THIS DOCUMENT PREPARED BY:
X. Xxxxxxx
XXXXXXX, XXXXXXXXXX & XXXXXX, P.A.
Post Office Box 231
Orlando, FL 32802-0231
(000) 000-0000
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THIS MORTGAGE SECURES THE REPAYMENT OF
NDUSTRIAL DEVELOPMENT REVENUE BONDS
ISSUED BY THE MORTGAGEE AND PURSUANT
TO CHAPTER 159, FLORIDA STATUTES, IS
EXEMPT FROM DOCUMENTARY STAMP TAX AND
INTANGIBLE TAX.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") made as of the
24th day of September, 1997, between ELXSI, a California corporation
("Mortgagor"), whose address is 0000 Xxx Xxxxx Xxx., Xxxxxxx, Xxxxxxx, and
ORANGE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a public body corporate and
politic and a public instrumentality duly created and existing under and by
virtue of the laws of the State of Florida, its successors and assigns
("Mortgagee") whose address is 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, Xxxxxxxxx is indebted to Mortgagee in the principal sum of Two
Million Five Hundred Thousand Dollars ($2,500,000.00), together with interest
thereon, pursuant to a promissory note in the principal amount of $2,500,000.00
executed by Xxxxxxxxx and delivered to Mortgagee, the final payment of which is
due on or before September 1, 2012 (the "Note"), which by reference is made a
part hereof to the same extent as though set out in full herein;
NOW, THEREFORE, (a) to secure the performance and observance by
Mortgagor of all covenants and conditions contained in the Note, including any
renewal, extension or modification thereof, and in this Mortgage and the other
Bond Documents (as used herein, such term shall have the meaning set forth in
the Loan Agreement referred to below); and (b) also in order to charge the
properties, interests and rights hereinafter described with such payment,
performance and observance; and (c) for and in consideration of the sum of One
and No/100 ($1.00) Dollar paid by Mortgagee to Mortgagor this date, and for
other valuable consideration, the receipt of which is acknowledged, Xxxxxxxxx
does hereby grant, bargain, sell, alien, remise, release, convey, assign,
transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and confirm
unto Mortgagee, its successors and assigns forever, all right, title and
interest of Xxxxxxxxx in and to:
THE MORTGAGED PROPERTY:
(B) THE LAND. All the land located in the County of Orange, State of
Florida (the "Land"), described in Exhibit A attached hereto and made a part
hereof.
(C) THE IMPROVEMENTS, THE PERSONALTY, EASEMENTS AND OTHER INTERESTS.
TOGETHER WITH all improvements of every nature whatsoever now or hereafter
situated on the Land and those rights and properties set forth and described in
Exhibit B attached hereto and made a part hereof.
(D) ASSIGNMENT OF RENTS. TOGETHER WITH all rents, royalties, issues,
profits, revenue, income and other benefits from the property described in
paragraphs (A) and (B) hereof to be applied against the indebtedness and other
sums secured hereby, provided, however, that permission is hereby given to
Mortgagor so long as no default has occurred hereunder, to collect, receive,
take, use and enjoy such rents, royalties, issues, profits, revenue, income and
other benefits as they become due and payable, but not in advance thereof. The
foregoing assignment shall be fully operative without any further action on the
part of either party and specifically Mortgagee shall be entitled, at its option
upon the occurrence of a default hereunder, to all rents, royalties, issues,
profits, revenue, income and other benefits from the property described in
paragraphs (A) and (B) hereof whether or not Mortgagee takes possession of the
property described in paragraphs (A) and (B) hereof. Upon any such default
hereunder, the permission hereby given to Mortgagor to collect such rents,
royalties, issues, profits, revenue, income and other benefits from the property
described in paragraphs (A) and (B) hereof shall terminate and such permission
shall not be reinstated upon a cure of the default without Mortgagee's specific
written consent. Neither the exercise of any rights under this paragraph by
Mortgagee nor the application of any such rents, royalties, issues, profits,
revenue, income or other benefits to the indebtedness and other sums secured
hereby, shall cure or waive any default or notice of default hereunder or
invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
This instrument constitutes an absolute and present assignment of the
rents, royalties, issues, profits, revenue, income and other benefits from the
Mortgaged Property, subject, however, to the conditional permission given to
Mortgagor to collect, receive, take, use and enjoy the same as provided
hereinabove; provided, further, that the existence or exercise of such right of
Mortgagor shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, by Mortgagor, and any such subsequent
assignment by Mortgagor shall be subject to the rights of Mortgagee hereunder.
Everything referred to in paragraphs (A), (B) and (C) hereof and any
additional property hereafter acquired by Xxxxxxxxx and subject to the lien of
this Mortgage or intended to be so is herein referred to as the "Mortgaged
Property."
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TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns, to its own proper use and benefit
forever, subject, however, to the terms and conditions herein;
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or cause to be
paid to Mortgagee the principal of, interest on and all other amounts payable
under the Note, this Mortgage and the other Bond Documents at the times and in
the manner stipulated in the Note, this Mortgage and such other Bond Documents,
all without any deduction or credit for taxes or other similar charges paid by
Mortgagor, and shall keep, perform and observe all the covenants and premises in
the Note, and any renewal, extension or modification thereof, and in this
Mortgage and the other Bond Documents, and in any amendments or supplements
thereto, to be kept, performed or observed by Mortgagor, then this Mortgage, and
all the properties, interest and rights hereby granted, conveyed and assigned
shall cease and be void, but shall otherwise remain in full force and effect.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE I
COVENANTS OF MORTGAGOR
Section I.1 Performance of Note, Mortgage, etc. Mortgagor shall perform,
observe and comply with all provisions of the Note, and any renewal, extension
or modification thereof and of this Mortgage and every other instrument securing
the Note, and any and all amendments or supplements thereto, and will promptly
pay to Mortgagee the principal with interest thereon and all other sums required
to be paid by Mortgagor under the Note and pursuant to the provisions of this
Mortgage and of every other instrument securing the Note when payment shall
become due, all without deduction or credit for taxes or other similar charges
paid by Xxxxxxxxx.
Section I.2 Performance of Loan Agreement. Xxxxxxxxx shall perform,
observe and comply with all provisions of that certain Loan Agreement between
Mortgagor and Mortgagee of even date herewith, and any and all amendments and
supplements thereto (the "Loan Agreement," the capitalized terms used herein and
not otherwise defined having the meanings given to such terms in said Loan
Agreement).
