MORTGAGE AND SECURITY AGREEMENT
BETWEEN
WASTEMASTERS OF PALM BEACH, INC.
AND
XXXXXXX X. XXXXXX AND C. XXXXX XXXXXXX
Lender
SECURING:
$1,000,000 Promissory Note of even date herewith
Prepared by and return to:
X. Xxxxxxxx Simpler, Jr.
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
TABLE OF CONTENTS
(This Table of Contents is not a part of the Mortgage
but is only for convenience of reference.)
Page
Recitals 1
Granting Clause First and Second 2
Granting Clause Third and Fourth 3
ARTICLE I
DEFINITIONS 4
Section 1.1 General 4
Section 1.2 Definitions 4
ARTICLE II
PAYMENTS, TAXES, INSURANCE, MAINTENANCE, SUBSTITUTIONS,
REMOVALS, LIENS, DAMAGE AND DESTRUCTION,
CONDEMNATION, EXPENSES OF GRANTEE 6
Section 2.1 Loan Agreement and Notes 6
Section 2.2 Taxes and Other Charges 6
Section 2.3 Insurance 6
Section 2.4 Tax and Insurance Deposits 7
Section 2.5 Maintenance and Modification of Mortgaged Property 8
Section 2.6 Substitutions for Portions of the Project 8
Section 2.7 Mechanics' and Other Liens 9
Section 2.8 Damage and Destruction 9
Section 2.9 Condemnation 10
Section 2.10 Protection of Grantee 11
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES 13
Section 3.1 Events of Default 13
Section 3.2 Remedies 14
Section 3.3 Acceleration 14
Section 3.4 Surrender of Possession; Rights and Duties of
Grantees in Possession 14
Section 3.5 Actions to Recover Amounts Due 15
Section 3.6 Foreclosure 15
Section 3.7 Appointment of Receiver 15
Section 3.8 Application of Moneys 15
Section 3.9 Rights and Remedies Cumulative; No Waiver or
Release of Obligation 16
Section 3.10 Termination of Proceedings 17
Section 3.11 Right to Remedy Default 17
Section 3.12 Relationship to Loan Agreement and Indenture 17
ARTICLE IV
COVENANTS, REPRESENTATIONS AND WARRANTIES 18
Section 4.1 Representations and Warranties 18
Section 4.2 Notices to Grantee 18
Section 4.3 Leases and Restrictions 18
Section 4.4 No Other Financing or Liens 19
Section 4.5 No Further Encumbrance; No Disposition 20
Section 4.6 Compliance with Laws and Regulations 20
Section 4.7 Covenant Running with the Land 20
Section 4.8 Recordation 20
Section 4.9 After-Acquired Property 20
Section 4.10 Financial Statements 21
Section 4.11 Hazardous Substances 21
ARTICLE V
MISCELLANEOUS 24
Section 5.1 Notices 24
Section 5.2 Amendments, Changes and Modifications 24
Section 5.3 Execution Counterparts 24
Section 5.4 Severability 24
Section 5.5 General Waivers By Grantor 24
Section 5.6 Effect of Mortgage 25
Section 5.7 Maximum Indebtedness 25
Section 5.8 No Merger 25
Section 5.9 Captions 26
Section 5.10 Governing Law 26
ACKNOWLEDGMENTS 28
EXHIBIT A - PROJECT SITE 29
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") is
made as of July 31, 1998, between WASTEMASTERS OF PALM BEACH, INC., a
Florida corporation (the "Grantor"), and XXXXXXX X. XXXXXX, an
individual, his heirs, survivors and assigns, and C. XXXXX XXXXXXX, an
individual, his heirs, survivors and assigns (Collectively, the
"Lender") (the Lender sometimes being referred to herein as the
"Grantee") under the following circumstances:
The Grantor has entered into a Loan Agreement of even date
herewith (the "Loan Agreement") with the Grantee, pursuant to the terms
of which the Grantee has agreed to loan to Grantor the principal amount
of $1,000,000 and Grantor has agreed to deliver the Note (as hereinafter
defined) to evidence said loan and to grant this Mortgage on and security
interest in the Project Site (as hereinafter defined) as security for the
payment of the Note, such Note and this Mortgage having a final maturity
date of July 31, 1999.
NOW, THEREFORE, for good and valuable considerations, the
receipt of which are hereby acknowledged by Grantor, and in consideration
of the foregoing recitals, which shall be construed as parts hereof for
all purposes, and as security for the payment of the principal of,
premiums (if any) and interest on, and all other sums provided for in the
Note, and any extensions or renewals thereof, and for payment and
performance of the agreements, conditions, covenants, provisions and
stipulations contained herein and in the Note, the Loan Agreement and in
any other agreements and instruments made and given by Grantor to the
Grantee in connection therewith, Grantor does hereby grant, bargain,
sell, convey, mortgage and warrant, assign, transfer and grant a security
interest in and pledge unto Grantee, and unto its respective successors
and assigns forever, all of Grantor's estate, right, title and interest
in, to and under any and all of the following described property, rights
and interests, whether now owned or hereafter acquired (herein called the
"Mortgaged Property"):
GRANTING CLAUSE FIRST
All right, title and interest of Grantor in and to the Project Site, as
hereinafter defined, together with the entire interest of Grantor in and
to all buildings, structures, improvements and appurtenances of any
nature whatsoever now standing, or at any time hereafter constructed or
placed, upon the Project Site, including all right, title and interest of
Grantor, if any, in and to all building material (whether on or off the
Project Site), building equipment and fixtures of every kind and nature
whatsoever in any building, structure or improvement now or hereafter
standing on the Project Site, and the proceeds of any insurance on such
property, and together with the entire interest of Grantor in and to all
and singular the tenements, hereditaments, easements, rights-of-way,
rights, privileges and appurtenances to the Project Site, belonging or in
any wise appertaining thereto (including without limitation the entire
right, title and interest of Grantor in, to and under any xxxxxxx, xxxx,
xxxxxx, xxxxx or strips of land adjoining the Project Site, and all
claims or demands whatsoever of Grantor either at law or in equity, in
possession or expectancy of, or in and to the Project Site), it being the
intention of the parties hereto that, so far as may be permitted by law,
all property of the character hereinabove described, which is now owned
or is hereafter acquired by Grantor and is affixed or attached or annexed
to the Project Site, shall be and remain or become and constitute a
portion of the Project Site, and the security covered by and subject to
the lien of this Mortgage, together with all rents, income, revenues,
issues and profits thereof, and the right to make claim for, collect,
receive and receipt for any and all of such rents, income, revenues,
issues and profits arising therefrom or in connection therewith; subject,
however, to Permitted Encumbrances (as hereinafter defined).
