragraph shall survive the payment of the indebtedness secured hereby and the
release and/or assignment of this Mortgage and/or any such guaranty.
Notwithstanding the foregoing, this indemnification shall not apply solely to
hazardous substances or asbestos -containing materials first introduced to the Property
by anyone other than Borrower or its agents or employees after Borrower is no longer
in possession of the Property following the foreclosure of the Property or the delivery
and acceptance of a deed -in -lieu of such foreclosure.
2.15 Depository Accounts. Borrower shall, at all times during the term of the Note secured
hereby, maintain its primary depository relationship with Lender.
2.16 Financial Reports. All financial statements and other financial information provided by the
Borrower to the Lender shall at all times be accurate and complete in all material respects.
ARTICLE THREE
DEFAULTS
3.01 Event of Default. The term "Event of Default," wherever used in the Mortgage, shall mean
any one (1) or more of the following events not corrected within the above -mentioned grace
periods:
(a) Failure by Borrower to pay, as and when due and payable, any installment of
principal or interest due under the Note, any deposit for Taxes or insurance
premiums due hereunder, or any other sums to be paid by Borrower hereunder or
under any other instrument securing the Note.
(b) Failure by Borrower, or any other party providing security for the Note to duly keep,
perform, and observe any other covenant, condition, or agreement in the Note, this
Mortgage, any other instrument securing the Note, or any other instrument collateral
to the Note or executed in connection with the sums secured hereby after Lender
gives written notice specifying the breach to Borrower.
(c) A default of any kind by Borrower with respect to any other loan extended by
Lender to Borrower, whether such default be financial in nature or otherwise.
(d) If Borrower shall file a voluntary petition in bankruptcy or shall be adjudicated a
bankrupt or insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, wage earner's plan, assignment
for the benefit of creditors, receivership, dissolution or similar relief under any
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 16 of 25
Packet Pg. 712
1 6.F.6.b
present or future federal bankruptcy code or act or any other present or future
applicable federal, state or other statute or law, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Borrower or all
or any part of the Land; or if within sixty (60) days after commencement of any
proceeding against Borrower seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, debtor relief or similar relief under any
present or future federal bankruptcy code or act of any other present or future
federal, state or other statute or law, such proceeding shall not have been dismissed
or stayed on appeal; or if, within sixty (60) days after the appointment, without the
consent or acquiescence of Borrower or of any trustee, receiver, or liquidator of
Borrower, of all of any portion of the Mortgaged Property, such appointment shall
not have been vacated or stayed on appeal; or if within sixty (60) days after the
expiration of any such stay, such proceeding or appointment shall not have been
dismissed or vacated.
(e) If foreclosure proceedings should be instituted on any other mortgage encumbering
Borrower's leasehold interest in the Land, or if any foreclosure proceeding is
instituted on any lien of any kind encumbering Borrower's leasehold interest in the
Land.
(f) Any sale or further encumbrance of Borrower's leasehold interest in the Land, or
any modification of any leasehold mortgage superior or inferior to this Mortgage
increasing the amount outstanding under any such mortgage, whether pursuant to a
future advance agreement or otherwise, or waiver of any principal or interest
payments on any note or leasehold mortgage superior or inferior to this Mortgage.
(g) Any material breach of any warranty or material untruth of any representation of
Borrower contained in the Note, this Mortgage, or any other instrument securing the
Note.
(h) Any assignment, transfer, or other conveyance of Borrower's leasehold interest in
the Land, of any interest in the Borrower without the prior written consent of Lender
(which consent may be withheld in Lender's sole and absolute discretion), or of a
substantial portion of the assets of Borrower or any guarantor during the term of the
loan evidenced by the Note and secured hereby without the express prior written
consent of Lender. This prohibition excludes an assignment, transfer, or other
conveyance to a trust of which any guarantor is the grantor, trustee, and/or
beneficiary, so long as the purpose of such assignment, transfer, or other conveyance
is solely for estate planning purposes and not for the purposes of hindering, delaying,
or defrauding Lender or any other creditors of any guarantor.
3.02 Acceleration of Maturity. If an Event of Default shall have occurred and be continuing
and after expiration of any applicable cure period, the Lender may declare the entire
principal amount of the Note then unpaid, and the interest accrued thereon, to be due and
payable immediately, and upon such declaration the entire principal and interest shall
immediately become and be due and payable as fully and to the same effect as if the date of
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 17 of 25
Packet Pg. 713
1 6.F.6.b
the declaration by Lender were the date originally specified for the maturity of the unpaid
balance of the Note.