Section I.3 Performance of Indenture. Mortgagor shall perform, observe
and comply with all provisions of the Indenture, and any and all amendments and
supplements thereto, to the extent the provisions thereof are applicable to
Mortgagor or describe performance, observance or compliance by Mortgagor.
Section I.4 Performance of Other Bond Documents. Mortgagor shall
perform, observe and comply with all provisions of each and all of the other
Bond Documents, and any and all amendments and supplements thereto, to the
extent the provisions thereof are applicable to Mortgagor or describe
performance, observance or compliance by Mortgagor.
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Section I.5 Warranty of Title. Mortgagor covenants and warrants that it
is seized of an indefeasible estate in fee simple in the Land and real property
hereby mortgaged, is the owner of the personal property in which a security
interest is granted hereunder and has good right, full power and lawful
authority to convey, mortgage and encumber the same as provided herein; that
Mortgagee may at all times peaceably and quietly enter upon, hold, occupy and
enjoy the Land and real property hereby mortgaged and every part thereof; that
the Land and real property and the personal property in which a security
interest is granted hereunder is or will be free and clear of all liens,
security interests, charges and encumbrances whatsoever, except for the lien for
property taxes not yet due and payable and those Permitted Encumbrances, if any,
as defined and described in the Loan Agreement. Mortgagor shall and will make
such further assurances to perfect Mortgagee's fee simple title to the Land and
the real property hereby mortgaged, and the title to the personal property
hereby mortgaged or made subject to the security interest hereby created as may
reasonably be required. Xxxxxxxxx fully warrants the title to the Land and real
property and the personal property in which a security interest is granted
hereunder and will forever defend the same against the claims of all persons
whomsoever claiming.
Section I.6 Zoning and Environmental Laws.
(1) Mortgagor represents, covenants and warrants that all
applicable zoning laws, ordinances and regulations affecting the Land permit the
use and occupancy of the Plant as a manufacturing facility.
(2) For purposes of this Mortgage, "Hazardous Materials" shall
mean all hazardous and toxic substances, wastes or materials, all pollutants or
contaminants, asbestos, or other similar substances and all raw materials
containing such substances which are regulated under any Environmental Law and
includes, but is not limited to, all petroleum based substances such as gasoline
and oil based products. As such, reference to "Hazardous Materials" is not
limited to substances which are of necessity "hazardous or toxic" but includes
any substances regulated under any local, state or federal law whether or not
those substances are "hazardous or toxic". For purposes of this Mortgage,
"Environmental Laws" shall mean all applicable environmental laws, rules and
regulations whether federal, state or local including, without limitation, the
Federal Resource Conservation and Recovery Act and the Comprehensive
Environmental Response Compensation and Liability of 1980 and all amendments and
supplements thereto. With respect to Hazardous Materials, Mortgagor represents,
warrants and covenants as follows:
(1) Neither Mortgagor nor, to the best knowledge
of Mortgagor after due inquiry, any other
Person has ever caused or permitted any
Hazardous Materials to be placed, held,
located or disposed of on, under or at the
Land or any part thereof, nor has the Land or
any part thereof ever been used (whether by
the Mortgagor or, to the best knowledge of the
Mortgagor after due inquiry, by any Person) as
a dump site or storage site (whether permanent
or temporary) for any
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Hazardous Materials; or (ii) Mortgagor has
fully disclosed to Mortgagee in writing the
existence, extent and nature of any Hazardous
Materials, which Mortgagor is legally
authorized and empowered to maintain on, in or
under the Land or used in connection
therewith, and Xxxxxxxxx has obtained and will
maintain all licenses, permits and approvals
required with respect thereto, and is in full
compliance with all of the terms, conditions
and requirements of such licenses, permits and
approvals;
(2) The Land is now, and at all times hereafter
will continue to be, in full compliance with
all Environmental Laws;
(3) Mortgagor hereby agrees to indemnify Mortgagee
and hold the Mortgagee harmless from and
against any and all losses, liabilities,
judgments, damages, penalties, fines, liens,
suits, injuries, costs (including clean-up
costs), expenses (including attorneys',
consultants' or experts' fees and expenses)
and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted
against Mortgagee for, with respect to, or as
a direct or indirect result of, (i) the
presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission,
discharging or release from, the Land of any
Hazardous Materials (including, without
limitation, any losses, liabilities,
judgments, damages, penalties, fines, liens,
suits, injuries, costs (including clean-up
costs), expenses (including attorneys',
consultants' or experts' fees and expenses or
claims asserted or arising under any
Environmental Laws which may require the
elimination or removal of such Hazardous
Materials by Mortgagor, Mortgagee or any
successors or assigns thereof), regardless of
whether or not caused by, or within the
control of, Mortgagor or (ii) any
representation or warranty by Mortgagor
contained in this Section 1.6(b) being false
or untrue in any material respect;
(4) If Mortgagor receives any notice of (i) the
happening of any event involving the
generation, use, spill, discharge or storage,
disposal or cleanup of any Hazardous Materials
(a "Hazardous Discharge") affecting Mortgagor
or the Land or (ii) any complaint, order,
citation or notice with regard to air
emissions, water discharges, surface
contaminations, noise emissions or any other
environmental, health or safety matter
affecting Mortgagor or the Land (an
"Environmental Complaint") from any Person,
including, without limitation, the United
States Environmental Protection ("EPA") or any
agency, department or authority of the State
of Florida, then Mortgagor will give, within
seven (7) Business Days, oral and written
notice of same
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to Mortgagee. Mortgagor will also give
Mortgagee oral and written notice of any
change in the nature or extent of any
Hazardous Materials maintained on, in or under
the Land within seven (7) Business Days of
such change;
(5) Without limitation of Mortgagee's rights under
this Mortgage, Mortgagee shall have the right,
but not the obligation, to enter onto the Land
or to take such other actions as it deems
necessary or advisable to cleanup, remove,
resolve or minimize the impact of, or
otherwise deal with, or participate in such
actions with respect to any such Hazardous
Discharge or Environmental Complaint upon its
receipt of any notice from any Person,
including, without limitation, the EPA,
asserting the existence of any Hazardous
Discharge or Environmental Complaint on or
pertaining to the Land which, if true, could
result in an order, suit or other action
against Mortgagor affecting any part of the
Land by any governmental agency or otherwise
which, in the sole opinion of Mortgagee, could
jeopardize Mortgagee's security under this
Mortgage. All reasonable costs and expenses
incurred by Mortgagee in the exercise of any
such rights shall be secured by this Mortgage
and shall be payable by Mortgagor upon demand,
together with interest thereon at a rate equal
to the Overdue Rate.