GRANTING CLAUSE SECOND
All fixtures, machinery, equipment and other articles of
personal property now or at any time hereafter owned or leased by Grantor
and placed upon or installed on the Project Site and any property
acquired in substitution, replacement, renewal or repair thereof pursuant
to this Mortgage, and all accessions to and proceeds of any of the
foregoing, less any of the foregoing removed by Grantor in accordance
with this Mortgage, and the proceeds of any insurance on or condemnation
award for any of the foregoing; subject, however, to Permitted
Encumbrances.
GRANTING CLAUSE THIRD
All the Pledged Revenues, together with all rentals and
other payments due or to become due under any lease or leases or rights
or licenses to use or occupancy of any part of the Mortgaged Property now
or hereafter created, as well as all rights or licenses and remedies
provided in such leases, rights or licenses.
GRANTING CLAUSE FOURTH
Any and all other rights and interests in property,
whether tangible or intangible, required to be subject to the lien
hereof, or from time to time by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred as and for
additional security hereunder by Grantor or by anyone in its behalf or
with its written consent to Grantee, which are hereby authorized to
receive any and all such property at any and all times and to hold and
apply the same subject to the terms hereof.
TO HAVE AND TO HOLD all and singular the Mortgaged
Property hereby conveyed, granted and assigned, as agreed or intended so
to be, unto Grantee, its respective successors and assigns forever.
PROVIDED, HOWEVER, and this instrument is upon the express
condition that, if Grantor pays, or causes to be paid (i) the entire
principal sum of the Note, and the premiums (if any) and interest thereon
to the Grantee, and (ii) all other sums payable by Grantor to Grantee as
are secured hereby in accordance with the provisions of the Note, the
Loan Agreement and this Mortgage, at the times and in the manner
specified, without deduction, fraud or delay, and Grantor performs and
complies with, or causes to be performed and complied with, all the
agreements, conditions, covenants, provisions and stipulations contained
herein and in the Note and the Loan Agreement, then this Mortgage and
the estate and security interest hereby granted shall terminate, cease,
determine and be void; otherwise this Mortgage and the estate and
security interest hereby granted shall be and remain in full force and
effect.
Grantor does hereby further agree and covenant with
Grantee as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. In addition to the words and
terms defined in the recitals and elsewhere in this Mortgage, certain
words and terms as used in this Mortgage shall have the meaning given to
them by the definitions and descriptions in this Article I unless the
context or use indicates another or different meaning or intent and such
definitions shall be equally applicable to both the singular and plural
forms of any of the words and terms herein defined. Those words and
terms not specifically defined herein and used in this Mortgage with
initial capitalization where rules of grammar do not otherwise require
capitalization shall have the meanings set forth in the Loan Agreement
referenced in the recitals to this Mortgage.
Section 1.2 Definitions. The following words and
terms are defined terms under this Mortgage:
"Net Proceeds" means, as to any insurance proceeds or any
condemnation award, the amount remaining after deducting therefrom all
expenses (including attorneys' fees and expenses of Grantee) incurred in
the collection of such proceeds or award, plus any interest earned on the
investment thereof.
"Note" means the promissory note of even date herewith
from the Grantor to the Grantee, in the principal amount of $1,000,000.
"Notice Address" means for the Grantor and Grantee, the
respective notice addresses provided for in the Loan Agreement.
"Permitted Encumbrances" means as of any particular time,
the rights of the Grantor and Grantee under this Mortgage, the Loan
Agreement, and the following:
(a) Liens for taxes, levies, assessments, utility
rents, rates and charges, license, permit or other authorization fees and
other impositions, provided that in each case the same shall either (i)
not be due and payable, (ii) not be delinquent to the extent that
penalties for nonpayment may then be assessed on the Project, or any
material portion thereof then be subject to forfeiture, or (iii) be a
lien the amount or validity of which is being contested in good faith by
the Grantor;
(b) Defects, irregularities, encumbrances, mortgages,
liens, licenses, rights of way, servitudes, restrictions, mineral rights
and clouds on title which do not materially impair the operation of the
Project;
(c) Easements, servitudes, encumbrances, exceptions or
reservations for the purpose of pipelines, for telephones and other means
of communication, for power lines and substations, for roads, streets,
alleys, driveways, walkways, highways, railroads, and other means of
transportation, for drainage and sewerage, conduits, dikes, canals,
laterals, ditches, for the removal of oil, gas, coal or other minerals,
and other like purposes, or for the joint or common use of real property,
facilities and equipment, which do not materially impair the operation of
the Project;
(d) Mechanics', workmen's, repairmens, materialmen's,
suppliers', vendors' or carriers' liens or other similar liens, provided
that the lien shall be discharged by the Grantor, in the ordinary course
of business or the amount or validity of the lien shall be contested in
good faith with any pending execution thereof appropriately stayed;
(e) Rights of the United States or any state or
political subdivision thereof (which for purposes of this definition
shall include any taxing or improvement district), or other public or
governmental authority or agency, to take, use or control property or to
terminate or modify any lease, right, power, franchise, grant, license or
permit previously in force;
(f) The pendency or filing of any application or
proceedings seeking to annex or rezone the Project or any portion
thereof, or to include it in any political subdivision;
(g) Purchase money security interests in favor of a
lessor, vendor, or lender extending credit for the acquisition of
property which is the subject of the lien, the acquisition of which has
not been financed, directly or indirectly, with moneys representing the
proceeds of the Note;
(h) Pledged Receivables, to the extent allowed herein
in favor of the provider of any receivables line of credit.
"Pledged Revenues" or "Revenues" means all Pledged
Receivables, together with all rents, receipts, issues and profits
derived by the Grantor from the operation or ownership of the Project.
" Pledged Receivables " means (a) a senior lien against
(i) all receivables of the Grantor which are currently due and payable
and which do not secure any receivables line of credit, or (ii) all
proceeds of draws by the Grantor against any receivables line of credit;
and (b) a subordinated lien against all receivables of the Grantor which
are currently due and payable and which secure any receivables line of
credit.
"Project" means the solid waste transfer station and
related business acquired by the Grantor with the proceeds of the Note,
as the same may exist from time to time, or extended, enlarged or
improved on the project Site.
"Project Site" means the real estate and interests in real
estate constituting the site of the Mortgaged Property, as described in
Exhibit A attached hereto as a part hereof.
"Related Documents" means the Loan Agreement and the Note.
(End of Article I)
ARTICLE II
PAYMENTS, TAXES, INSURANCE, MAINTENANCE, SUBSTITUTIONS,
REMOVALS, LIENS, DAMAGE AND DESTRUCTION,
CONDEMNATION, EXPENSES OF GRANTEE
Section 2.1 Loan Agreement and Note. Grantor shall
make all payments when due under the Note and the Loan Agreement, and
shall perform and comply with all covenants, agreements, conditions,
provisions, stipulations and obligations set forth therein on its part to
be performed, at the times and in the manner required thereby.