3.03 Lender's Right to Enter and Take Possession, Operate, and Apply Income.
(a) If an Event of Default shall have occurred and be continuing, the Borrower, upon
written direction of the Lender, shall immediately surrender to the Lender the
actual possession of the Mortgaged Property, and to the extent permitted by law
the Lender itself, or such officers or agents as it may appoint, may enter and take
possession of all the Mortgaged Property, and may exclude the Borrower and its
agents and employees wholly therefrom, and may have joint access with the
Borrower to the books, papers, and accounts of the Borrower;
(b) If the Borrower shall, for any reason, fail to surrender or deliver any such Mortgaged
Property or any part thereof after such demand by the Lender, the Lender may obtain
a judgment or decree conferring on the Lender the right to immediate possession or
requiring the Borrower to deliver immediate possession of all or part of such
Mortgaged Property to the Lender;
(c) The Borrower will pay to the Lender, upon demand, all expenses of obtaining such
judgment or decree and reasonable compensation to the Lender, its attorneys and
agents, and all such expenses and compensation shall, until paid, be secured by the
lien of this Mortgage;
(d) Upon the entering upon or taking of possession, the Lender may hold, store, use,
operate, manage, and control the Mortgaged Property and conduct the business
thereof, and, from time to time:
(i) make all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments, and improvements thereto and thereon, and purchase
or otherwise acquire additional fixtures, personalty and other property;
(ii) insure or keep the Mortgaged Property insured and exercise all the rights and
powers of the Borrower in its name or otherwise, with respect to the same;
(iii) manage and operate the Mortgaged Property and exercise all the rights and
powers of the Borrower in its name or otherwise with respect to the same;
(iv) enter into any and all agreements with respect to the exercise by others of
any of the powers herein granted the Lender;
all as the Lender from time to time may determine to be to its best advantage, and the
Lender may collect and receive all the income, revenues, rents, issues, and profits of the
same, including those past due as well as those accruing thereafter, and after deducting:
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 18 of 25
Packet Pg. 714
1 6.F.6.b
(aa) all expenses of taking, holding, managing, and operating the Mortgaged Property
(including compensation for the services of all persons employed for such purposes);
(bb) the cost of all such maintenance, repairs, renewals, replacements, additions,
betterments, improvements, purchases, and acquisitions;
(cc) the cost of insurance;
(dd) such Taxes and other charges prior to the lien of this Mortgage as the Lender may
determine to pay;
(ee) other proper charges upon the Mortgaged Property or any part thereof, and
(ff) the reasonable compensation, expenses, and disbursements of the attorneys and
agents of the Lender,
the Lender shall apply the remainder of the monies so received by the Lender first to the
payment of accrued interest, second to the payment of any required tax deposit, insurance
deposit, or expenses required by Lender, and third toward the outstanding principal balance
on the Note.
3.04 Lender's Power of Enforcement. If an Event of Default shall have occurred and be
continuing the Lender may, either with or without entry or taking possession as hereinabove
provided or otherwise, proceed by suit or suits at law or in equity or by any other
appropriate proceeding or remedy: (a) to enforce payment of the Note or the performance of
any term hereof or any other rights, (b) to foreclose this Mortgage under the judgment or
decree of a court or courts of competent jurisdiction, and (c) to pursue any other remedy
available to it, all as the Lender shall deem most effectual for such purposes. The Lender
shall take action either by such proceedings or by the exercise of its powers with respect to
entry or taking possession as the Lender may determine, and no such action shall be deemed
an election of remedies.
3.05 Leases. The Lender, at the Lender's option, is authorized to foreclose this Mortgage and the
rights of any tenants of the Land, and the failure to make any such tenants parties defendant
to any such foreclosure proceedings and to foreclose their rights will not be, nor be asserted
to be by the Borrower, a defense to any proceedings instituted by the Lender to collect the
sums secured hereby or any deficiency remaining unpaid after the foreclosure sale of the
Land.
3.06 Principal and Interest Become Due on Foreclosure. Upon commencement of suit or
foreclosure of this Mortgage, the unpaid principal of the Note, if not previously declared
due, and the interest accrued thereon, shall at once become and be immediately due and
payable without additional demand.
3.07 Purchase by Lender. Upon any foreclosure sale pursuant to judicial proceedings, the
Lender may bid for and purchase the Land and, upon compliance with the terms of sale,
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
Page 19 of 25
Packet Pg. 715
1 6.F.6.b
may hold, retain, possess, and dispose of such property in its own absolute right, without
further accountability.
3.08 Application of Indebtedness Toward Purchase Price. Upon any foreclosure sale pursuant
to judicial proceedings, the Lender may, if permitted by law, after allowing for the
proportion of the total purchase price required to be paid in cash for the costs and expenses
of the sale, compensation, and other charges, in paying the purchase price, apply to the
purchase price any portion of or all sums due to the Lender under the Note and this
Mortgage, in lieu of cash.
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3.09 Waiver of Right to Marshal Assets. The Borrower agrees, to the fullest extent permitted a
by law, that in case of a default on its part hereunder, neither the Borrower nor anyone
claiming through or under it shall assert any right to have the assets comprised in the
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security intended to be created hereby marshaled upon any foreclosure of the lien hereof and
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agrees that the Lender or any court having jurisdiction to foreclose such lien may sell the
Land as an entirety.