(3) Mortgagor shall indemnify and hold Mortgagee, the Trustee and
each Bondholder harmless from and against all claims, damages, losses, costs and
expenses resulting from a violation of the covenants contained in this Section
1.6 or as a result of a violation by Mortgagor of any federal or similar state
law relating to Hazardous Materials, which indemnification shall survive Payment
of the Bonds (as defined in the Loan Agreement) and cancellation of this
Mortgage.
(4) The provisions of this Section 1.6 shall be in addition to and
not in derogation of the Environmental Agreement; provided, however, to the
extent of any conflict between the provisions of this Section 1.6 and the
provisions of the Environmental Agreement, Mortgagee and the Bondholder shall be
entitled to elect, in its sole discretion, which provisions shall control.
Section I.7 Taxes and Liens.
(1) Subject to any right of contest granted under the Loan
Agreement, Xxxxxxxxx shall pay or bond promptly, when and as due, and shall
promptly, upon request by Mortgagee, exhibit to Mortgagee receipts for the
payment of all taxes, assessments, rates, dues, charges, fees, levies, fines,
impositions, liabilities, obligations and encumbrances of every kind whatsoever
now or hereafter imposed, levied or assessed upon or against the Mortgaged
Property or any part thereof, or upon or against this Mortgage or the
indebtedness or other sums secured
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hereby, or upon or against the interest of Mortgagee in the Mortgaged Property,
as well as all income taxes, assessments and other governmental charges levied
and imposed by the United States of America or any state, county, municipality,
borough or other taxing authority upon or against Mortgagor or in respect of the
Mortgaged Property or any part thereof, and any charge which, if unpaid, would
become a lien or charge upon the Mortgaged Property prior to or equal to the
lien of this Mortgage before they become delinquent and before any interest
attaches or any penalty is incurred.
(2) Subject to any right of contest granted under the Loan
Agreement, Xxxxxxxxx shall not permit or suffer for more than sixty (60) days
any mechanics', laborers', materialmen's, statutory or other lien upon any of
the Mortgaged Property.
(3) If an Event of Default shall occur and shall not have been
waived, Mortgagee may require Mortgagor to deposit with Mortgagee on the first
day of each month, in addition to making any required payments of principal and
interest, until the Note is fully paid, an amount equal to one-twelfth (1/12) of
the yearly taxes and assessments as estimated by Mortgagee to be sufficient to
enable Mortgagee to pay at least thirty (30) days before they become due all
taxes, assessments and other similar charges against the Mortgaged Property or
any part thereof. Such deposits shall not be, nor be deemed to be, trust funds,
but may be commingled with the general funds of Mortgagee, and no interest,
shall be payable in respect thereof. Upon demand by Mortgagee, Mortgagor shall
deliver to Mortgagee such additional monies as are required to make up any
deficiencies in the amounts necessary to enable Mortgagee to pay such taxes,
assessments and similar charges. In the event of a default under any of the
terms, covenants and conditions of the Note, this Mortgage or any of the other
Bond Documents to be kept, performed or observed by Mortgagor, Mortgagee may
apply to the reduction of the sums secured hereby, in such manner as Mortgagee
shall determine, any amount held by Mortgagee under this Section 1.7(c).
(4) Mortgagor shall not claim, demand or be entitled to receive
any credit or credits on the principal or interest payable under the terms of
the Note or on any other sums secured hereby, for so much of the taxes,
assessments or similar impositions assessed against the Mortgaged Property or
any part thereof as are applicable to the indebtedness secured hereby or to
Mortgagee's interest in the Mortgaged Property. No deduction shall be claimed
from the taxable value of the Mortgaged Property or any part thereof by reason
of the Note, this Mortgage or any other instrument securing the Note.
Section I.8 Eminent Domain. Unless the Mortgagor shall have prepaid the
Note pursuant to the provisions of the Loan Agreement, in the event that title
to, or the temporary use of, the Mortgaged Property or any part thereof shall be
taken pursuant to eminent domain or condemnation proceedings, or any voluntary
conveyance of any part of the Mortgaged Property during the pendency of, or as a
result of a threat of, such proceedings ("Eminent Domain"), the Mortgagor shall
be obligated to continue to make the payments required to be made pursuant to
the Note and the gross proceeds from such proceeds, award or other amount, less
all expenses (including attorneys' fees) incurred in the realization thereof
("Net Proceeds") received as a result
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of such Eminent Domain shall be paid to the Trustee and applied as follows:
(1) If the amount of the Net Proceeds does not exceed $50,000.00,
the Net Proceeds shall be paid to the Mortgagor and shall be applied to the
repair, replacement, renewal or improvement of the Mortgaged Property as
necessary.
(2) If the amount of the Net Proceeds exceeds $50,000.00, the Net
Proceeds shall be paid to and held by the Trustee as a special account in the
Project Fund and invested in accordance with Section 602 of the Indenture
pending receipt of written instructions from the Mortgagor. At the option of the
Mortgagor, to be exercised within the period of ninety (90) days from the
receipt by the Trustee of such Net Proceeds, the Mortgagor shall advise the
Trustee that (A) the Mortgagor will use the Net Proceeds for the repair,
replacement, renewal or improvement of the Mortgaged Property (such funds to
remain with the Trustee and to be drawn down by the Mortgagor as provided in the
Indenture in the case of withdrawals from the Project Fund), or (B) the Net
Proceeds shall be applied to the prepayment of the Bonds as provided in Article
X of the Loan Agreement. If the Mortgagor does not advise the Trustee within
said period of ninety (90) days that it elects to proceed under clause (A) to
use such Net Proceeds for the repair, replacement, renewal or improvement of the
Mortgaged Property, such Net Proceeds shall be applied to the prepayment of the
Bonds pursuant to Article X of the Loan Agreement. Any prepayment pursuant to
the preceding sentence shall be effected on the next interest payment date not
less than thirty (30) days after the expiration of said period of ninety (90)
days without an election by the Mortgagor.
