CLEARWATER MARINE AQUARIUM DEED MODIFICATION AGREEMENT AND SUBORDINATION AGREEMENT CLEARWATER MARINE AQUARIUM DEED MODIFICATION AGREEMENT
This Clearwater Marine Aquarium Deed Modification Agreement is made and entered into this
_�day of -Apf- - 2011, between the City of Clearwater, a municipal corporation of
the State of Florida, hereinafter referred to as the "City" and the Clearwater Marine Aquarium, Inc., a
Florida non-profit corporation, located at 249 Windward Passage, Clearwater, FL 33767, hereinafter
referred to as"CMA".
Witnesseth:
Whereas, CMA is the site of filming a major motion picture "Dolphin Tale" featuring Winter
the dolphin, and
Whereas, CMA anticipates that upon the release of the movie, that CMA will not have the
facility capacity to provide an appropriate and pleasant guest experience including sufficient parking
unless they acquire additional property and make improvements; and
Whereas, a portion of the property which CMA occupies was deeded to Clearwater Marine
Science Center, Inc. by the City in 1986, subject to certain restrictions and limitations which limit the
amount of financing which can be secured by the property; and
Whereas CMA has requested that the City modify the deed restriction to allow up to $8.6
million encumbrance on the CMA property subject to the restrictions and limitations; and
Whereas the City has agreed to subordinate its reversion rights set forth in the deed to the
financing requested by CMA;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
considerations, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I. MODIFICATION OF DEED RESTRICTIONS
The City and CMA agree to modify the Restrictions and Limitations contained in the deed from the
city of Clearwater to Clearwater Marine Science Center dated September 12, 1986 and record the
Modification of Deed instrument as attached hereto as Exhibit B. The purpose of this modification is
to allow CMA to obtain financing and mortgage the property described in Exhibit B in the principal
amount not exceeding in the aggregate $8,600,000. Said Modification shall be recorded in the public
records of Pinellas County, Florida prior to encumbering the property.
ARTICLE II. ENTIRE AGREEMENT
This Agreement, together with the Modification of deed and Subordination Agreement contemplated
herein constitute the entire Agreement of the parties on the subject hereof and may not be changed,
modified or discharged except by written Amendment duly executed by both parties. No
representations or warranties by either party shall be binding unless expressed herein or in a duly
executed Amendment hereof.
ARTICLE III. NOTICE
Any notice required or permitted to be given by the provisions of this Agreement shall be
conclusively deemed to have been received by a party hereto on the date it is hand delivered to
1 KEN BURKE,CLERK OF COURT
PINELLAS COUNTY FLORIDA
INS T# 20 i 1242au6 0.^-113{2^v1 i ai`04:36 Phi
OFF REC BK:17353 PG: 2161-2167
DocType:DEED RECORDING: $61.00
such party at the address indicated below (or at such other address as such party shall specify to the
other party in writing), or if sent by registered or certified mail (postage prepaid), on the fifth (5th)
business day after the day on which such notice is mailed and properly addressed.
1 ) If to Corporation, addressed to: Clearwater Marine Aquarium, Inc.
249 Windward Passage
Clearwater, FL 33767
Attn: David Yates, CEO
2) With Copy to:
R. Nathan Hightower, Esquire
P.O. Box 4376
Clearwater, Florida 33758
If to City, addressed to: City Manager
P. O. Box 4748
Clearwater, FL 33758-4748
With copy to:
City Attorney
P. O. Box 4748
Clearwater, FL 33758-4748
ARTICLE IV. EFFECTIVE DATE
The effective date of this Agreement shall be the date this Agreement is executed by all parties
hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this -1� day of
12011.
SIGNATURE PAGE CLEARWATER MARINE AQUARIUM DEED MODIFICATION AGREEMENT.
Countersigned: CITY OF CLEARWATER, FLORIDA
�-yz-- /// n4q���' -�L
Frank V. Hibbard William B. Horne II
Mayor City Manager
Approved as to form: Attest: e®�oFTNEc%
Pamela K. Akin Rosemarie Call -` cm
City Attorney City Clerk �►� �, �®
TIC
2
CLEARWATER MARINE AQUARIUM, INC.