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3.10 Receiver. If any Event of Default shall occur and be continuing, then upon the filing of a
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bill in equity or other commencement of judicial proceedings to enforce the rights of the
Lender, the Lender to the extent permitted by law, shall be entitled as a matter of right to the
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appointment of a receiver to enter upon and take possession of the Land. The receiver shall
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collect all rents, revenues, issues, income, products, and profits thereof pending such
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proceedings and apply the same as the court may direct. The receiver shall have the rights
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and powers permitted under the laws of Florida and such other powers as the court may
direct. The expenses, including receiver's fees, counsel fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured by this
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Mortgage. The right to enter and take possession of, to manage, and operate the Land, to
collect the rents, issues, and profits thereof, whether by a receiver or otherwise, shall be
cumulative to any other right or remedy hereunder or afforded by law and may be exercised
concurrent therewith or independently thereof. Lender shall be liable to account only for
such rents, issues, and profits actually received by Lender, whether received pursuant to this
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paragraph or Paragraph 3.03 above. Notwithstanding the appointment of any receiver,
trustee, or other custodian, the Lender shall be entitled as pledgee to the possession and
control of any cash or other instruments at the time held by or payable or deliverable under
the terms of this Mortgage to the Lender. �
3.11 Suits to Protect the Land. The Lender shall have power: (a) to institute and maintain such
suits and proceedings as it may deem expedient to prevent any material impairment of the
Land by any acts which may be unlawful or any violation of the Mortgage, (b) to preserve
or protect its leasehold interest in the Land and in the income, revenues, rents, and profits
arising therefrom, and (c) to restrain the enforcement of or compliance with any legislation
or other governmental enactment, rule, or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule, or order would
impair the security hereunder or be prejudicial to the interest of the Lender.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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3.12 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings affecting the Borrower,
its creditors, or its property, the Lender, to the extent permitted by law, shall be entitled to
file such proofs of claim and other documents as may be necessary or advisable in order to
have the claims of the Lender allowed in such proceedings for the entire amount due and
payable by the Borrower under this Mortgage at the date of the institution of such
proceedings and for any additional amount which may become due and payable by the
Borrower hereunder after such date.
3.13 Acceleration and Application of Monies by Lender.
(a) If default shall be made under the Note, this Mortgage, or otherwise, and the same
shall not have been cured within any applicable grace period, then, upon demand of
the Lender, the Borrower shall pay to the Lender the entire amount due and payable
under the Note. If Borrower shall fail to pay the same immediately upon such
demand, the Lender shall be entitled to sue for and to recover judgment for the
whole amount so due and unpaid together with costs, which shall include the
reasonable compensation, expenses, and disbursements of the Lender's agents and
attorneys either before, after, or during the pendency of any proceedings for the
enforcement of this Mortgage, including appellate proceedings. The right of the
Lender to recover such judgment shall not be affected by any taking of possession or
foreclosure sale hereunder, or by the exercise of any other right, power, or remedy
for the enforcement of the terms of this Mortgage, or the foreclosure of the lien
created hereby.
(b) In case of a foreclosure sale of Borrower's leasehold interest in the Land and of the
application of the proceeds of sale to the payment of the debt hereby secured, the
Lender shall be entitled to enforce payment of and to receive all amounts then
remaining due and unpaid upon the Note, and the Lender shall be entitled to receive
judgment for any portion of the debt remaining unpaid, with interest.
(c) The Borrower agrees, to the fullest extent that it may lawfully so agree, that no
recovery of any such judgment by the Lender and no attachment or levy of any
execution upon any such judgment upon Borrower's leasehold interest in the Land
or upon any other property shall in any manner or to any extent affect the lien of this
Mortgage upon Borrower's leasehold interest in the Land or any part thereof or any
lien, rights, powers, or remedies of the Lender hereunder, but such lien, rights,
powers, and remedies shall continue unimpaired as before.
(d) Any monies thus collected by the Lender or received by the Lender under this
paragraph shall be applied as follows:
First, to the payment of the reasonable attorneys' fees and expenses incurred
by Lender, its agents, and attorneys, including but not limited to Taxes paid,
insurance premiums paid, and receiver's fees paid.
Second, toward payment of interest due and unpaid under the Note.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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Third, toward payment of principal due and unpaid under the Note.
3.14 Delay or Omission No Waiver. No delay or omission of the Lender or of any holder of the
Note to exercise any right, power, or remedy accruing upon any default shall exhaust or
impair any such right, power, or remedy or shall be construed to be a waiver of any such
default or acquiescence therein, and every right, power, and remedy given by this Mortgage
to the Lender may be exercised from time to time and as often as may be deemed expedient
by the Lender.