Section 2.2 Taxes and Other Charges. Grantor shall
pay or cause to be paid when due and payable and before interest or
penalties are due thereon, without any deduction, defalcation or
abatement, all taxes, assessments, water and sewer rents, charges and
claims which may be assessed, levied, or filed at any time against
Grantor, the Mortgaged Property or any part thereof (including without
limitation any taxes levied upon or with respect to the revenues, income
or profit of Grantor from the Mortgaged Property) or against the interest
of Grantee therein, or which by any present or future law may become or
be made a lien on the Mortgaged Property, or any part thereof, or a
charge on such revenues, income or profits; and Grantor shall produce to
Grantee, upon request, receipts for the payment thereof; provided,
however, that if, pursuant to this Mortgage or otherwise, Grantor shall
have deposited with Grantee before the due date thereof sums sufficient
to pay any such taxes, assessments, water and sewer rents, charges and
claims, and Grantor is not otherwise in default, they shall be paid by
the Grantee; and provided further, that if Grantor in good faith and by
appropriate legal action shall contest the validity of any such item, or
the amount thereof, and shall have established on its books or by deposit
of a letter of credit or bond with Grantee, as Grantee may elect, the
amount required for the payment thereof, then Grantor shall not be
required to pay the item or to produce the required receipts while the
amount is maintained and so long as the contest operates to prevent
collection, is maintained and prosecuted with diligence, and shall not
have been terminated or discontinued adversely to Grantor.
Notwithstanding the foregoing, if Grantee notifies Grantor that, in the
opinion of counsel selected by Grantee, by nonpayment of any such item
the lien of this Mortgage as to any part of the Mortgaged Property will
be materially affected or the Mortgaged Property or any part thereof will
be subject to imminent loss or forfeiture, Grantor shall promptly pay
such item. It is expressly agreed that no credit shall be claimed or
allowed on the interest payable on the Note because of any taxes or other
charges paid.
Section 2.3 Insurance. Grantor shall obtain or cause
to be obtained, and continuously maintain or cause to be maintained,
insurance with respect to the Mortgaged Property, in such amounts as are
customary for a prudent owner of properties comparable to those
comprising the Mortgaged Property, but in any event in amounts not less
than the outstanding principal balance of the Note, against loss or
damage from theft, fire, vandalism, and other events covered by uniform
standard extended coverage endorsements approved by the insurance
regulatory authority in the State of Florida. In addition to the
property insurance described above, Grantor shall, during any
construction on the Project Site, carry or cause to be carried a policy
or policies of builders risk-completed value fire and extended coverage
insurance, without co-insurance, in such amounts as are customary for a
prudent owner of properties comparable to those comprising the Mortgaged
Property. Grantor may provide any such insurance under a blanket
insurance policy or policies which cover not only such property but other
properties. Any insurance policy required pursuant to this paragraph
which is written on a co-insurance basis must contain an "agreed amount"
endorsement as evidence that the coverage is in an amount sufficient to
insure the full amount secured by this Mortgage.
Grantor shall also obtain or cause to be obtained, and
continuously maintain or cause to be maintained, public liability
insurance with reference to the Mortgaged Property and the Project Site
in a minimum single limit amount of at least $1,000,000 per occurrence
and $2,000,000 in aggregate for death or bodily injury or property
damage. Grantee shall be made additional insureds under such policies.
Such public liability insurance may be by blanket insurance policy or
policies.
Each insurer is hereby authorized and directed to make
payment of any amount under the insurance described in this Section
(except liability insurance), including return of unearned premiums,
directly to Grantee instead of to Grantor and Grantee jointly, and
Grantor hereby appoints Grantee, irrevocably, as Grantor's attorney-in-
fact to endorse any draft therefor for application as herein provided;
provided that the foregoing provisions of this paragraph shall not limit
Grantor's right, in conjunction with Grantee, to negotiate or agree to
settlement of any claim under the insurance described in this Section.
Grantor shall comply with all applicable workers'
compensation laws.
Section 2.4 Tax and Insurance Deposits. Without
limiting the effect of Sections 2.2 and 2.3 hereof, Grantor shall pay to
the Lender monthly on or before the first day of each month, commencing
with the month following the recording of this Mortgage, an amount equal
to one-twelfth (1/12) of the annual premiums for the insurance policies
referred to hereinabove and the annual real estate taxes, any special
assessments, charges or claims and any other items which at any time may
be or become a lien upon the Mortgaged Property prior to the lien of this
Mortgage; and on demand from time to time Grantor shall pay to the Lender
any additional sums necessary to pay, at least thirty (30) days prior to,
the due date thereof, the premiums and other items, all as estimated by
the Lender. The amounts so paid shall be security for the premiums and
other items and shall be used in payment thereof if Grantor is not
otherwise in default hereunder. No amount so paid shall be deemed to be
trust funds but may be commingled with general funds of the Lender, and
no interest shall be payable thereon. If, pursuant to any provision of
this Mortgage, the whole amount of the unpaid principal debt becomes due
and payable, Grantee shall have the right, at their election, to apply
any amount so held against the entire indebtedness secured hereby. So
long as Grantor is not in default under Sections 2.2 or 2.3 hereof and
has provided to Grantee evidence of timely payment of its obligations
thereunder, the provisions of this Section 2.4 shall be waived by
Grantee.
Section 2.5 Maintenance and Modification of Mortgaged
Property. Subject to the provisions of Section 5.12 of the Loan
Agreement, Grantor shall keep and maintain or cause to be kept and
maintained the Mortgaged Property and the sidewalks and curbs abutting
same, in good order and condition (including operating condition) and in
rentable and tenantable state of repair, and will make or cause to be
made, as and when necessary, all repairs, renewals and replacements,
structural and nonstructural, exterior and interior, ordinary and
extraordinary, foreseen and unforeseen. Grantor shall abstain from and
shall not permit the commission of waste in, of or about the Mortgaged
Property; shall not remove or demolish any building erected at any time
on the Project Site without the prior written consent of Grantee; and
shall not permit the Mortgaged Property to become vacant, deserted or
unguarded.
The Grantee shall have the right to enter upon the
Mortgaged Property at any reasonable business hour for the purpose of
inspecting the order, condition and repair of the Mortgaged Property.
Grantor shall have the right to remodel the Mortgaged
Property or make additions, modifications and improvements thereto, from
time to time as it, in its discretion, may deem to be desirable for its
uses and purposes, the cost of which remodeling, additions, modifications
and improvements shall be paid by Grantor, and the same shall, when made,
become a part of the Mortgaged Property. No such remodeling, addition,
modification or improvement of the Mortgaged Property shall materially
adversely affect the value of the Mortgaged Property and Grantor shall
comply promptly and conform to all requirements of insurance underwriters
providing coverage for the Mortgaged Property regarding use, occupancy,
operation, maintenance, alteration or repair of any of the Mortgaged
Property.
Section 2.6 Substitutions for Portions of the Project.