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By:
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STATE OF FLORIDA
COUNTY OF PINELLAS
I HEREBY CERTIFY that before me personally appeared JOHN L. DRAHEIM, as
Chairman of CLEARWATER MARINE AQUARIUM, INC, a Florida non-profit corporation, to
me personally known or who has produced as identification and
known to me to be the person described in and who executed the foregoing instrument, and
acknowledged the execution thereof on behalf of the corporation.
WITNESS my hand and official seal at Clearwater, said County and State,this � =
day of
Notary Public
Print Name
My Commission Expires:
;00"Y 14 Notary Public State of Florida
Lida M White
c. My Commission EE005074
'�oFrtio+� Expires 07/20/2014
MODIFICATION OF DEED
The deed from City of Clearwater to Clearwater Marine Science Center, n/k/a
Clearwater Marine Aquarium, dated September 12, 1986 and recorded in Official Records
Book 6319, Page 799, conveying the property described as follows:
From the Southwesterly corner of Tract A of Unit 2, Island Estates of
Clearwater (Plat Book 47, pages 19A and 20, Public Records of Pinellas
County, Florida), run N 49° 23'41"W, along the Northerly right-of-way line of
Clearwater Causeway, 575.00 feet for a Point of Beginning; thence continue
N 49 023'41" W, along same line, 482.00 feet; thence run S 40°36'19" W,
147.50 feet along the outer face of a seawall; thence 94.26 feet along a
curve to the left, along said face, Radius 60.00 feet, internal angle 90°00'00";
thence S 49°23'41" E, 362.00 feet along said face; thence 94.26 feet along a
curve to the left, along said face, Radius 60.00 feet, internal angle 90°00'00";
thence N 40°36'19" E, 147.50 feet to the Point of Beginning. (the"Property")
Is hereby modified by amending Exhibit B to said deed as follows: (retaining the
non-exclusive easement described at Official Records Book 6319, Pages 802-803)
RESTRICTIONS AND LIMITATIONS
SUBJECT TO THE FOLLOWING:
The party of the second part and its successors and assigns shall devote the
use of the lands conveyed herein solely to the expansion of the Clearwater
Marine Aquarium, f/k/a Clearwater Marine Science Center facility, and if any
portion of the lands conveyed herein should ever be used for any purpose
other than a Marine Science Center, not for profit, the title of said lands
conveyed herein shall automatically revert to the City of Clearwater, subject
to any liens or encumbrances thereon. The City of Clearwater shall have the
option to satisfy any liens and encumbrances on said lands, but not the
obligation to do so.
ALSO SUBJECT TO THE FOLLOWING:
Neither the party of the second part nor its successors or assigns shall ever
permit the Property to be encumbered by any mortgage lien or other lien or
liens for any amount without the express authorization of the City. This
provision shall be a covenant running with the land, the breach of which shall
result in a reversion of the property to the City of Clearwater free and clear of
all liens and encumbrances except those authorized by the City of
Clearwater.
SUBJECT TO all covenants and restrictions of record, including an
easement deed in favor of Florida Power Corporation a recorded on July 12,
Exhibit B
1984, in Official Records Book 5801, page 2016, of the Public Records of
Pinellas County, Florida.
Countersigned: CITY OF CLEARWATER, FLORIDA
A - - --�
Frank V. Hibbard William B. Horne II
Mayor City Manager
OF
tyF
Approved as to form: Attest: �� �
Pamela K. Akin Rosemarie Call
City Attorney City Clerk FER
CLEARWATER MARINE AQUARIUM, INC.
By:
61n
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67e
Page 2 Exhibit B
STATE OF FLORIDA
COUNTY OF PINELLAS
I HEREBY CERTIFY that before me personally appeared JOHN L. DRAHEIM, as
Chairman of CLEARWATER MARINE AQUARIUM, INC, a Florida non-profit corporation, to
me personally known or who has produced as identification and
known to me to be the person described in and who executed the foregoing instrument, and
acknowledged the execution thereof on behalf of the corporation.