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3.15 No Waiver of One Default to Affect Another. No waiver of any default hereunder shall a
extend to or shall affect any subsequent or any other then existing default or shall impair any
rights, powers, or remedies of Lender. If the Lender: (a) grants forbearance or an extension
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of time for the payment of any sums secured hereby; (b) takes other or additional security
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for the payment thereof; (c) waives or does not exercise any right granted herein or in the
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Note; (d) releases any part of Borrower's leasehold interest in the Land from the Note or
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Mortgage; (e) consents to the filing of any declaration of condominium map, plat, or replat
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thereof, (f) consents to the granting of any easement thereon, or (g) makes or consents to
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any agreement subordinating the lien hereof, any such act or omission shall not release,
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discharge, modify, change or affect the original liability under the Note, Mortgage, or
otherwise of the Borrower or any subsequent purchaser of Borrower's leasehold interest in E
the Land or any part thereof, or any maker, co-signer, endorser, surety or guarantor, nor L
shall any such act or omission preclude the Lender from exercising any right, power, or Q
privilege herein granted or intended to be granted in the event of any other default then
made or of any subsequent default nor, except as otherwise expressly provided in an
instrument or instruments executed by the Lender, shall the lien of this Mortgage be altered
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thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part
of Borrower's leasehold interest in the Land, the Lender, without notice to any person or
corporation, is hereby authorized and empowered to deal with any such vendee or transferee
with reference to Borrower's leasehold interest in the Land or the indebtedness secured r-
hereby, or with reference to any of the terms or conditions hereof, as fully and to the same �°
extent as it might deal with the original parties hereto and without in any way releasing or -0
discharging any of the liabilities or undertakings hereunder. �
3.16 Discontinuance of Proceedings - Position of Parties Restored. In case the Lender shall
have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry, or
otherwise, and such proceedings shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Lender, then and in every such case, the
Borrower and the Lender shall be restored to their former positions and rights hereunder,
and all rights, powers, and remedies of the Lender shall continue as if no such action had
been taken.
3.17 Remedies Cumulative. No right, power, or remedy conferred upon or reserved to the
Lender by this Mortgage is intended to be exclusive of any other right, power, or remedy,
but each and every such right, power, and remedy shall be cumulative and concurrent and
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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1 6.F.6.b
shall be in addition to any other right, power, and remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
3.18 Subrogation. The Lender hereby is subrogated to the claims and liens of all parties whose
claims or liens are discharged or paid with the proceeds of the indebtedness secured by this
Mortgage.
ARTICLE FOUR
ADDITIONAL PROVISIONS
2
4.01 Future Advances. This Mortgage is given to secure not only the existing indebtedness of
a
TWELVE MILLION SEVEN HUNDRED SEVENTEEN THOUSAND
($12,717,000.00) DOLLARS of the Borrower to the Lender evidenced by the Note secured
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hereby, but also such future advances up to an additional TWELVE MILLION SEVEN
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HUNDRED SEVENTEEN THOUSAND ($12,717,000.00) DOLLARS as are made
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within twenty (20) years from the date hereof, plus interest thereon, and any disbursements
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made by the Lender for the payment of Taxes, insurance or other liens on the property
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encumbered by this Mortgage, with interest on such disbursements, which advances shall be
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secured hereby to the same extent as if such future advances were made on this date. The
total amount of indebtedness secured hereby may increase or decrease from time to time.
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The provisions of this paragraph shall not be construed to imply any obligation on Lender to
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make any future advances, it being the intention of the parties that any future advances shall
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be solely at the discretion and option of the Lender. Any reference to "Note" in this
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Mortgage shall be construed to also reference any instruments evidencing future advances
made pursuant to this paragraph.
4.02 Pre -Petition Consent to Relief from Automatic Stay in Bankruptcy. Borrower hereby
knowingly, voluntarily and intentionally consents to the immediate relief from the automatic
stay in any bankruptcy court in the event that Borrower, as the debtor, files bankruptcy.
Borrower acknowledges that it has a constitutional right to file bankruptcy as well as the
existence of public policy which prohibits a creditor from prohibiting any debtor from filing
bankruptcy, and Borrower further acknowledges that nothing contained in this paragraph is
intended to be a total prohibition against filing bankruptcy but is limited only to relief from
an automatic stay under 11 U.S.C. Section 362. Filing bankruptcy and failing to consent to
relief from the automatic stay could delay Lender from foreclosing this Mortgage in a state
or federal court of competent jurisdiction. Borrower agrees that an essential element of the
consideration Borrower has offered Lender for this Mortgage and the related loan
documents is this waiver and consent to relief from the automatic stay. With this
knowledge, therefore, Borrower, to the fullest extent possible, consents to relief from the
automatic stay in the event that Borrower should file bankruptcy at any time during the
existence of this Mortgage or any of the related loan documents. This provision is a
material inducement for Lender to enter into and accept this Mortgage and to extend credit
or to grant other financial accommodations to Borrower.
4.03 Commitment Letter. The terms and provisions of any Commitment Letter issued in
conjunction with this transaction are, to the extent not inconsistent herewith, incorporated
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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1 6.F.6.b
herein. In the event of any conflict between the provisions of the Commitment Letter and
the terms hereof, the provisions of this Mortgage shall control. The terms of the
Commitment Letter, to the extent applicable, shall survive the closing of the loan evidenced
by the Note and secured hereby and shall be applicable during the entire term of the loan
unless otherwise specifically indicated therein.