The Mortgagor agrees that if it shall elect to use the moneys paid to
the Trustee pursuant to paragraph (b) of this Section 1.8 for the repair,
replacement, renewal or improvement of the Mortgaged Property, it will restore
the Mortgaged Property, or cause the same to be done, to a condition
substantially equivalent to its condition prior to the occurrence of the event
to which the Net Proceeds were attributable. To the extent that the Net Proceeds
are not sufficient to restore or replace the Mortgaged Property, the Mortgagor
shall use its own funds to restore or replace the Mortgaged Property. Prior to
the commencement of such work, the Trustee may require the Mortgagor to furnish
a completion bond, escrow deposit or other satisfactory evidence of the
Mortgagor's ability to pay or provide for the payment of any estimated costs in
excess of the amount of the Net Proceeds. Any balance remaining after any such
application of such Net Proceeds shall be paid to the Mortgagor. The Mortgagor
shall be entitled to the Net Proceeds of any insurance proceeds resulting from
Eminent Domain relating to property of the Borrower not included in the
Mortgaged Property and not providing security for the Note.
In case of a taking or proposed taking of all or any part of the
Mortgaged Property or any right therein by Eminent Domain, the Mortgagor shall
give prompt notice thereof to the Mortgagee. Each such notice shall describe
generally the nature and extent of such taking, loss, proceeding or
negotiations.
Section I.9 Care of Property.
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(1) Mortgagor shall preserve and maintain the Mortgaged Property
in good condition and repair. Mortgagor shall not remove, demolish, alter or
change the use of any building, structure or other improvement presently or
hereafter on the Land without the prior written consent of Mortgagee, except as
provided in the Loan Agreement. Mortgagor shall not permit, commit or suffer any
waste, impairment or deterioration of the Mortgaged Property or of any part
thereof, and will not take any action which will increase the risk of fire or
other hazard to the Mortgaged Property or to any part thereof.
(2) Except as otherwise provided in this Mortgage or the Loan
Agreement, no fixture or other part of the Mortgaged Property shall be removed,
demolished or altered, without the prior written consent of the Bondholder.
(3) Mortgagee may enter upon and inspect the Mortgaged Property at
any reasonable time during the life of this Mortgage.
(4) Mortgagor will promptly comply with all present and future
laws, ordinances, rules and regulations of any governmental authority affecting
the Mortgaged Property or any part thereof.
(5) If all or any part of the Mortgaged Property shall be lost,
damaged or destroyed by fire or any other cause, Mortgagor will give immediate
written notice thereof to Mortgagee and the Bondholder and, subject to the terms
of the Loan Agreement, shall promptly restore the Mortgaged Property to the
equivalent of its original condition regardless of whether or not there shall be
any insurance proceeds therefor. Subject to the terms of the Loan Agreement, if
a part of the Mortgaged Property shall be lost, physically damaged or destroyed
through condemnation, Xxxxxxxxx will promptly restore, repair or alter the
remaining property in a manner satisfactory to Mortgagee.
Section I.10 Transfer of Property. Mortgagor shall not sell, convey,
transfer, lease or further encumber any interest in all or any part of the
Mortgaged Property, except as provided in the Loan Agreement, without the prior
written consent of Mortgagee.
Section I.11 Further Assurances. At any time and from time to time,
upon Mortgagee's request, Xxxxxxxxx shall make, execute and deliver or cause to
be made, executed and delivered to Mortgagee and, from time to time thereafter
to be rerecorded or refiled at such time and in such offices and places as shall
be deemed desirable by Mortgagee any and all such further mortgages, instruments
of further assurance, certificates and other documents as Mortgagee may consider
necessary or desirable in order to effectuate, complete, enlarge in accordance
with the Loan Agreement or perfect, or to continue and preserve the obligations
of Mortgagor under the Note and this Mortgage, and the lien of this Mortgage as
a first and prior lien upon all of the Mortgaged Property, whether now owned or
hereafter acquired by Mortgagor. Upon any failure by Xxxxxxxxx to do so,
Mortgagee may, at the expense of the Mortgagor, make, execute, record, file,
rerecord or refile any and all such mortgages, instruments, financing
statements, certificates and documents for and in the name of Xxxxxxxxx, and
Xxxxxxxxx hereby irrevocably appoints
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Mortgagee the agent and attorney-in-fact of Mortgagor to do so which agency
shall be deemed coupled with an interest and irrevocable.
Section I.12 Leases Affecting Mortgaged Property. Mortgagor shall
comply with and observe its obligations as landlord under all leases affecting
the Mortgaged Property or any part thereof. Mortgagor, if required by Mortgagee,
shall furnish promptly to Mortgagee executed copies of all such leases now
existing or hereafter created, all of which shall be in form and substance
satisfactory to the Mortgagee. Mortgagor shall not, except as provided in the
Loan Agreement, without the express written consent of Mortgagee, amend, modify,
surrender, terminate or extend any such lease now existing or hereafter created,
or permit or suffer an assignment or sublease. Mortgagor shall not accept
payment of rent more than one (1) month in advance without the prior written
consent of Mortgagee.
Section I.13 Expenses. Mortgagor shall pay or reimburse Mortgagee for
all costs, charges and expenses, including reasonable attorney's fees and
disbursements, and costs incurred or paid by Mortgagee in any action which is
threatened, pending or completed (and any rehearing or retrial in connection
with or appeal from any such action) or proceeding or dispute in which Mortgagee
is or might be made a party in interest or appears as a party plaintiff or party
defendant and which affects or might affect the Note, or the Mortgaged Property
or any part thereof, or the interests of Mortgagor or Mortgagee therein,
including but not limited to, the foreclosure of this Mortgage, condemnation or
bankruptcy involving all or part of the Mortgaged Property or any action to
protect the security hereof. All costs, charges and expenses (except where
Mortgagor and Mortgagee are adverse parties) so incurred or paid by Mortgagee,
unless awarded by the Court, shall become due and payable immediately, whether
or not there be notice, demand, attempt to collect or suit pending. The amounts
so incurred or paid by Mortgagee, together with interest thereon at the Overdue
Rate until paid by Xxxxxxxxx, shall be deemed Administrative Expenses and shall
be added to the indebtedness and secured by the lien of this Mortgage.
Section I.14 Mortgagee's Performance of Defaults. If Mortgagor defaults
in the payment of any tax, assessment, encumbrance or other imposition, in its
obligation to furnish insurance hereunder or in the performance or observance of
any other covenant, condition or term in this Mortgage or in any other
instrument securing the Note, Mortgagee may at its option perform or observe the
same, and all payments made (whether such payments are regular or accelerated
payments) and costs and expenses incurred or paid by Mortgagee in connection
therewith shall become due and payable immediately by Mortgagor. The amounts so
incurred or paid by Mortgagee, together with interest thereon at the Overdue
Rate from the date incurred until paid by Xxxxxxxxx, shall be added to the
indebtedness and secured by the lien of this Mortgage. Nothing contained herein
shall be construed as requiring Mortgagee to advance or expend monies for any
purposes mentioned in this paragraph, or for any other purpose. Mortgagee is
hereby empowered to enter and to authorize others to enter upon the Mortgaged
Property or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or terms, without thereby becoming liable to
Mortgagor or any Person in possession holding under Xxxxxxxxx.