Grantor shall have the right from time to time to substitute personal
property or fixtures for any portions of the Mortgaged Property, provided
that the personal property or fixtures so substituted shall not
materially impair the value of the Mortgaged Property. Any such
substituted property or fixtures shall become part of the Mortgaged
Property.
Grantor shall also have the right to remove any personal
property portions of the Mortgaged Property, without substitution
therefor, from the Mortgaged Property and from service in Grantor's
business, in any instance where Grantor determines, in its reasonable
discretion, that such property has become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, whereupon, subject to the
provisions hereinafter set forth, such removed property shall no longer
be subject to this Mortgage. Prior to any removal Grantor shall deliver
to Grantee certificates executed by Grantor so certifying and
particularly describing the property to be removed.
Section 2.7 Mechanics' and Other Liens. Subject to
the provisions of the Loan Agreement, Grantor shall not suffer or permit
any mechanics' liens to be filed or exist against the Mortgaged Property,
or against any payment to be made under the Loan Agreement or the Note,
by reason of work, labor, services or materials supplied or claimed to
have been supplied to Grantor or anyone holding the Mortgaged Property or
the Project Site or any part thereof through or under Grantor.
Section 2.8 Damage and Destruction. Subject to the
provisions of the Loan Agreement, if the Mortgaged Property is damaged or
destroyed by fire or other casualty and if Grantor does not so elect
within 90 days to prepay the Note in full in accordance with the
provisions of the Loan Agreement, the property damaged shall be promptly
repaired, rebuilt or restored. If the Grantor elects to rebuild the
property damaged or destroyed, (i) Grantor will promptly repair, replace,
rebuild or restore the property damaged or destroyed as nearly as
practicable to the value, condition and character thereof existing
immediately prior to such damage or destruction, with such changes or
alterations, however, as Grantor may deem necessary, with the prior
approval of the Grantee, for proper operation of the Mortgaged Property,
and (ii) Grantor and Grantee will apply for such purpose so much as may
be necessary of any Net Proceeds of insurance resulting from claims for
losses, under the insurance policies required to be carried herein,
resulting from such damage.
If the Grantor has been entitled to use the Net Proceeds
for rebuilding and restoration under the first paragraph of this Section,
any balance of such Net Proceeds remaining after payment of all the costs
of repair, replacement, rebuilding or restoration under this Section and
approval thereof by the Grantee shall be applied to the payment of the
Note.
Section 2.9 Condemnation. All proceeds from a Net
Condemnation Award (as defined in the Loan Agreement) shall be applied
to the payment of the Note.
Section 2.10 Protection of Grantee. Grantor does
hereby indemnify and hold harmless Grantee from and against all
liabilities, obligations, claims, damages, penalties, causes of action,
cost and expenses (including, without limitation, reasonable attorneys'
fees and expenses) imposed upon or incurred by or asserted against the
Grantee by reason of (a) ownership of any interest in the Mortgaged
Property or any part thereof, (b) any accident, injury to or death of any
person or persons, or loss of or damage to property, occurring on or
about the Mortgaged Property or any part thereof or any adjoining
sidewalks, curbs, vaults and vault spaces, streets or highways, (c) any
use, nonuse or condition of the Mortgaged Property or any part thereof,
or any adjoining sidewalks, curbs, vaults and vault spaces, street or
highways, (d) any failure on the part of Grantor to perform or comply
with any of the terms, covenants or conditions of this Mortgage, (e) any
necessity to defend any of the rights, title or interest conveyed by this
Mortgage, or (f) the performance of any labor or services or the
furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof. In the event that any action, suit or
proceeding is brought against Grantee by reason of any of the matters
described in the immediately preceding sentence, Grantor, upon the
request of Grantee, will, at Grantor's expense, cause such action, suit
or proceeding to be resisted and defended by counsel designated by
Grantor and approved by Grantee. Any amounts payable to Grantee pursuant
to the provisions of this paragraph shall be secured by this Mortgage.
The obligations of Grantor under this paragraph shall survive any
defeasance of this Mortgage.
For purposes of clause (d) in the first sentence of the
preceding paragraph (and without limiting the generality thereof), it is
expressly understood and agreed that Grantee shall have no duty to
examine or make any investigation with respect to any work done, action
taken or payment made by Grantor under Sections 2.5, 2.6, 2.8 or 2.9 of
this Mortgage, and any determination of value under any such Section
(except as therein provided) shall be the sole responsibility of Grantor.
Nothing contained in this Section, however, shall require
the Grantor to indemnify the Grantee or any of its officials, officers,
employees or agents from any cost, liability, expense, loss or claim
arising out of or resulting from the willful misconduct or gross
negligence of the Grantee or any of its officials, officers, employees,
or agents. The indemnification provided by this Section to the Grantee
shall include its officials, officers, employees and agents.
(End of Article II]
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES
Section 3.1 Events of Default. The following shall be
"events of default" under this Mortgage:
(a) failure by the Grantor to pay any amount required
to be paid under the Note at the time specified therein; or
(b) failure by the Grantor to observe and perform any
covenant, condition or agreement on its part to be observed or performed
in the Related Documents, other than as referred in (a) above, for a
period of 30 days after receipt by the Grantor of written notice,
specifying such failure and requesting that it be remedied, given to the
Grantor by the Grantee, unless the Grantee shall agree in writing to an
extension of such time prior to its expiration; provided, however, if the
failure stated in the notice cannot be corrected within the applicable
period but can be corrected, the Grantee will not unreasonably withhold
their consent to an extension of such time if corrective action is
instituted within the applicable period and diligently pursued until the
default is corrected; and
(c) the dissolution or liquidation of the Grantor or
the filing by the Grantor of a voluntary petition in bankruptcy, or
failure by the Grantor promptly to lift any execution, garnishment or
attachment or such consequence as will impair its ability to carry on its
obligations hereunder, or the commission by the Grantor of any act of
bankruptcy, or adjudication of the Grantor as a bankruptcy or its
reorganization, arrangement or debt readjustment under any present or
future federal bankruptcy act or any similar federal or state law shall
be filed in any court and such petition or answer shall not be discharge
or denied within 90 days after the filing thereof, or if the Grantor
shall admit in writing its inability to pay its debts generally as they
become due, or a receiver, trustee or liquidator of the Grantor shall be
appointed in any proceeding brought against the Grantor and shall not be
discharged within 90 days after such appointment by the Grantor for the
benefit of its creditors, or the entry by the Grantor into an agreement
of composition with its creditors, or a bankruptcy, insolvency or similar
proceedings shall be otherwise initiated by or against the Grantor under
any applicable bankruptcy, reorganization or analogous law as now or
hereafter in effect and if initiated against the Grantor shall remain
undismissed (subject to no further appeal) for a period of 90 days;
provided the term "dissolution or liquidation of the Grantor", as used in
this subsection, shall not be construed to include the cessation of the
corporate existence of the Grantor resulting either from a merger or
consolidation of the Grantor into or with another corporation or a
dissolution or liquidation of the Grantor following a transfer of all or
substantially all of its assets as an entirety under the conditions
permitting such actions contained in the Loan Agreement.