4.04 Construction Loan Agreement. Borrower acknowledges that the Loan will be funded in
accordance with the terms of a Construction Loan Agreement executed of even date
herewith, the terms of which are incorporated herein by reference. All sums so advanced
shall be secured hereby with the same priority as if advanced on the date hereof.
Notwithstanding anything to the contrary contained in the Note, this Mortgage, or any other
instrument securing the Note, the Lender may, at its option, declare the entire indebtedness
secured hereby, and all interest accrued thereon and all advances made by Lender hereunder,
to be immediately due and payable in the event of a breach by the Borrower of any covenant
contained in the Construction Loan Agreement.
4.05 Waiver of Jury Trial. BORROWER AND LENDER EACH HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT WHICH THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON THIS
MORTGAGE OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
MORTGAGE, THE NOTE, OR ANY OTHER LOAN DOCUMENT EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF LENDER OR
LENDER'S OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO AND
ACCEPT THIS MORTGAGE AND TO EXTEND CREDIT OR TO GRANT OTHER
FINANCIAL ACCOMMODATIONS TO BORROWER.
IN WITNESS WHEREOF, the undersigned has executed this instrument on the day and
year first above written.
Signed, sealed and delivered in CC BSG NAPLES, LLC, a Delaware limited
the presence of: liability company
By:
Witness # 1
Print Name Below:
Witness #2
Print Name Below:
David Pillsbury, President
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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1 6.F.6.b
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me by means of [ ] physical
presence or [ ] online notarization this day of , 2022, by David Pillsbury,
as President of CC BSG NAPLES, LLC, a Delaware limited liability company, [ ] who is
personally known to me or [ ] who has produced as
identification.
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NOTARY PUBLIC a
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TYPED OR PRINTED NAME OF NOTARY W
MY COMMISSION EXPIRES: 4
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S:\Clients\First Foundation Bank\CC BSG\Leasehold Mortgage and Security Agreement
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
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Packet Pg. 721
16.F.6.c
$12,717,000.00
Note Amount
CC BSG Naples, LLC
Borrower's Name
Officer's Initials
85-3268658
Borrower's Employer I.D. Number
3030 LBJ Freeway — Suite #600, Dallas, Texas 75234
Borrower's Address
January , 2027
Note Maturity Date
$12,717,000.00 U.S.
Prime + 2.00%
Initial Interest Rate
PROMISSORY NOTE
(LOAN # )
$127,170.00
Loan Fee
Naples, Florida
Dated: January , 2022
FOR VALUE RECEIVED, the undersigned, CC BSG NAPLES, LLC, a Delaware
limited liability company (hereinafter referred to as `Borrower"), promises to pay to the order of
FIRST FOUNDATION BANK, a California state -chartered non-member bank, or its successors
or assigns (collectively hereinafter referred to as the "Lender"), at its offices at 18101 Von Karman
Avenue — Suite #750, Irvine, California 92612, or such other place as the holder hereof may from
time to time designate in writing, the principal sum of TWELVE MILLION SEVEN HUNDRED
SEVENTEEN THOUSAND ($12,717,000.00) DOLLARS, or so much thereof as may have been
disbursed, with interest thereon from the date or dates of disbursement of the aforesaid principal
sum as hereafter provided, to be paid in lawful money of the United States of America, which shall
be legal tender in payment of all debts and dues, public and private, at the time of payment as
follows: 1W
1. Payment of Principal and Interest. Principal and interest under this Promissory Note
("Note") shall be payable as follows:
Interest only shall initially be paid in monthly installments on the outstanding principal
balance hereof from time to time beginning on February , 2022 and continuing on the
day of each of the next succeeding thirty-five (35) months. During such period,
interest on the outstanding principal balance shall at all times accrue at a rate which is equal
to the Prime Rate (hereinafter defined) plus two percent (2.00%) per annum. For purposes
of this Note, the term "Prime Rate" shall mean that rate announced by Lender as its prime
lending rate, as established from time to time. The applicable interest rate shall be computed
and adjusted as of the date of change, and interest shall be computed on the basis of a 360-
day year for the actual number of days outstanding. On January , 2025, the applicable
interest rate shall adjust to, and shall thereafter remain constant at, a rate which is equal to
the then yield of the 5-year Treasury Note (as reported by the Federal Reserve on a weekly
average basis in The Wall Street Journal or other nationally recognized financial publication
Packet Pg. 722
16.F.6.c
in the absence thereof) plus 350 basis points. Beginning on February , 2026 and
continuing on the day of each succeeding month thereafter during the remaining term
of this Note, principal and interest shall be paid in equal monthly installments. During such
period, the principal sum due hereunder shall be amortized over a period of seventeen (17)
years. Subject to the potential renewal term as described in the Construction Loan
Agreement executed in conjunction herewith, this Note shall mature and the entire principal
balance hereof or so much as may have been advanced and remains outstanding, together
with the accrued and unpaid interest thereon, shall become due and payable on January
, 2027 ("Maturity Date"). After maturity or default, this Note shall bear interest at a
rate equal to the highest rate permissible under then applicable law.