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Section I.15 Books and Records. Mortgagor shall keep and maintain at
all times complete, true and accurate books of accounts and records reflecting
the results of the operation of the Mortgaged Property. Mortgagor shall furnish
to Mortgagee financial statements and other financial information in accordance
with and at the times required by the terms of the Loan Agreement. Mortgagor
shall permit Mortgagee to inspect said books and records in accordance with the
terms of the Loan Agreement.
Section I.16 Estoppel Affidavits. Mortgagor, within ten (10) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of and interest on the Note,
and any other unpaid sums secured hereby, and whether or not any offsets or
defenses exist against such principal and interest or other sums.
Section I.17 Security Agreement. With respect to any portion of the
Mortgaged Property which constitutes personal property, fixtures or other
property governed by the Uniform Commercial Code as adopted in the State of
Florida ("UCC"), this Mortgage shall constitute a security agreement between
Mortgagor as the Debtor and Mortgagee as the Secured Party, and Mortgagor hereby
grants to Mortgagee a security interest in such portion of the Mortgaged
Property and all cash or non-cash proceeds thereof (including insurance
proceeds). Cumulative of all other rights of Mortgagee hereunder, Mortgagee
shall have all of the rights conferred upon secured parties by the UCC. Upon
request of Mortgagee, Mortgagor shall, at its expense, assemble such property
and make it available to Mortgagee at a convenient place acceptable to
Mortgagee. Xxxxxxxxx will execute and deliver to Mortgagee all financing
statements that may from time to time be required by Mortgagee to establish and
maintain the validity and priority of the security interest of Mortgagee, or any
modification thereof, and pay all costs and expenses of any searches reasonably
required by Mortgagee. Mortgagee may exercise any or all of the remedies of a
secured party available to it under the UCC with respect to such property, and
it is expressly agreed that if upon an Event of Default Mortgagee should proceed
to seize, take possession of and dispose of such property in accordance with the
provisions of the UCC or other applicable law, ten (10) days' notice by
Mortgagee to Mortgagor shall be deemed to be reasonable notice under any
provision of the UCC or other applicable law requiring such notice; provided,
however, that Mortgagee may at its option dispose of such property in accordance
with Mortgagee's rights and remedies with respect to the real property pursuant
to the provisions of this Mortgage, in lieu of proceeding under the UCC or other
applicable law.
ARTICLE II
DEFAULTS
Section II.1 Event of Default. The term "Event of Default," wherever
used in this Mortgage, shall mean any one or more of the following events (each
of which shall be and constitute a default hereunder):
(1) Occurrence of an "Event of Default" or a default or an event
of default under
11
the Loan Agreement or the Indenture.
(2) Failure by Xxxxxxxxx to duly keep, perform and observe any
covenant, condition or agreement in this Mortgage, which failure is not cured by
Mortgagor within thirty (30) days after written notice of the same is delivered
by Mortgagee to Mortgagor.
(3) Default by Mortgagor under any agreement, document or
instrument securing any other indebtedness of Mortgagor to Mortgagee, if such
default is not cured within any grace period permitted therein and if such
default permits the holder to cause such obligation to become due prior to its
stated maturity. Mortgagor shall notify Mortgagee in writing of the occurrence
of such default, specifying the nature of such default.
(4) Material breach of any warranty or covenant or material
untruth of any representation of Mortgagor contained in this Mortgage.
Section II.2 Acceleration of Maturity. If an Event of Default shall
have occurred, Mortgagee may (with the prior written direction of the
Bondholder) declare the outstanding principal amount of the Note and the
interest accrued thereon, and all other sums secured hereby, to be due and
payable immediately, and upon such declaration such principal and interest and
other sums shall immediately become and be due and payable without demand or
notice.
Section II.3 Mortgagee's Power of Enforcement. If an Event of Default
shall have occurred, Mortgagee 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 of the performance of any term hereof or any other right;
(b) to foreclose this Mortgage and to sell, as an entirety or in separate lots
or parcels, the Mortgaged Property, under the judgment or decree of a court or
courts of competent jurisdiction; and (c) to pursue any other remedy available
to it. Mortgagee shall take action either by such proceedings or by the exercise
of its powers with respect to entry or taking possession, or both, as the
Mortgagee may determine. In the event the Mortgaged Property is comprised of
more than one parcel of real property, Mortgagor hereby waives any right to
require Mortgagee to foreclose or exercise any of its other remedies against all
of the Mortgaged Property as a whole or to require Mortgagee to foreclose or
exercise such remedies against one portion of the Mortgaged Property prior to
the foreclosure or exercise of said remedies against other portions of the
Mortgaged Property.
Section II.4 Mortgagee's Right to Enter and Take Possession, Operate
and Apply Income.
(1) If an Event of Default shall have occurred, Mortgagor, upon
demand of Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of the Mortgaged Property, and if and to the extent permitted by law,
Mortgagee itself, or by such officers or agents as it may appoint, may enter and
take possession of all the Mortgaged Property, and may exclude Mortgagor and its
agents and employees wholly therefrom and may have joint access with
12
Mortgagor to the books, papers and accounts of Xxxxxxxxx.
(2) If Mortgagor shall for any reason fail to surrender or deliver
the Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee
may obtain a judgment or decree conferring on Mortgagee the right to immediate
possession or requiring Mortgagor to deliver immediate possession of all or part
of the Mortgaged Property to Mortgagee along with all books, papers and accounts
of Mortgagor, to the entry of which judgment or decree Mortgagor hereby
specifically consents.
Section II.5 Mortgagor shall pay to Mortgagee, upon demand, all
reasonable costs and expenses of obtaining such judgment or decree and
reasonable compensation to Mortgagee, its attorneys and agents, and all such
costs, expenses and compensation shall, until paid, be secured by the lien of
this Mortgage.