The provisions of paragraph (b) of this Section (other than obligations
of the Grantor contained in the Loan Agreement) are subject to the
following limitations: If by reason of acts of God; winds; fires;
epidemics; landslides; floods; droughts; famines; strikes; lockouts or
other industrial disturbances; acts of public enemies; acts or orders of
any kind of any governmental authority; insurrection; military action;
war, whether or not declared; sabotage; riots; civil disturbances;
explosions; breakage or accident to transmission pipes or canals; partial
or entire failure of utilities; or any cause or event not reasonably
within the control of Grantor, Grantor is unable in whole or in part to
carry out the agreements on its part herein contained, other than
obligations on the part of Grantor to make the payments required under
the Note and the Loan Agreement, to carry insurance, to pay any ad
valorem property taxes, and to make other payments or deposits pursuant
to the terms hereof, Grantor shall not be deemed in default during the
continuance of such inability. Grantor shall, however, use its best
efforts to remedy with all reasonable dispatch the cause or causes
preventing Grantor from carrying out its agreements; provided, that
Grantor shall not in any event be required to settle strikes, lockouts or
other industrial disturbances by acceding to the demands of the opposing
party or parties when such course is, in the judgment of Grantor, not in
the interest of Grantor.
Section 3.2 Remedies. In addition to any other remedy
available to Grantee, as provided herein or otherwise, Grantee may
exercise any remedy available to it under the Loan Agreement or any
applicable law, including the rights and remedies of a secured party
under the provisions of the Constitution and laws of the State of
Florida.
Section 3.3 Acceleration. Upon the occurrence of an
event of default, the Grantee may declare the principal, interest and all
other sums secured by this Mortgage to be due and payable immediately
and, upon said declaration, such principal, interest and other sums shall
become and be immediately due and payable.
Section 3.4 Surrender of Possession; Rights and Duties
of Grantees in Possession. Upon the occurrence of an event of default,
Grantor, upon demand of Grantee, shall forthwith, to the extent possible,
assemble the Mortgaged Property and proceeds and make them available to
the Grantee at the Project Site or some other place to be designated by
the Grantee which is convenient to all parties, and Grantor shall
forthwith surrender the possession of, and it shall be lawful for the
Grantee to take possession of, all or any part of the Mortgaged Property
together with the books, papers and accounts of Grantor pertaining
thereto, and to hold, operate and manage the same, and from time to time
to make all needful repairs, replacements and improvements; and, to the
extent permitted by applicable law, Grantee may use the Mortgaged
Property or any part thereof in the name and for the account of Grantor
and collect, receive and sequester the rents, license fees, revenues and
other income, charges and moneys therefrom, and out of the same and any
moneys received from any receiver of any part thereof, after deducting
all proper costs and expenses of so taking, holding and managing the
same, including reasonable compensation to Grantee, its respective agents
and counsel, pay and/or set up proper reserves for the payment of any or
all of the following in such order and amounts as Grantee, in Grantee's
sole discretion, may elect: the payment of any sums due under any prior
or subordinate lien, taxes, water and sewer rents, charges and claims,
insurance premiums and all other carrying charges, costs of maintenance,
repair, replacement or restoration of the Mortgaged Property, and on
account and in reduction of the principal or interest, or both, on the
indebtedness hereby secured. For the aforesaid purpose, Grantor hereby
assigns to Grantee all rentals and license fees due and to become due
under any leases or rights or licenses to use and occupation of all or
any part of the Mortgaged Property now or hereafter created, as well as
all rights and remedies provided in such leases, rights or licenses. In
the event that all events of default have been made good and Grantee
shall have surrendered possession to Grantor, the right of entry provided
in this Section shall again exist upon any subsequent event of default.
Section 3.5 Actions to Recover Amounts Due. Grantee
shall have the right, from time to time, to bring an appropriate action
to recover any sums required to be paid by Grantor under the terms of
this Mortgage, the Note or the Loan Agreement as they become due, without
regard to whether or not the principal indebtedness or any other sums
secured by the Note, the Loan Agreement or this Mortgage shall be due,
and without prejudice to the right of Grantee thereafter to institute
foreclosure or otherwise dispose of the Mortgaged Property or any part
thereof, or any other action, for any default by Grantor existing at the
time the earlier action was commenced.
Section 3.6 Foreclosure. Upon the occurrence of an
event of default, the lien on the Mortgaged Property created and vested
by this Mortgage may be foreclosed and the Grantee may sell or otherwise
dispose of the Mortgaged Property in the manner provided by law, and
Grantee, if the highest bidder, may become the purchaser of the Mortgaged
Property at any such sale. Grantee will give Grantor reasonable notice
of the time and place of any public sale thereof.
Section 3.7 Appointment of Receiver. Upon the
occurrence of an event of default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of Grantee
under this Mortgage, Grantee shall be entitled, as a matter of right, to
seek the appointment of a receiver or receivers of the Mortgaged Property
and all receipts therefrom, pending such proceedings, with such power as
the court making such appointment shall confer; provided, however, that
Grantee may, with or without action under this Section, pursue any
available remedy to enforce the payment of principal and interest and
premium, if any, or to remedy any event of default.
Section 3.8 Application of Moneys. All moneys
received by either Grantee or a receiver pursuant to any right given or
action taken under the provisions of this Article shall, after the
payment of the costs, expenses, liabilities and advances incurred by such
Grantee or receiver, be applied in the manner provided in Section 3.4
hereof if such moneys are received other than as a result of foreclosure
or any other disposition of the Mortgaged Property, and if received as a
result of foreclosure or any other disposition of the Mortgaged Property
shall be applied (subject to the approval of any court having
jurisdiction over any such foreclosure proceeding) first to the payment
of the costs, expenses, liabilities and advances incurred by Grantee or
receiver, and then on account and in reduction of the principal, premium
(if any) and interest on the indebtedness hereby secured.
Section 3.9 Rights and Remedies Cumulative; No Waiver
or Release of Obligation. The rights and remedies of Grantee as provided
in this Mortgage, the Note or the Loan Agreement, and in the warranties
contained herein and therein shall be cumulative and concurrent, may be
pursued separately, successively or together against Grantor or against
the Mortgaged Property, or any combination thereof, at the sole
discretion of Grantee, and may be exercised as often as occasion therefor
shall arise. The failure to exercise any such right or remedy shall in
no event be construed as a waiver or release thereof.
Any failure by Grantee to insist upon strict performance
by Grantor of any of the terms and provisions of this Mortgage, the Note
or the Loan Agreement shall not be deemed to be a waiver of any of the
terms or provisions thereof, and Grantee shall have the right thereafter
to insist upon strict performance by Grantor of any and all of them.