2. Draw Note. It is intended hereby that this Note represents a draw note whereby proceeds of
the loan evidenced hereby will be advanced by Lender in a series of draws. Interest shall be
due and payable only on such funds as are drawn hereunder.
3. Security for this Note. This Note is secured by, inter alia, a Leasehold Mortgage and
Security Agreement ("Mortgage") of even date herewith encumbering the real property
therein described and duly recorded among the public records of Collier County, Florida, an
Assignment of Leases and Rents of Real Property, and UCC-1 Financing Statements.
4. Prepayment. In the event that Maker prepays any portion of the principal sum due
hereunder, a prepayment penalty shall be due in accordance with the following formula:
A) During the first year of this Note, Maker shall pay to Lender, in conjunction with the
payment of any portion of prepaid principal, an additional amount equal to five
percent (5%) of such pre -paid principal sum;
B) During the second year of this Note, Maker shall pay to Lender, in conjunction with
the payment of any portion of prepaid principal, an additional amount equal to three
percent (3%) of such pre -paid principal sum; and
C) During the third year of this Note, Maker shall pay to Lender, in conjunction with
the payment of any portion of prepaid principal, an additional amount equal to one
percent (1 %) of such pre -paid principal sum.
Thereafter, Maker may make prepayments hereunder from time to time without premium or
penalty. The amount of any partial prepayment shall be applied initially to any applicable
prepayment penalty, then to installments of principal to become due in the inverse order of
the maturity thereof, and any prepayment in whole shall be accompanied by an amount
equal to the interest accrued thereon to the date of receipt of such prepayment in collected
funds, along with any applicable prepayment penalty. For purposes hereof, Lender and
Maker agree that the prepayment penalty set forth herein shall be deemed to be fair and
reasonable in all respects.
5. Florida Excise Tax on Documents. Documentary stamp tax in the amount of $44,509.50
has been paid with respect to this Note.
PROMISSORY NOTE
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6. Acceleration upon Default. It is agreed hereby that if any payment of the principal sum
above mentioned, or any payment of interest thereon, not be made as provided in this Note;
or if default be made in the performance of or compliance with any of the Loan Documents
securing this Note; or in the event default be made in the performance or compliance with
any of the covenants and conditions of any security agreement now or hereafter in effect
securing payment of this Note; or upon any default in the payment of any sum due by Maker
to Lender under any other promissory note, security instrument or other written obligation of
any kind now existing or hereafter created; or upon the insolvency, bankruptcy or
dissolution of the Maker hereof, then, in any or all such events, the entire amount of
principal of this Note with all interest then accrued shall, at the option of the holder of this
Note and upon the expiration of ten (10) days written notice of default to Maker as to
monetary defaults, or upon the expiration of thirty (30) days written notice of default to
Maker as to non -monetary defaults, and in either event Maker's failure to cure such default,
become and be due, payable, and collectible, time being of the essence of this Note. If this
Note shall not be paid on the Maturity Date or according to the tenor hereof and strictly as
above provided, it may be placed in the hands of an attorney at law for collection, and in that
event, each party liable for the payment thereof, as Maker, endorser, guarantor, or otherwise,
hereby agrees to pay the holder hereof, in addition to the sums above stated, a reasonable
sum as an attorneys' fee. In addition to the foregoing, in the event of a default hereunder or
under any of the other Loan Documents by Maker for which Lender elects not to accelerate
all sums due hereunder (including Maker's failure to provide financial documentation
required by the Loan Documents within thirty (30) days after written notice of such failure
from Lender), the applicable interest rate for the period beginning ten (10) days after Lender
provides written notice of default to Maker and ending upon the date that such default is
cured by Maker shall increase by one -quarter of one percent (0.25%) for the first thirty (30)
days of such period of default and shall thereafter increase by an additional one -quarter of
one percent (0.25%) during each thirty (30) day period thereafter during which such default
continues to exist, but in no event shall such interest rate ever exceed the lesser of eighteen
percent (18%) per annum or the maximum rate allowed by applicable law. Notwithstanding
the foregoing, if Maker fails to establish or maintain its primary depository relationship with
Lender as required by the Loan Documents, the applicable interest rate for the period
beginning ten (10) days after Lender provides written notice of default to Maker and ending
upon the date that such default is cured by Maker shall increase by one-half of one percent
(0.50%), but in no event shall such interest rate exceed the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by applicable law. Such default interest rates shall
apply to the entire outstanding principal balance due under this Note. Upon Maker's curing
of such default, the applicable interest rate hereunder shall thereupon revert to the initially
agreed -upon rate effective upon the date that the default is so cured by Maker.