(1) Upon every such entering upon or taking of possession,
Mortgagee may hold, store, use, operate, manage and control the Mortgaged
Property and conduct the business thereof, and, from time to time:
(1) 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;
(2) insure or keep the Mortgaged Property insured;
(3) manage and operate the Mortgaged Property and
exercise all the rights and powers of
Mortgagor in its name or otherwise, with
respect to the same; and
(4) enter into agreements with others to exercise
the powers herein granted Mortgagee;
all as Mortgagee in its reasonable judgment from time to time may determine; and
Mortgagee 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 shall apply the monies so received by Mortgagee in such priority
as Mortgagee may determine to (A) the reasonable compensation, expenses and
disbursements of the agents and attorneys; (B) the cost of insurance, taxes,
assessments and other proper charges upon the Mortgaged Property or any part
thereof; (C) the deposits for taxes and assessments and insurance premiums due;
and (D) the payment of accrued interest and then principal on the Note.
Mortgagee shall surrender possession of the Mortgaged Property to
Mortgagor only when all that is due upon such interest, tax and insurance
deposits and principal installments, and under any of the terms of this
Mortgage, shall have been paid and all defaults made good. The same
13
right of taking possession, however, shall exist if any subsequent Event of
Default shall occur and not be waived.
Section II.6 Leases. Mortgagee, at its option, is authorized to
foreclose this Mortgage, and the failure to make any tenants party defendant to
any such foreclosure proceedings and to foreclose their rights will not be, nor
be asserted by Mortgagor to be, a defense to any proceedings instituted by
Mortgagee to collect the sums secured hereby or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Property.
Section II.7 Purchase by Mortgagee. Upon any such foreclosure sale,
Mortgagee may bid for and purchase the Mortgaged Property and, upon compliance
with the terms of sale, may hold, retain and possess and dispose of such
property in its own absolute right without further accountability.
Section II.8 Application of Indebtedness Toward Purchase Price. Upon
any such foreclosure sale, Mortgagee may, if permitted by law, after allowing
for the proportion of the total purchase price required to be paid in cash and
for the costs and expenses of the sale, compensation and other charges, in
paying the purchase price apply any portion of or all sums due to Mortgagee
under the Note, this Mortgage or any of the other Bond Documents, in lieu of
cash, to the amount which shall, upon distribution of the net proceeds of such
sale, be payable thereon.
Section II.9 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor agrees to the full extent permitted by law that in
case of a default on its part hereunder, neither Xxxxxxxxx nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now or hereafter in
force, in order to prevent or hinder the enforcement of foreclosure of this
Mortgage, or the absolute sale of the Mortgaged Property or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchaser thereat, and Mortgagor, for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising the Mortgaged Property marshalled upon any foreclosure of the lien
hereof and agrees that Mortgagee or any court having jurisdiction to foreclose
such lien may sell the Mortgaged Property in part or as an entirety.
Section II.10 Receiver. If an Event of Default shall have occurred,
Mortgagee, to the extent permitted by law and without regard to the value or
occupancy of the security or the solvency of the Borrower, shall be entitled as
a matter of strict right if it so elects to the appointment of a receiver to
enter upon and take possession of the Mortgaged Property and to collect all
rents, revenues, issues, income, products and profits thereof and apply the same
as the court may direct. The receiver shall have all rights and powers permitted
under the laws of the state where the Land is located and such other powers as
the court making such appointment shall confer. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Mortgage. The
right to enter and take possession of and to manage and operate the Mortgaged
Property, and to collect
14
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 concurrently therewith or independently thereof. Mortgagee shall be
liable to account only for such rents, issues and profits actually received by
Mortgagee, whether received pursuant to this Section or Section 2.3 hereof.
Notwithstanding the appointment of any receiver or other custodian, Mortgagee
shall be entitled as secured party hereunder to the possession and control of
any cash, deposits, or instruments at the time held by, or payable or
deliverable under the terms of this Mortgage to, Mortgagee.
Section II.11 Suits to Protect the Mortgaged Property. Mortgagee shall
have the power and authority to institute and maintain any suits and proceedings
as Mortgagee may deem advisable (a) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or any violation of this Mortgage,
(b) to preserve or protect its interest in the Mortgaged Property, 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
might impair the security hereunder or be prejudicial to Mortgagee's interest.
Section II.12 Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings affecting Mortgagor, any Person guaranteeing or
endorsing any of Mortgagor's obligations, its creditors or its property,
Mortgagee, 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
its claims allowed in such proceedings for the entire amount due and payable by
Mortgagor under the Note, this Mortgage and any other instrument securing the
Note, at the date of the institution of such proceedings, and for any additional
amounts which may become due and payable by Mortgagor after such date.
Section II.13 Mortgagor to Pay the Note on Any Default in Payment;
Application of Monies by Mortgagee.
(1) If default shall be made in the payment of any amount due
under the Note, this Mortgage or any other instrument securing the Note, then,
upon Mortgagee's demand, Mortgagor will pay to Mortgagee the whole amount due
and payable under the Note and all other sums secured hereby; and if Mortgagor
shall fail to pay the same forthwith upon such demand, Mortgagee shall be
entitled to sue for and to recover judgment for the whole amount so due and
unpaid together with costs and expenses including the reasonable compensation,
expenses and disbursements of Mortgagee's agents and attorneys incurred in
connection with such suit and any appeal in connection therewith. Mortgagee
shall be entitled to sue and recover judgment as aforesaid either before, after
or during the pendency of any proceedings for the enforcement of this Mortgage,
and the right of Mortgagee to recover such judgment shall not be affected by any
taking, 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 hereof.
15
(2) In case of a foreclosure sale of all or any part of the
Mortgaged Property and of the application of the proceeds of sale to the payment
of the sums secured hereby, Mortgagee shall be entitled to enforce payment of
and to receive all amounts then remaining due and unpaid and to recover judgment
for any portion thereof remaining unpaid, with interest.
(3) Xxxxxxxxx hereby agrees, to the extent permitted by law, that
no recovery of any such judgment by Xxxxxxxxx and no attachment or levy or any
execution upon any of the Mortgaged Property or any other property shall in any
way affect the lien of this Mortgage upon the Mortgaged Property or any part
thereof or any lien, rights, powers or remedies of Mortgagee hereunder, but such
lien, rights, powers and remedies shall continue unimpaired as before.
(4) Any monies collected or received by Mortgagee under this
Section 2.13 shall be applied in the manner provided in the Trust Indenture.
Section II.14 Delay or Omission No Waiver. No delay or omission of
Mortgagee or of any holder of the Note to exercise any right, power or remedy
accruing upon any Event of Default shall exhaust or impair any such right, power
or remedy or shall be construed to waive any such Event of Default or to
constitute acquiescence therein. Every right, power and remedy given to
Mortgagee may be exercised from time to time and as often as may be deemed
expedient by Mortgagee.