No delay or omission to exercise any right or power
accruing upon any failure or event of default shall impair any right or
power or shall be construed to be a waiver of any such failure or event
of default or acquiescence therein; and every such right and power may be
exercised from time to time and as often as may be deemed expedient.
No waiver of any failure or event of default hereunder by
Grantee shall extend to or shall affect any subsequent failure or event
of default or shall impair any rights or remedies consequent thereon.
Neither Grantor nor any other person now or hereafter
obligated for payment of all or any part of the sums now or hereafter
secured by this Mortgage shall be relieved of such obligation by reason
of the failure of Grantee to comply with any request of Grantor or of any
other person so obligated to take action to foreclose on this Mortgage or
otherwise enforce any provisions of this Mortgage, the Note or the Loan
Agreement, or by reason of the release, regardless of consideration, of
all or any part of the security held for the indebtedness secured by this
Mortgage, or by reason of any agreement or stipulation between any
subsequent owner of the Mortgaged Property and Grantee extending the time
of payment or modifying the terms of the Mortgage, without first having
obtained the consent of Grantor or such other person; and in the latter
event Grantor and all such other persons shall continue to be liable to
make payments according to the terms of any such extension or
modification agreement, unless expressly released and discharged in
writing by Grantee.
The Grantee may release, regardless of consideration, any
part of the security held for the indebtedness secured by this Mortgage
without, as to the remainder of the security, in any way impairing or
affecting the lien of this Mortgage or its priority over any subordinate
lien.
Section 3.10 Termination of Proceedings. If Grantee
shall have proceeded to enforce any right under this Mortgage by the
appointment of a receiver, by entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason, or shall have
been determined adversely, then and in every such case Grantor and
Grantee shall be restored to their former positions and rights hereunder,
respectively, and all rights, remedies and powers of Grantee shall
continue unimpaired as before.
Section 3.11 Right to Remedy Default. In the event
that Grantor should fail to carry the insurance required herein or
pursuant hereto, or to pay or cause to be paid real estate or other
taxes, assessments, water and sewer rents, charges and claims (unless and
only for so long as, in strict compliance with the provisions of Section
2.2 hereof, Grantor is contesting the validity of any such item or the
amount thereof), corporate taxes, sums due under any prior lien or
approved prior lien, or insurance premiums, or fail to make necessary
repairs or replacements, or permit waste, or fail to cure any default
under any prior lien or approved prior lien, or fail to comply with any
other obligation on the part of Grantor contained herein or in the Loan
Agreement, Grantee, at its election and without notice to Grantor, shall
have the right to make any payment or expenditure and to take any action
which Grantor should have made or taken, or which Grantee deems advisable
to protect the security of this Mortgage or the Mortgaged Property,
without prejudice to any of Grantee's rights or remedies available
hereunder or otherwise, at law or in equity. All such sums, as well as
costs, advanced by Grantee or due Grantee pursuant to this Mortgage or
the Loan Agreement shall be due immediately from Grantor to Grantee and
shall be secured hereby.
Section 3.12 Relationship to Loan Agreement. This
Mortgage is made subject to all of the terms, covenants and conditions of
the Loan Agreement.
(End of Article III)
ARTICLE IV
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties. Grantor
warrants that, subject to Permitted Encumbrances, (a) it is lawfully
seized with a good and marketable title to a fee simple estate in the
Project Site, subject to no lien, charge or encumbrance; (b) it will own
the Mortgaged Property free and clear of liens and claims; (c) this
Mortgage is and will remain a valid and enforceable first lien on the
Mortgaged Property; (d) it has full power and lawful authority to
mortgage the Mortgaged Property in the manner and form herein done or
intended hereafter to be done; and (e) it will preserve such title, and
will forever warrant and defend the validity and priority of the lien
hereof against the claims of all persons and parties whomsoever.
Section 4.2 Notices to Grantee. Grantor shall notify
Grantee promptly of the occurrence of any of the following:
(a) a fire or other casualty causing any damage
to the Mortgaged Property;
(b) receipt of notice of condemnation of the
Mortgaged Property or any part thereof;
(c) receipt of notice from any governmental
authority concerning any action or
condition that may materially adversely
affect the structure, use or occupancy of
the Mortgaged Property;
(d) receipt of any notice of alleged default
from the holder of any lien or security
interest, or any other interest, in the
Mortgaged Property;
(e) commencement of any litigation which may
materially adversely affect the Mortgaged
Property or Grantor's ability to repay the
obligations secured hereby;
(f) receipt of any notice of alleged default
from any tenant of any portion of the
Mortgaged Property; or
(g) any change in the occupancy of the
Mortgaged Property.
Section 4.3 Leases and Restrictions. Grantor hereby
represents that there are no leases, subleases, or agreements to lease or
sublease all or any part of the Mortgaged Property now in effect. Except
with respect to leases entered into at market rates, Grantor hereby
agrees not to lease or allow or suffer to be leased or subleased any part
of or space in the Mortgaged Property from and after the date hereof
without the prior written consent of Grantee, which consent shall not be
unreasonably withheld.
Any grant or lease of use of the Mortgaged Property shall
be subject and subordinate to this Mortgage. Grantor shall, with respect
to any such permitted lease or grant, execute and deliver to Grantee a
collateral assignment of its interest as lessor, in form and substance
satisfactory to Grantee, as additional collateral for the indebtedness
hereby secured, and Grantee will thereupon execute and deliver a
nondisturbance agreement to the lessee.
Grantor will perform, fulfill, comply with and observe
each and every covenant, agreement and condition to be performed,
fulfilled, complied with and observed by Grantor as lessor under any such
lease, and will not suffer or permit any default of Grantor as lessor
thereunder to occur (except defaults which are duly cured within the time
provided therein for the curing thereof).
Except as may be permitted by the Loan Agreement, Grantor
will not convey all or any part of the Mortgaged Property to any lessee
thereof without the prior written consent of Grantee and except upon
express stipulation duly set forth in the deed that any such conveyance
shall not effect a merger of the leasehold estate in the fee except with
the written consent of Grantee.
Grantor shall not, and shall not have the right or power
as against Grantee without its consent, to cancel, terminate, abridge or
materially modify any such lease or to accept prepayments of installments
of rent or other sums due or to become due thereunder.
Grantor covenants and agrees that it will comply with the
terms of, and will promptly perform all of its obligations under, deed or
use restrictions affecting the Mortgaged Property; and in default thereof
(a) Grantee may, at its option, perform the same and the cost thereof,
shall immediately be due from Grantor to Grantee and be secured by this
Mortgage, and (b) subject to the provisions of Section 3.1(c) hereof,
Grantee may, at its option, treat any such default as an event of default
hereunder.