WITNESS my hand and official seal at Clearwater, said County and State,this \�
day of 2011.
Notary Public
Print Name
My Commission Expires:
Eo1� %,rr Notary public State of Florida
? Lida M White
9�. . My Commission EE005074
'for n.°°' Expires 07/20/2014
PREPARED BY:
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO: KEN BURKE,CLERK OF COURT
PINELLAS COUNTY FLORIDA
Branch Banking nd Trust Company T
9 SINS REC BK:173538PG1221fi8 2174 fi P,J'
28050 US Highway 19 N DOCType:AGM RECORDING: $61.00
Clearwater, Florida 33761 --
Attn. Chip Falk -
Space above for Recorder's Use
SUBORDINATION AGREEMENT
kd
This Agreement is made as of-Mareh I , 2011, by and among the City of Clearwater,
Florida ("City"), a municipal corporation under Florida law, Branch Banking and Trust Company("Bank"),
a North Carolina banking corporation having offices in the State of Florida, and Clearwater Marine
Aquarium, Inc. (formally known as Clearwater Marine Science Center, Inc., "Owner"), a Florida non-profit
corporation.
Factual Background
A. City executed a Deed of Conveyance (the "Deed") dated September 12, 1986, to
Owner granting and conveying the real property described in Exhibit A attached hereto (the"Property")to
Owner as more particularly described therein. The Deed was recorded on September 18, 1986 in the
Public Records of Pinellas County in 0.R. Book 6319, Page I a'� .
B. Owner has requested financing of$8,600,000 from Bank for improvements to the
Property and adjacent real property owned by Owner pursuant to tax-exempt financing established under
(i) a Loan Agreement dated as of December 1, 2010 between Owner and the Pinellas County Industrial
Development Authority, a political subdivision and body corporate and politic of the State of Florida
("Authority") and (ii) a Bond Purchase Agreement dated as of December 29, 2010 among Owner,
Authority.and Bank (the"Bond Purchase Agreement").
C. Bank has purchased Authority's$8,600,000 Revenue Bond (Clearwater Marine
Aquarium, Inc. Project), Series 2010 (the"Bond") pursuant to the terms of the Bond Purchase Agreement
and the proceeds of the Bond are to be used by the Owner for the improvements to the Property and
adjacent real property owned by the Owner.
D. Owner has guaranteed to Bank the full and prompt payment and performance by
Authority of all of Authority's obligations under the Bond pursuant to a Guaranty Agreement dated as of
December 1, 2010 (the"Guaranty Agreement") between Owner and Bank.
E. The Guaranty Agreement is secured by, among other things, a Mortgage of Real
Estate and Security Agreement dated as of December 1, 2010 and recorded in the Clerk of Court,
Pinellas County Florida in Official Records Book 17129, Page 1391 (as amended or supplemented from
time to time, including the amendment described below, the"Bank Security Instrument") covering real
property of Owner adjacent to the Property.
F. The Deed contains certain reversionary rights, restrictions and other limitations which
the Bank has requested be modified before the Bank extends the lien of the Bank's Security Instrument to
cover the Property. The City an OvYner have executed and recorded a Deed Modification Agreement
(the"Deed Modification") dated -L, 2011 and recorded in the Public Records of Pinellas County in
O.R. Book 7 S , Page , S' pursuant to which certain modifications have been made to the
reversionary rights, restrictions and limitations of the Deed. As used herein, the reversionary rights,
restrictions and limitations in the Deed, as modified by the Deed Modification, are herein referred to as
the"Restrictions and Limitations".
CHAR2\1298254v7
-1-
G. It is a condition to Bank providing the tax-exempt financing under the Bond to
Owner that the lien of the Bank Security Instrument shall be extended to cover the Property and that such
lien shall at all times be prior and senior to the Restrictions and Limitations.