Section II.15 No Waiver of One Default to Affect Another. No waiver of
any Event of Default hereunder shall extend to or affect any subsequent or any
other Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Mortgagee (a) grants forbearance or an extension of time
for the payment of any sums secured hereby; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted in the Note, this Mortgage or any other instrument securing the Note;
(d) releases any part of the Mortgaged Property from the lien of this Mortgage
or any other instrument securing the Note; (e) consents to the filing of any
map, plat or replat of the Land; (f) consents to the granting of any easement on
the Land; or (g) makes or consents to any agreement changing the terms of this
Mortgage or subordinating the lien or any charge hereof, no such act or omission
shall release, discharge, modify, change or affect the original liability under
the Note, this Mortgage or otherwise of Mortgagor, or any subsequent purchaser
of the Mortgaged Property or any part thereof or any maker, cosigner, endorser,
surety or guarantor. No such act or omission shall preclude Mortgagee from
exercising any right, power or privilege herein granted or intended to be
granted in case of any Event of Default then existing or of any subsequent Event
of Default nor, except as otherwise expressly provided in an instrument or
instruments executed by Mortgagee, shall the lien of this Mortgage be altered
thereby. In the event of the sale or transfer by operation of law or otherwise
of all or any part of the Mortgaged Property, Mortgagee, without notice to any
Person, is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Mortgaged Property or the indebtedness secured
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 discharging any of the liabilities or undertakings
hereunder.
16
Section II.16 Discontinuance of Proceedings; Position of Parties
Restored. If Mortgagee 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 Mortgagee, then and in every such case Mortgagor and
Mortgagee shall be restored to their former positions and rights hereunder, and
all rights, powers and remedies of Mortgagee shall continue as if no such
proceeding had occurred or had been taken.
Section II.17 Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Mortgagee by the Note, this Mortgage or any other instrument
securing the Note is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given hereunder or under the
Note or any of the other Bond Documents, or now or hereafter existing at law, in
equity or by statute.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section III.1 Legal Representatives, Successors, and Assigns Included
in Parties. Whenever one of the parties hereto is named or referred to herein,
the legal representatives, successors and assigns of such party shall be
included and all covenants and agreements contained in this Mortgage, by or on
behalf of Mortgagor or Mortgagee, shall bind and inure to the benefit of their
respective legal representatives, successors and assigns, whether so expressed
or not. Further, it is specifically provided that this Mortgage shall be
assigned by Mortgagee to the Trustee pursuant to the Indenture and, upon such
assignment, all rights and remedies granted to Mortgagee hereunder shall inure
to and may be exercised by the Trustee which shall be deemed to be the mortgagee
hereunder.
Section III.2 Addresses for Notices, etc. Any notice, report, demand or
other instrument authorized or required to be given or furnished under this
Mortgage to Mortgagor or Mortgagee shall be deemed given or furnished in
accordance with the provisions of the Loan Agreement or the Indenture.
Section III.3 Headings. The headings of the articles, sections,
paragraphs and subdivision of this Mortgage are for convenience of reference
only, are not to be considered a part hereof, and shall not limit to expand or
otherwise affect any of the terms hereof.
Section III.4 Invalid Provisions to Affect No Others. In the event that
any of the covenants, agreements, terms or provisions contained in the Note,
this Mortgage or any other instrument securing 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 and
17
any other instrument securing the Note shall be in no way affected, prejudiced
or disturbed thereby.
Section III.5 Changes, etc. Neither this Mortgage nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. Any
agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage
shall be superior to the rights of the holder of any intervening lien or
encumbrance.
Section III.6 Governing Law. This Mortgage is made by Xxxxxxxxx and
accepted by Mortgagee 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).
Section III.7 Overdue Rate. The Overdue Rate shall be as provided in
Loan Agreement or the Note; in the event no such rate is provided therein, the
Overdue Rate shall be the maximum rate of interest permitted by law at the time
of default or the Reference Rate plus two percent (2%) per annum, whichever is
lower.
Section III.8 Joint and Several. If there is more than one Mortgagor
hereunder, the duties, liabilities and obligations of Mortgagor hereunder shall
be joint and several.
Section III.9 Non-Homestead. The Mortgaged Property does not now
constitute, and has not ever constituted, the homestead of Mortgagor.
Section III.10 WAIVER OF JURY TRIAL. XXXXXXXXX XXXXXX KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON THIS MORTGAGE OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS MORTGAGE OR ANY DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS MORTGAGE, INCLUDING WITHOUT LIMITATION, THE
OTHER BOND DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO OR
THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE'S ISSUANCE OF THE
BONDS AND LOAN OF THE PROCEEDS THEREOF TO MORTGAGOR AND FOR MORTGAGEE'S
ACCEPTANCE OF AND/OR ENTRY INTO ALL DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION WITH THIS MORTGAGE, INCLUDING WITHOUT LIMITATION, THE OTHER BOND
DOCUMENTS, FROM, OR WITH, MORTGAGOR AND/OR THE GUARANTORS.
18
IN WITNESS WHEREOF, the undersigned have executed this instrument the
day and year above first write
Signed, sealed and delivered ELXSI
in the presence of:
By:
----------------------------- -------------------------------------
Name: Name: Xxxxxxxxx X. Xxxxxx
------------------------ Title: President
-----------------------------
Name:
------------------------
Attest:
By:
----------------------------- -------------------------------------
Name: Name: Xxxxx Xxxxxxxxx
------------------------ Title: Vice President
-----------------------------
Name: (CORPORATE SEAL)
------------------------
As to "Mortgagor"
ORANGE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
----------------------------- -------------------------------------
19
Name: Name: Xxxxx X. Xxxxxxx
------------------------ Title: Vice Chairman of the Orange County
Industrial Development Authority
-----------------------------
Name:
------------------------
Attest:
----------------------------- -----------------------------------------
Name: Name: Xxxxx X. Xxxxxxx
------------------------ Title: Vice Chairman of the Orange County
(SEAL) Industrial Development Authority
As to "Mortgagee"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 24th day of
September, 1997, by Xxxxxxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx as the President and
Vice President, respectively, of ELXSI, a California corporation, on behalf of
the corporation.
-------------------------------------------
Name:
--------------------------------------
Notary Public, State of Florida
Personally Known
---------------------------
Produced Identification
--------------------
Type of Identification:
--------------------
(NOTARIAL SEAL)
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 24th day of
September, 1997, by Xxxxx X. Xxxxxxx as Vice Chairman of the Orange County
Industrial Development Authority, a public body corporate and politic and a
public instrumentality duly created and existing under and by virtue of the laws
of the State of Florida, on behalf of said Authority.