7. Right of Set -Off. As additional security for payment of this Note, the Maker hereby grants
to the Lender a security interest in and upon any and all property of the Maker which is or
may hereafter be in the Lender's possession in any capacity, including without limitation, all
monies owed or to be owed by the Lender to the Maker, and with respect to all such
property, the Lender shall have the same rights under the Loan Documents as it has with
respect to the Mortgaged Property. Without limiting any other right of the Lender,
PROMISSORY NOTE
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16.F.6.c
whenever the Lender has the right to declare the Note to be immediately due and payable
(whether or not it has so declared), the Lender may elect to set off against all sums due
under the Note all monies then owed to the Maker by the Lender in any capacity whether
due or not, and if the Lender so elects, it shall be deemed to have exercised its right of set-
off immediately at the time its right to such election accrues. This Paragraph 6 is limited to
and is intended to reflect Lender's security interest in and to all funds of the Maker on
deposit with Lender.
8. Late Charge. Provided the Lender has not exercised its right to accelerate this Note as
hereinabove provided, in the event any required payment on this Note is not received by
Lender within ten (10) days after the payment is due, Maker shall pay Lender a late charge
of five percent (5%) of the payment not so received, the parties agreeing that such charge is
a fair and reasonable charge for the late payment and that such charge shall not be deemed a
penalty.
9. Extension of Maturity Date and Payments. As to this Note, the Mortgage, and any other
instruments securing the indebtedness, the Borrower expressly agrees that the Maturity Date
of this Note, or any payment hereunder, may be extended from time to time by Lender
without in any way affecting the liability of the Borrower.
10. Usury Savings Clause. Nothing herein contained, nor in any instrument or transaction
relating hereto, shall be construed or so operate as to require the Borrower, or any person
liable for the payment of this Note, to pay interest in an amount or at a rate greater than the
highest rate permissible under applicable law. Should any interest or other charges paid by
the Borrower, or any parties liable for the payment of the loan made pursuant to this Note,
result in the computation or earning of interest in excess of the highest rate permissible
under applicable law, any and all such excess shall be and the same is hereby waived by the
holder hereof, Lender shall make whichever adjustment in the Note is necessary to ensure
that Borrower will not be required to pay further interest in excess of the amount permitted
by Fla. Stat. §687.03, and all such excess shall be automatically credited against and in
reduction of the outstanding principal balance, and any portion of such excess which
exceeds the outstanding principal balance shall be paid by the holder hereof to the Borrower
and any parties liable for the payment of this Note, it being the intent of the parties hereto
that under no circumstances shall the Borrower, or any parties liable for the payment of the
loan hereunder, be required to pay interest in excess of the highest rate permissible under
applicable law.
11. Attorneys' Fees. In the event that suit be brought hereon, or an attorney be employed or
expenses be incurred to compel payment of this Note or any portion of the indebtedness
evidenced hereby, or to defend the priority of the Mortgage or to in any way represent
Lender in reference to any of the loan documents, Borrower promises to pay all such
attorneys' fees, costs, and expenses of investigation, all as are reasonably incurred by
Lender as a result thereof and including, without limitation, attorneys' fees, costs, and
expenses of investigation incurred in appellate proceedings or in any action or participation
in, or in connection with, any case or proceeding under Title 11 U.S.C. Chapters 7, 11, or 13
PROMISSORY NOTE
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16.F.6.c
of the United States Bankruptcy Code or any successor thereto, and attorneys' fees, costs,
and expenses incurred as a result of Lender exercising its right to cure any event of default
by Borrower under this Note, the Mortgage, or any other loan document, or as a result of the
foreclosure of the Mortgage, deed in lieu thereof, or Clerk's sale thereunder.
12. Governing Law. This Note is to be construed according to the applicable laws of the State
of Florida and the United States of America.
Borrower has executed this Note as of the date first written above.
CC BSG NAPLES, LLC, a Delaware limited
liability company
David Pillsbury, President
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me by means of [ ] physical presence
or [ ] online notarization this day of , 2022, by David Pillsbury, as President
of CC BSG NAPLES, LLC, a Delaware limited liability company, [ ] who is personally known to
me or [ ] who has produced as identification.
S:\Clients\First Foundation Bank\CC BSG\Promissory Note
NOTARY PUBLIC
TYPED OR PRINTED NAME OF NOTARY
MY COMMISSION EXPIRES:
PROMISSORY NOTE
Page 5 of 5
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02/08/2022
16.F.7
EXECUTIVE SUMMARY
Recommendation to approve the use of parking spaces at the Naples Regional Library and Naples
Depot Museum by The Naples Players for use by staff and volunteers.
OBJECTIVE: Partner with The Naples Players to provide additional parking for use by staff and
volunteers.