Section 4.4 No Other Financing or Liens. Without the
prior written consent of the Grantee (which consent shall not be
unreasonably withheld) and except for Permitted Encumbrances, Grantor
shall not create or cause or permit to exist any lien or security
interest in the Mortgaged Property, including any fixtures, machinery,
equipment or other items of personal property which are intended to be or
become part of the Mortgaged Property, and shall not incur any
indebtedness for money borrowed to purchase the Mortgaged Property or any
part thereof, other than the indebtedness secured hereby or by any
Permitted Encumbrance.
Section 4.5 No Further Encumbrance; No Disposition.
Without the prior written consent of the Grantee and except as may be
permitted herein or in the Loan Agreement, Grantor shall not grant a
security interest in, mortgage, encumber, hypothecate, sell, transfer,
assign or otherwise dispose of all or any part of the Mortgaged Property,
or any legal or equitable interest therein, or the revenues and receipts
thereof (other than to Grantee hereunder) or assign, transfer or
hypothecate (other than to Grantee hereunder) any rentals or license fees
(or analogous payment) then due or to accrue in the future under any
lease of or license to use the Mortgaged Property or Project Site or any
part thereof, or permit assumption by any third party of Grantor's
obligations under the Loan Agreement or the Note.
Section 4.6 Compliance with Laws and Regulations.
Grantor covenants and agrees that in the maintenance, repair, renewal,
replacement, remodeling, modification, operation and management of the
Mortgaged Property it will observe and comply with all insurance
underwriters' requirements and with all applicable, Federal, state and
local statutes, ordinances, regulations, orders and restrictions,
reserving hereby its right to contest the same, or the application of the
same, so long as such contest shall not prejudice the lien of this
Mortgage nor affect the amounts secured hereby.
Section 4.7 Covenant Running with the Land. Any act
or agreement to be done or performed by Grantor shall be construed as a
covenant running with the land and shall be binding upon Grantor and its
successors and assigns as if they had personally made such agreement.
Section 4.8 Recordation. Grantor, at its expense,
shall cause this Mortgage, any instruments supplemental hereto, financing
statements, including all necessary amendments, supplements and
appropriate continuation statements to be recorded, registered and filed,
and to be kept recorded, registered and filed, in such manner and in such
places as may be required in order to establish, preserve and protect the
lien of this Mortgage as a valid, first mortgage lien on all real
property, fixtures and interests therein included in the Mortgaged
Property and a valid, perfected first priority security interest in all
personal property, fixtures, and interests therein included in the
Mortgaged Property (including in each such case, without limitation, any
such properties acquired after the execution hereof). If requested by
Grantee, but in each case not more than once in each calendar year,
Grantor, at its expense, will furnish to Grantee an opinion of counsel
acceptable to Grantee, specifying the action required and to be taken by
Grantor to comply with this Section 4.8 since the date of this Mortgage
or the date of the most recent such opinion or stating that no such
action is necessary.
Section 4.9 After-Acquired Property. All property of
every kind acquired by Grantor after the date hereof, which by the terms
hereof is intended to be subject to the lien of this Mortgage, shall
immediately upon the acquisition thereof by Grantor, and without further
mortgage, conveyance or assignment, become subject to the lien of this
Mortgage as fully as though now owned by Grantor and specifically
described herein, subject only to Permitted Encumbrances. Nevertheless,
Grantor shall take such actions and execute and deliver such additional
instruments as Grantee shall reasonably require to further evidence or
confirm the subjection to the lien of this Mortgage of any such property.
Section 4.10 Financial Statements. Grantor will keep
proper records and books of account pertaining to the Mortgaged Property
in accordance with generally accepted accounting principles, consistently
applied. All such records and books shall be open at all reasonable
times to inspection by Grantee. As required by the Loan Agreement,
Grantor shall furnish to Grantee such information respecting the business
affairs, operations and financial condition of Grantor as may be
reasonably requested. In case of default hereunder, Grantor will
thereafter furnish to Grantee, on demand, complete monthly statements of
income and expenses showing the operations of the Mortgaged Property.
Grantee shall have the right to audit such statements, as well as
Grantor's books of account and all papers in connection therewith.
Section 4.11 Hazardous Substances.
A Grantor hereby covenants and agrees with Issuer and
the Grantee that the following terms shall have the following meanings
for purpose of this Section 4.11:
(i) "Environmental Laws" mean all federal, state
and local laws, statutes, ordinances and codes relating to the use,
storage, treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance and the rules,
regulations, policies, guidelines, interpretations, decisions, orders and
directives with respect thereto.
(ii) "Hazardous Substance" shall have the same
meaning as given to that term in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), or
any other applicable Environmental Law.
(iii) "Indemnitee" means the Grantee and all
subsequent holders of this Mortgage, their respective successors and
assigns, their respective officers, directors, employees, agents,
representative, contractors and subcontractors and any subsequent owner
of the Mortgaged Property who acquires title thereto from or through
Grantee.
(iv) "Release" has the same meaning as given to
that term in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et sea.) and
the regulations promulgated thereunder.
B Grantor represents and warrants to the Grantee that,
to its knowledge after due investigation: (i) the Mortgaged Property is
not being or has not been used for the storage, treatment, generation,
transportation, processing, handling, production or disposal of any
Hazardous Substance in violation of any Environmental Laws; (ii) the
Mortgaged Property does not contain any Hazardous Substances in violation
of any Environmental Laws; (iii) there has been no Release of any
Hazardous Substance on, at or from the Mortgaged Property or any property
adjacent to or within the immediate vicinity of the Mortgaged Property
and Grantor has not received any form of notice or inquiry with regard to
such a Release or the threat of such a Release; (iv) no event has
occurred with respect to the Mortgage Property which, with the passage of
time or the giving of notice, or both, would constitute a violation of
any applicable Environmental Law; (v) there are no agreements or orders
or directives of any federal, state or local governmental agency or
authority relating to the Mortgaged Property which require any
containment, clean up, investigations, studies, removal or other remedial
action with respect to the Mortgaged Property; and (vi) there are no
actions, suits, claims or proceedings, pending or threatened, which seek
any remedy that arise out of the condition, ownership, use, operation,
sale, transfer or conveyance of the Mortgaged Property and (a) a
violation or alleged violation of any applicable Environmental Law, (b)
the presence of any Hazardous Substance or a Release of any Hazardous
Substance or the threat of such a Release, or (c) human exposure to any
Hazardous Substance.
C Grantor covenants and agrees with the Grantee as
follows:
(i) Grantor shall keep, and shall cause all
operators, tenants, subtenants, licensee and occupants of the Mortgaged
Property to keep the Mortgaged Property free of all Hazardous Substances,
except for hazardous Substances stored, treated, generated, transported,
processed, handled, produced or disposed of in the normal operation of
the Mortgaged Property as a tire recycling facility, and in accordance
with all Environmental Laws.