-------------------------------------------
Name:
--------------------------------------
Notary Public, State of Florida
Personally Known
---------------------------
Produced Identification
--------------------
Type of Identification:
--------------------
(NOTARIAL SEAL)
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 24th day of
September, 1997, by Xxxxxx X. Xxxxx as Secretary of the Orange County Industrial
Development Authority, a public body corporate and politic and a public
instrumentality duly created and existing under and by virtue of the laws of the
State of Florida, on behalf of said Authority.
-------------------------------------------
Name:
--------------------------------------
Notary Public, State of Florida
Personally Known
---------------------------
20
Produced Identification
--------------------
Type of Identification:
--------------------
(NOTARIAL SEAL)
21
EXHIBIT "A"
Legal Description of the Land
Lots 1 through 12, Block M and all of Block N lying North and West of
Interstate 4, PLAT OF WOODHAVEN, as recorded in Plat Book J, Page 127, Public
Records of Orange County, Florida.
EXHIBIT "B"
Description of Additional Property
(b) All of the structures, buildings and improvements now or hereafter situated
upon the Land.
(c) Any and all easements, rights-of-way, gores of land, streets, ways, alleys,
passages, sewer rights, air rights, water, water stock, water rights,
titles, interests, privileges, tenements, hereditaments and appurtenances
whatsoever, in any way belonging, relating or appertaining to any of the
Land or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by the Mortgagor, and the
reversion and reversions, remainder and remainders, rents, issues, profits
thereof, and all of the estate, right, title, interest, property,
possession, "claim and demand whatsoever at law, as well as in equity, of
the Mortgagor of, in and to the same.
(d) All right, title and interest of the Mortgagor, if any, in and to the land
lying in the bed of any streets, roads or avenues, opened or proposed, in
front of or adjoining the Land, and in and to the appurtenances thereto.
(e) All rents, profits, issues and revenue of the Land and the buildings on the
Land from time to time accruing, whether under leases or tenancies now
existing or hereafter created.
(f) All of the Mortgagor's right, title and interest in and to any judgments,
awards of damages, condemnation payments and settlements, including
interest thereon, and the right to receive the same, which may be made with
respect to the Land as a result of the exercise of the right of eminent
domain, the alteration of the side of any street, any other injury or a
decrease in the value of the Land, or proceeds of insurance awards.
(g) All machinery, apparatus, equipment, fittings, fixtures and tangible
personal property of every kind and nature whatsoever now or hereafter
located on the Land or in any buildings or improvements upon the Land, or
any part thereof, and used or usable in connection with the construction of
or any occupancy of any buildings on the Land or the operation of the Land,
all additions thereto, and all substitutions and replacements therefor, but
specifically excluding all fixtures, equipment, machinery, furniture and
other items of tangible personal property owned by tenants occupying
buildings on the Land.
(h) The Mortgagor's interest in all leases of the Land or portions thereof now
existing or hereafter entered into by the Mortgagor, and all right, title
and interest of the Mortgagor thereunder, including, without limitation,
cash or securities deposited thereunder to secure performance by the
lessees and vendees of their obligations thereunder, subject, however, to
the terms of the leases pursuant to which such deposits are held.
(i) All deposits made with, or other security given to, utility companies by
the Mortgagor
Page 1 of 2 Exhibit "B"
with respect to the Land.
(j) All of the Mortgagor's rights relating to the Land or the operation
thereof, or used in connection therewith, including, without limitation,
the non-exclusive right to use trade names, service marks and trademarks.
(k) All proceeds of the conversion, voluntary or involuntary, or any of the
foregoing into cash or liquidated claims, including proceeds of insurance
and condemnation awards.
(l) All rights to other permits, authorizations and approvals granted the
Mortgagor in regard to the Land such as, but not limited to, all building
permits, certificates of occupancy, etc.
(m) All rights of the Mortgagor to any contracts relating to the Land such as,
but not limited to, all contracts with any general contractors with regard
to improvements to be constructed on the Land, engineer contracts,
architects contracts, marketing contracts, management contracts, service or
maintenance contracts, etc., and all claims or causes of actions arising
therefrom in favor of the Mortgagor.
(n) All intangible rights of the Mortgagor regarding the Land such as, but not
limited to, all impact fee credits, sewer fee credits, sewer rights and
development rights, including, but not limited to, rights regarding to
concurrency and the right to develop.
(o) All building materials, whether located upon or off the Land, and all
warranties (seller's, manufacturer's, contractor's or other) given in
connection with the Land, and all architectural or engineering plans,
specifications and drawings, and surveys used in connection with or
relating to the Land.
Page 2 of 2 Exhibit "B"
ASSIGNMENT
FOR VALUE RECEIVED, ORANGE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, hereby
assigns, transfers and sets over to SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, as Trustee, the within Mortgage and Security Agreement, without
recourse, this 24th day of September, 1997.
Signed, sealed and delivered ORANGE COUNTY INDUSTRIAL
in the presence of: DEVELOPMENT AUTHORITY
By:
----------------------------- -------------------------------------
Name: Name: Xxxxx X. Xxxxxxx
------------------------ Title: Vice Chairman of the Orange County
Industrial Development Authority
-----------------------------
Name:
------------------------
Attest:
----------------------------- By:
Name: -------------------------------------
------------------------ Name: Xxxxx X. Xxxxxxx
(SEAL) Title: Vice Chairman of the Orange County
Industrial Development Authority
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 24th day of
September, 1997, by Xxxxx X. Xxxxxxx as the Vice Chairman of the Orange County
Industrial Development Authority, a public body corporate and politic and a
public instrumentality duly created and
existing under and by virtue of the laws of the State of Florida, on behalf of
said Authority.
-------------------------------------------
Name:
--------------------------------------
Notary Public, State of Florida
Personally Known
---------------------------
Produced Identification
--------------------
Type of Identification:
--------------------
(NOTARIAL SEAL)
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 24th day of
September, 1997, by Xxxxxx X. Xxxxx as the Secretary of the Orange County
Industrial Development Authority, a public body corporate and politic and a
public instrumentality duly created and existing under and by virtue of the laws
of the State of Florida, on behalf of said Authority.
-------------------------------------------
Name:
--------------------------------------
Notary Public, State of Florida
Personally Known
---------------------------
Produced Identification
--------------------
Type of Identification:
--------------------
(NOTARIAL SEAL)