H. Upon execution of this Agreement by the City, Owner will execute an amendment to
the Bank Security Instrument in favor of Bank encumbering the Property to secure the Bond, the
Guaranty Agreement and the Related Documents (as defined in the Guaranty Agreement) (collectively
the Bond, the Guaranty Agreement and the Related Documents are referred to herein as the"Secured
Obligations").
Agreement
Therefore, the parties agree as follows:
1. City hereby subordinates in favor of Bank the Restrictions and Limitations and does
hereby expressly acknowledge the priority of the liens and security interests of the Bank Security
Instrument over the Restrictions and Limitations and further agrees that the liens and security interests of
the Bank Security Instrument shall unconditionally be and remain at all times a lien or charge on the
Property prior and superior to the Restrictions and Limitations.
2. City understands that Bank would not purchase the Bond, advance proceeds of the
Bond to or for the benefit of the Owner or enter into the Secured Obligations without this Agreement and
that Bank is taking such actions in reliance upon, and in consideration of, the subordination and
agreements provided in this Agreement.
3. City agrees and acknowledges that the provisions of the Bank Security Instrument and
the Secured Obligations do not cause a default or violation on the part of the Owner under the Deed. City
consents to the execution, delivery and performance by the Owner of the Bank Security Instrument and
the grant of the liens and security interests under the Bank Security Instrument to secure the Secured
Obligations, as the same may be amended from time to time.
4. The Owner agrees to use the proceeds of the Bond to finance improvements to the
Property and adjacent real property owned by the Owner as provided in the Bond Purchase Agreement.
City agrees and acknowledges that Bank, in making disbursements of the proceeds of the Bond, is under
no obligation or duty to, nor has Bank represented that it will, see to the application of such proceeds by
the person or persons to whom Bank disburses such proceeds and any application or use of such
proceeds shall not defeat the subordination herein made in whole or in part.
5. City shall give Bank notice of any default by Owner under the Deed at the time such
notice is given to Owner, and agrees to deliver to Bank copies of all further notices to Owner relating to
such default.
6. As long as the Bond and the Secured Obligations are outstanding, City will not take
any action to enforce the Restrictions and Limitations on the Property against the Bank or its successors
and assigns, and the City will not sell or otherwise transfer its reversionary interest in the Property. The
Restrictions and Limitations shall continue in effect and be binding on the Owner and, in the event of a
default by the Owner under the Restrictions and Limitations, the City may enforce its remedies available
against the Owner for such default; provided that(x) the exercise of any such remedies shall be subject
and subordinate to the Secured Obligations and the Bank Security Instrument and (y)the reversionary
rights of the City shall be further subject to the following: the reversionary rights of the City shall not be
effective in any manner unless (i)the City has repaid or caused to be repaid the outstanding principal,
interest and other amounts owing to the Bank by the Owner under the Bond, the Guaranty Agreement
and Related Documents or(ii) the Bank has consented in writing to the reversion of the Property to the
City, such written consent to be effective when recorded in the Public Records of Pinellas County in which
the Deed is recorded.
CHAR2\1298254v7
-2-
a
7. Bank shall have the exclusive right to collect, foreclose upon, sell, transfer, liquidate
or otherwise dispose of any and all collateral for the Secured Obligations, including the Property, in the
manner deemed appropriate by Bank. City will not hinder Bank's actions in enforcing its remedies with
respect to such collateral. The City agrees that in the event of any foreclosure or deed in lieu of
foreclosure in connection with realization on the Property under the Bank Security Instrument, the
transferee of the Property shall take title to the Property free and clear of the Restrictions and Limitations.