CONSIDERATIONS: In a letter received January 31, 2022, The Naples Players submitted a request for
the County's approval to utilize a portion of the parking lots at the Naples Regional Library and Naples
Depot Museum. Both locations are within walking distance of The Naples Players facility and would be
utilized mostly after-hours. The parking spots at these locations would primarily be utilized Wednesday
to Saturday evenings and Sunday afternoons. Parking required to support special events would be
coordinated to avoid interference with the operations of these locations. The Naples Regional Library has
more than 80 parking spots, which The Naples Players would seek permission to use 35 spaces.
Additionally, the Naples Depot Museum has more than 60 parking spots, which only 35 spaces would be
utilized. Should in the unlikely event there is an overlap in parking needs that involves a County use or
activity, the County Manager's office will work directly with the Naples Players to develop a reasonable
accommodation without further Board involvement.
FISCAL IMPACT: There is no Fiscal Impact associated with this Executive Summary.
GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with
this Executive Summary.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, raises no legal
issues and requires majority vote for approval. -JAK
RECOMMENDATION: To approve the use of approximately 35 parking spaces at both the Naples
Regional Library and Naples Depot Museum by The Naples Players for use by staff and volunteers.
Prepared by: Geoffrey Willig, County Manager's Office Senior Operations Analyst
ATTACHMENT(S)
1. CountyParkingRequest (PDF)
Packet Pg. 727
16.F.7
02/08/2022
COLLIER COUNTY
Board of County Commissioners
Item Number: 161.7
Doc ID: 21213
Item Summary: Recommendation to approve the use of parking spaces at the Naples Regional
Library and Naples Depot Museum by The Naples Players for use by staff and volunteers.
Meeting Date: 02/08/2022
Prepared by:
Title: Sr. Operations Analyst — County Manager's Office
Name: Geoffrey Willig
02/01/2022 11:19 AM
Submitted by:
Title: Division Director - Corp Fin & Mgmt Svc — County Manager's Office
Name: Mark Isackson
02/01/2022 11:19 AM
Approved By:
Review:
Office of Management and Budget
County Attorney's Office
County Manager's Office
Board of County Commissioners
Geoffrey Willig Level 3 OMB Gatekeeper Review
Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
Mark Isackson Level 4 County Manager Review
Geoffrey Willig Meeting Pending
Skipped 02/01/2022 11:18 AM
Completed 02/02/2022 10:32 AM
Completed 02/02/2022 12:57 PM
02/08/2022 9:00 AM
Packet Pg. 728
THE NA
T P P L"
Bryce Alexander
CEO/Executive Artistic Director
Mark Isackson
239.434.7340 1 ext.124
Collier County Manager balexander@naplesplayers.org
Esther Snyder I Executive Asst. I ext. 100
Dear Mark,
The Naples Players has been privileged to have had a great relationship with Collier County Public
Libraries. Hosting major events on behalf of the Friends of the Library, and even having several staff
librarians volunteering in their free time to work and perform in our productions.
As The Naples Players moves into the future, we would like to request permission to partner more
deeply with Collier County and our neighboring library, the Naples Regional Library located at 650
Central Ave, Naples, FL 34102.
More specifically, The Naples Regional Library has more than 80 parking spaces, and the Naples Players
would like the permission to use 35 of these parking spaces on a regular basis, mostly after-hours, for
our staff and volunteers who participate in performances. This location is ideal for our volunteers and
staff, as they can walk easily to our facility at 7015th Ave South.
Performances at The Naples Players occur most Wednesdays and Thursdays at 7:30pm; and Friday and
Saturdays at 8:00pm; as well as Sundays at 2pm.
Knowing the Library is open until 8:00pm during the tourist season on Wednesdays and Thursdays, we
are committed to ensuring the limited hours of crossover do not impact the library's operation; and all
other performances are after hours. We have observed, and been told by library staff, that there is
ample parking during the crossover times, but we will also coordinate special events, non-performance
weeks, and any of the library's needs on a regular basis.
We are not asking for exclusive use of the parking lot — that is, we will undertake no effort to prevent
the public from utilizing the lot at the same time we do — but are simply asking for the permission to
direct our volunteers and staff to park at the library at the designated times.
Additionally, we have spoken with Lodge McKee II and his Cultural Heritage organization who manage
The Naples Depot Museum (1051 5th Ave South). They have graciously agreed to give us permission to
use 35 of their more than 60 parking spots — at the exact times as stated above. Knowing that The
Naples Depot — while operated by the Cultural Heritage organization - is also a county facility, we would
like your blessing for this partnership, as well. This way, we can always accommodate special events, or
the special needs of our 2 partner locations with each other. The depot is open until 4pm each day, and
is also within walking distance of our organization.
We are grateful to Commissioner Taylor for her support, and to you and your staff for all of the amazing
work you lave done for our community. Please let me know if you have any questions,
Bryce under
& Executive Artistic Director
The Naples Players is a 501(c)3 nonprofit organization
THE NAPLES PLAYERS
7015'" AVENUES. NAPLES, FL 34102
BOX OFFICE 239.263.79901 ADMIN 239.434.7340
WWW.NAPL packet Pg. 729771