COLLATERAL ASSIGNMENT OF LEASE BY LESSEECOLLATERAL ASSIGNMENT OF LEASE BY LESSEE
THIS COLLATERAL ASSIGNMENT OF LEASE (the "Assignment ") made this
i S day of c� -sober , 2013, by MARINA CANTINA, LLC, a Florida limited liability
company, with an address of: 18395 Gulf Blvd., Suite 204, Indian Shores, Florida
33785 (hereinafter referred to as "Borrower" or "Assignor ") to USAMERIBANK, a
Florida banking corporation, its successors or assigns, whose address is: 4790 140th
Avenue North, Clearwater, Florida 33762 (hereinafter referred to as "Assignee "):
PRELIMINARY STATEMENT
Assignor is or will be indebted to Assignee in the original principal amount of
$1,500,000.00 ( the "Loan ") as evidenced by a certain promissory note dated
, 2013 (the "Note "), and secured by a Loan and Loan Agreement dated
, 2013 (the "Loan Agreement ").
Assignee is willing to make the Loan to Borrower provided, among other things,
that Assignor shall assign to Assignee all of its right, title and interest in and to the lease
affecting the real property (hereinafter the "Premises ") where Assignor's new business
is located and the rights and benefits of Assignor as lessee of the Premises.
Assignor is willing to make such assignment on the terms and conditions hereof
as an inducement to Assignee to make the Loan to Borrower, and Assignor's landlord
under the Lease has consented to such assignment.
NOW, THEREFORE, in consideration of the Loan and for other good and
valuable consideration, the receipt whereof is hereby acknowledged, Borrower hereby
grants, conveys, transfers and assigns to Assignee all of its right, title and interest in
and to that Lease between Assignor and the CITY OF CLEARWATER, FLORIDA, a
municipal corporation, dated September 17, 2012 (the "Lease ") and any modifications,
renewals or extensions thereof, which Lease is of certain property more particularly
described in Exhibit "A" hereto.
Prepared by and Return to:
Kenneth E. Thornton, Esq.
Fisher & Sauls, P.A.
100 Second Avenue S. #701
St. Petersburg, FL 33701
This Assignment is a present and irrevocable assignment and is made for the
purpose of securing payment of the Loan, including:
1. All sums and indebtedness now or hereafter due under the Note;
2. All liabilities and other obligations of payment and performance under the
Loan Agreement, this Assignment, or any other agreement securing the
Note (collectively the "Security Documents "); and
3. All liabilities and obligations of payment and performance under any of the
documents executed in connection therewith. All references to the Note
and Security Documents shall include all amendments, extensions or
renewals thereof.
Assignor hereby represents, covenants and warrants:
1. That the Lease is in full force and effect and unmodified.
2. That all rents (including additional rents and other charges) payable
pursuant to the Lease have been paid to the extent they were payable prior to the date
hereof.
3. The quiet and peaceful possession of the Assignee, and Assignor further
agrees to warrant and defend the leasehold estate created under the Lease for the
entire remainder of the term set forth therein, against all and every person or persons
lawfully claiming, or who may claim the same or any part thereof, subject only to the
payment of the rents in the Lease and to the performance and observance of all of the
terms, covenants, conditions and warranties thereof.
4. That there is no existing default under the provisions of the Lease or in
the performance of any part of the terms, covenants, conditions or warranties thereof
on the part of the lessee to be observed and performed.
The Assignor will pay or cause to be paid all rents, additional rents, taxes,
assessments, water and sewer rates, and other charges mentioned in and made
payable by the Lease for which provision has not been made hereinbefore, and, will
deliver, or cause to be delivered to the Assignee, the original receipt for any payments,
upon request therefor.
The Assignor will at all times promptly and faithfully keep and perform, or cause
to be kept and performed, all of the covenants and conditions contained in the Lease by
the lessee therein to be kept and performed and in all respects conform to and comply
with the terms and conditions of the Lease and the Assignor further covenants that it
will not do or permit anything to be done, the doing of which, or refrain from doing
anything, the omission of which, will impair or tend to impair the security of this
Assignment or will be grounds for declaring a forfeiture of the Lease Agreement.
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The Assignor also covenants that it will not modify or in any way alter the terms
of the Lease (except it may renew or extend) or cancel or surrender the Lease, or
waive, excuse, condone or in any way release or discharge the lessor thereunder of or
from the obligations, covenants, conditions and agreements by said lessor to be done
and performed; and said Assignor does by these presents expressly release, relinquish
and surrender unto the Assignee all its right and authority to cancel, surrender, amend,
modify or alter in any way the terms and provisions of the Lease and any attempt on the
part of the Assignor to exercise any such right without the written authority and consent
of the Assignee thereto being first had and obtained shall constitute a default under the
terms hereof and the entire indebtedness secured hereby shall, at the option of the
Assignee, become due and payable forthwith and without notice.