8. Notwithstanding the above, in the event(i) a default by the Owner or its successors
and assigns occurs under the Bank Security Instrument which is not waived or cured to the satisfaction of
the Bank and (ii)following such default the Bank determines to commence action to foreclose on the
Property under the Bank Security Instrument or to request a deed in lieu of foreclosure from the Owner,
then the Bank shall provide the City with written notice of its determination to commence such action or
make such request(such notice a"Default Notice"). The City shall, for a period of sixty (60) days
following the date of delivery of the Default Notice, have the right to either(1) acquire from Bank or its
successors and assigns all of the Bank's right, title and interest in the Bond and Guaranty Agreement at a
purchase price equal to the outstanding balance of principal, interest and other amounts due under the
Bond and Guaranty Agreement on the date of such acquisition or(2) receive a deed in lieu of foreclosure
from the Owner(which the Owner, at the direction of the Bank, agrees to provide) upon payment by the
City to the Bank of a purchase price equal to the outstanding balance of principal, interest and other
amounts due under the Bond and Guaranty Agreement on the date of such deed in lieu of foreclosure to
be applied against such indebtedness. The rights of the City under this Section 8 shall terminate on the
date sixty(60) days following the delivery to the City of the Default Notice.
9. The Owner agrees that,without the prior written consent of the City, it will not grant
any other liens or encumbrances secured by the Property, other than the Bank Security Instrument. The
Bank agrees that(i) the Secured Obligations are not revolving obligations, (ii) no more than $8,600,000 in
principal will be advanced under the Secured Obligations (provided that, after a default under the Secured
Obligations, the Bank may advance additional amounts necessary to protect and preserve the Property
as provided by the Guaranty Agreement, the Bank Security Instrument and the Related Documents), and
(iii) that amounts repaid by the Owner on the Secured Obligations will not be re-advanced or re-loaned
by the Bank to the Owner.
10. City acknowledges that this Agreement shall extend to and benefit the successors,
assigns and transferees of Bank.
11. This Agreement constitutes the entire Agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter contained in this Agreement.
CHAR2\1298254v7
, 4
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year
first above written.
City:
Countersigned: CITY OF CLEARWATER, FLORIDA
fKw' By: �
Frank V. Hibbard William B. Horne II
Mayor City Manager
Approved as to form: Attest: oFpyF�
CIO
Pamela K.Akin Rosemarie Call
City Attorney City Clerk _
T
Bank: BRANCH BANKING AND TRUST COMPANY
By: t-
Name: l fi6P15S'o
Title VV
Owner: CLEARWATER MARINE AQUARIUM, INC.
By: ,
Nam o DL !ha t
Title: �Wa
CHAR2\1298254x7
-4-
COUNTY OF )
PERSONALLY appeared before me, the undersigned witness and made oath s/he saw the within-
named CITY OF CLEARWATER, FLORIDA, a Florida municipal corporatio , y
sign, seal and as its act and deed, deliver ithin-written instrument.
Witness
SWORN To and subscribed before me
This day of , 2011.
(SEAL)
Nota>P16ic for Florida D7 e =�R
STATE OF FLORIDA )
COUNTY OF"Pi Af-11 dS )
PERSONALLY appeared before me, the undersigned witness and made oath that s/he saw the within-
BRANCH BANKING AND TRUST C PANY, a North Carolina banking corporation, by
(, ,g,,� ,,�;, _P( President, sign, seal and as its act and deed,
deliver the within-written instrument.
Witness
SWORN To and subscribed before me
This day of �,4'1 2011.
(SEAL) "+•+++"' VICTORIA L.BRAY
Notary Public•State of Florida
Notary Public for Florida ?• ,•=My Comm.Expires Nov 16,2012
My Commission Expires: Commission#Ob 838545
Through National Notary Assn.
•.C_TATE-eF_FLe 1-CI.I"1 A
COUNTY OF )
PERSONALLY appeared before me, the undersigned witness and made oattrt at s/he saw the within-
named CLEARWATER MARINE AQUARIUM, INC., a Florida corporaiort'1y
sign, seal and as its act and deed, de've the within-written instrument.
Witness
SWORN To and subscribed before
This day of 12011.
(SEAL)
D Qt6r__y_P-ubGi�for-Flod
My Commission Expires:
CHAR2\1298254v7
-5-
STATE OF FLORIDA
COUNTY OF PINELLAS
I HEREBY CERTIFY that before me personally appeared JOHN L. DRAHEIM, as
Chairman of CLEARWATER MARINE AQUARIUM, INC, a Florida non-profit corporation, to
me Personall Inown or who has produced as identification and
known to me to be the person described in and who executed the foregoing instrument, and
acknowledged the execution thereof on behalf of the corporation.
WITNESS my hand and official seal at Clearwater, said County and State,this
day of , 2011.
Notary Public ,
Print Name
My Commission Expires:
='0,t5L�*fP9# Notary ublic State of Florida Whitemission EE005074 0712012014
EXHIBIT A
From the Southwesterly corner of Tract A of Unit 2, Island Estates of
Clearwater (Plat Book 47, pages 19A and 20, Public Records of Pinellas
County, Florida), run N 49° 23'41"W, along the Northerly right-of-way line of
Clearwater Causeway, 575.00 feet for a Point of Beginning; thence continue
N 49 023'41" W, along same line, 482.00 feet; thence run S 40°36'19" W,
147.50 feet along the outer face of a seawall; thence 94.26 feet along a
curve to the left, along said face, Radius 60.00 feet, internal angle 90°00'00";
thence S 49°23'41"E, 362.00 feet along said face; thence 94.26 feet along a
curve to the left, along said face, Radius 60.00 feet, internal angle 90°00'00";
thence N 40°36'19" E, 147.50 feet to the Point of Beginning. (the"Property")
C HAR2\1298254v7
EXHIBIT A
CHAR2\9298254v7
Pact Me.,
ALSO SUBJECT TO a non-exclusive case;nent which Is retained
Grantor over the fallowing described PxOPe Y
by the
for sidewfl notdnorea?hanutwenty-two n(22) Cnotor avehicles:
Of
parking
From the southwesterly corner of Tract A of Unit 2, island
Estates of Clearwater (Plat Book 47, pages 19A and 20,
Public Records of Pinellas County, Florida)runaf Clearwater
line
23141" W along the Northerly right-of--way
nng 11; thence
Causeway, 575.00 feet for a Point of Begn i
continue N 49°23'41" W Along same line, i
thence run S 40°36'19" W, 147.50 feet along the outer face
of a seawall; thence run 94.26 feet along a curve to the
left, along said face, Radius 60.00 feet, internal angle
90°00'00"1 thence run S 49°23'41" e, 362.00 feet along
said face; thence run 94.26 feet along a curverto tangle
left, along said face, Radius 60.00 feet. intnal
147.50 feet to the
90°OQ'00"; thence run N'40 36119 E,
Point'of Beginning 11; LESS AND EXCEPT the followingof
described tract: from the said Southwesterly corner
Tract A of Unit 2, SthenNorth erlyarigh t-ofwwayrlinenof °
N 49°23'4i" W slang
Clearwater Causeway, 575.00 feet; thence continue N 49
23141" W, along same line, 61.50 feet; thence run S 40°
36119" W, 20.00 feet for a Point of Beginning 312; thence
thence
run N 4902314111 W, 206.00 feet;
9.28 feet; thence run N 52°14'22" W, 16.73 feet; thence
run N 37°45'38" E, 10.12 feet; thence run N 49°23'41" W,
139.00 feet; thence run 5 40°36'19" W, 135.50 feet; thence
run 5 49°23'41" E,18..25 feet; thence run 5 40°'36'19" W;
35.50 feet; thence run S 49°23`41" E, 303.50 feet; thence
run N 40°36'19" E, 36.50 feet; thence run S 49°23'41" P,
30.00 feet; thence run N 40°36'19" E, 134.50 feet to the
Paint of Beginning 12;
TOGETHER WITH the right to attach piers and docks to the
seawall., and maintain the piers and docks.
The reverter provision set forth above has teen (included
as required by Chapter 66-345, Laws of Florida, Special
Acts of 1986, and is binding upon the party of the second
part and its successors and assigns.
9W'ly Cot. Tract A
UnH 2 Island E{Iales
OI Clearwoler
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40°36' 19"E 134,50'
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Exhibit A