The whole of said principal sum of the Note shall immediately become due and
payable at the option of the Assignee, if the Assignor fails to give the Assignee
immediate notice of any default under the Lease or of the receipt by it of any notice of
default from the lessor thereunder or if the Assignor fails to furnish to the Assignee
immediately any and all information which it may request concerning the performance
by the Assignor of the covenants of the Lease or this Assignment, or if the Assignor
fails to permit forthwith the Assignee or its representative at all reasonable times to
made investigation or examination concerning the performance by the Assignor of the
covenants of the Lease.
In the event of any failure by Assignor to perform any covenant on the part of
lessee to be observed and performed under the Lease, the performance by Assignee
on behalf of the Assignor of the Lease covenant shall not remove or waive, as between
Assignor and Assignee, the corresponding default under the terms hereof and any
amount so advanced or any costs incurred in connection therewith, with interest
thereon, shall be repayable by Assignor without demand, secured hereby and any such
failure aforesaid shall be subject to all of the rights and remedies of Assignee
hereunder available on account of any default.
In the event of the bankruptcy or insolvency of Assignor, then the whole of the
said principal sum secured hereby shall, at the option of the Assignee, be deemed to
have become immediately due and payable and the same, with interest thereon and
with all other costs and charges, shall thereupon be collectible in the same manner as if
the whole of the principal sum had been made payable at the time when any of the
foregoing covenants shall have occurred.
ASSIGNOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREE-
MENT OR THE TRANSACTIONS CONTEMPLATED HEREIN OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OR ANY PARTY. ASSIGNOR FURTHER WAIVES ANY
RIGHT IT MAY HAVE TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN
355513 3
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN
WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER,
ASSIGNOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
ASSIGNOR, NOR ASSIGNOR'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT ASSIGNEE WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISIONS. ASSIGNOR ACKNOWLEDGES THAT THE PROVISIONS OF THIS
PARAGRAPH ARE A MATERIAL INDUCEMENT TO ASSIGNEE'S ACCEPTANCE OF
THIS ASSIGNMENT.
IN WITNESS WHEREOF, Assignor has hereunto caused these presents to be
executed under its hand and seal the day and year first herein written.
WITNESSES: ASSIGNOR/BORROWER
Signature of Witness r
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Print oj4ype name of Witness
Signature of Witness
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Print or type name of Witness
STATE OF FLORIDA
COUNTY OF PINELLAS
MARINA CANTINA, LLC,
a Florida limited liability company
By
rank R. Chivas, as its Manager
The foregoing instrument was acknowledged before me this fr day of
2013, by Frank R. Chivas as Manager of Marina Cantina, LLC, a Florida limited liability
company, on behalf of the company.
/ Personally known
Florida Driver's License Notary Public
Other Identification Produced
�UR =12 C...e
(77 ELL,H
Print or type name f Notary
(SEAL)
,ics#,,, CATHERINE YELLIN
,.; ;.; Commission # EE 123187
-:, 2 Expires September 30, 2015
Bonded Thu Troy Fain insurance 6004857019
[CONTINUED ON FOLLOWING PAGE]
355513 4
[COLLATERAL ASSIGNMENT OF LEASE BY LESSEE CONTINUED]
CONSENT OF LANDLORD
The undersigned, as Lessor under the foregoing Lease, acknowledges receipt of
a copy of the foregoing Collateral Assignment of Lease by Lessee and agrees that in
the event of a default in the Lease by Assignor which would enable the undersigned to
terminate the Lease, the undersigned shall give USAmeriBank notice of such default
and a thirty (30) day opportunity to cure such default. In the event USAmeriBank
succeeds to Assignor's interest under the Lease, the undersigned will recognize
USAmeriBank or any subsequent assignee of USAmeriBank as Lessee under the
Lease provided all terms, covenants and conditions of the Lease and the obligations of
Lessee thereunder are not in default.
Dated this 11
Countersigned:
cteo rkt creeco)
day of October, 2013.
"LANDLORD"
George N. Cretekos
Mayor
App •ved -s t% /form:
C . rt " o o
Assistant City Attorney
355513
CITY OF CLEARWATER, FLORIDA,
a municipal corporation
CITY OF CLEARWATER, FLORIDA
By: IA) j& /J;
William B. Horne II
City Manager
Attest:
5
Rosemarie Call
City Clerk