(ii) Grantor shall comply with, and shall cause
all operations, tenants, subtenants, licensees and occupants of the
Mortgaged Property to comply with, all Environmental Laws.
(iii) Grantor shall promptly provide Grantee with
a copy of all notifications which it gives or receives with respect to
any past or present Release of any Hazardous Substance or the threat of
such a Release on, at, from or affecting the Mortgaged Property or any
property adjacent to or within the immediate vicinity of the Mortgaged
Property.
(iv) Grantor shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
required in accordance with all Environmental Laws and all removal and
other remedial actions necessary to contain, remove and clean up all
Hazardous Substances that are determined to be present on the Mortgaged
Property in violation of any Environmental Laws.
(v) Grantee shall have the right, but not the
obligation, to cure any violation by the Grantor of the Environmental
Laws and Grantee's cost and expense to so cure shall be secured by this
Mortgage.
D Grantor covenants and agrees, at its sole cost and
expense, to indemnify, defend and save harmless Indemnitee from and
against any and all damages, losses, liabilities, obligations, penalties,
claims, litigation, demands, defenses, judgments, suits, actions,
proceedings, costs, disbursements and/or expenses (including, without
limitation, reasonable attorneys' and experts' fees and expenses) of any
kind or nature whatsoever which June at any time be imposed upon,
incurred by or asserted or awarded against Indemnitee arising out of the
condition, ownership, use, operation, sale, transfer or conveyance of the
Mortgaged Property and, during the period of Grantor's ownership, use or
possession of the Mortgaged Property, (i) the storage, treatment,
generation, transportation, processing, handling, production or disposal
of any Hazardous Substance, (ii) the presence of any Hazardous Substance
or a Release of any Hazardous Substance or the threat of such a Release,
(iii) human exposure to any Hazardous Substance, (iv) a violation of any
Environmental Law, or (v) a material misrepresentation or inaccuracy in
any representation or warranty or material breach of or failure to
perform any covenant made by the Grantee herein (collectively, the
"Indemnified Matters").
The liability of the Grantor to Indemnitee hereunder shall
in no way be limited, abridged, impaired or otherwise affected by (a) the
repayment of all sums and the satisfaction of all obligations of the
Grantee under the Note or this Mortgage, (b) the foreclosure of this
Mortgage or the acceptance of a deed in lieu thereof, (c) any amendment
or modification of the Related Documents by or for the benefit of Grantor
or any subsequent owner of the Mortgaged Property, (d) any extensions of
time for payment or performance required by any of the Related Documents,
(e) the release or discharge of this Mortgage or of the Grantor, any
guarantor of the amounts secured by the Mortgage or any other person from
the performance of observance of any of the agreements, covenants, terms
or conditions contained in any of the Related Documents whether by
Grantee, by operation of law or otherwise, (f) the invalidity or
unenforceability of any of the terms or provisions of the Related
Documents, (g) any exculpatory provision contained in any of the Related
Documents limiting Grantee's recourse to property encumbered by this
Mortgage or to any other security or limiting Grantee's rights to a
deficiency judgment against the Grantor, (h) any applicable statute of
limitations, (i) the sale or assignment of the Note or this Mortgage, (j)
the sale, transfer or conveyance of all or part of the Mortgaged
Property, (k) the dissolution or liquidation of Grantor, or (l) any other
circumstances which might otherwise constitute a legal or equitable
release or discharge, in whole or in part, of Grantor under the Note or
this Mortgage.
The foregoing indemnity shall be in addition to any and
all other obligations and liabilities Grantor may have to Grantee at
common law.
(End of Article IV)
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices, certificates,
requests or other communications hereunder shall be sufficiently given
and shall be deemed given when mailed by registered or certified mail,
postage prepaid, addressed to the appropriate Notice Addresses.
Section 5.2 Amendments, Changes and Modifications.
Except as may otherwise be provided in the Loan Agreement, this Mortgage
may not be effectively amended, changed, modified or altered without the
prior written consent of the party against whom enforcement of such
amendment, change, modification or alteration is sought.
Section 5.3 Execution Counterparts. This Mortgage may
be executed in several counterparts, each of which shall be regarded as
an original and all of which shall constitute but one and the same
instrument.
Section 5.4 Severability. In case any clause,
provision or section of this Mortgage, or any covenant, stipulation,
obligation, agreement, act, or action, or part thereof, made, assumed,
entered into, or taken under this Mortgage, or any application thereof,
is for any reason held to be illegal, invalid or inoperable, such
illegality, invalidity, or inoperability shall not affect the remainder
thereof or any other clause, provision or section or any other covenant,
stipulation, obligation, agreement, act or action or part thereof, made,
assumed, entered into, or taken thereunder, which shall at the time be
construed and enforced as if such illegal or invalid or inoperable
portion were not contained therein, nor shall such illegality or
invalidity or inoperability of any application thereof affect any legal
and valid and operable application thereof, from time to time, and each
such clause, provision or section, covenant, stipulation, obligation,
agreement, act, or action, or part thereof shall be deemed to be
effective, operative, made, entered into or taken in the manner and to
the full extent from time to time permitted by law.
Section 5.5 General Waivers By Grantor. Grantor
hereby waives and releases, to the extent permitted by law:
(a) all errors, defects and imperfections in
any proceeding instituted by Grantee
hereunder or under the Note or the Loan
Agreement;
(b) all benefit that might accrue to Grantor by
virtue of any present or future law
exempting the Mortgaged Property, or any
part of the proceeds arising from any sale
thereof, from attachment, levy or sale on
execution, or providing for any stay of
execution, exemption from civil process or
extension of time for payment;
(c) any appraisement, valuation, stay,
extension or redemption or usury law now or
hereafter in force and all rights of
marshalling of assets in the event of any
sale of the Mortgaged Property or any part
thereof or interest therein, it being
understood and agreed that any court having
jurisdiction to foreclose the lien hereof
may sell the Mortgaged Property in part or
as an entirety; and
(d) unless specifically required herein, all
notices of or Grantor's default or of
Grantee's election to exercise, or
Grantee's actual exercise, of any option or
remedy hereunder or under the Note or the
Loan Agreement.
Section 5.6 Effect of Mortgage. This Mortgage
constitutes a security agreement under the Uniform Commercial Code as
adopted in the State of Florida and creates a security interest in favor
of Grantee in and to all that property (and the proceeds, accessions and
replacements thereof, and the proceeds of any insurance on such property)
included in the Mortgaged Property which constitutes fixtures or personal
property. Grantor shall execute, deliver, file and refile any financing
statements, continuation statements, or other security agreements Grantee
may require from time to time to confirm the lien of this Mortgage with
respect to such property. If certificates of title are issued with
respect to any such property, Grantor will cause the interest of the
Grantee to be properly noted thereon. Without limiting the foregoing
Grantor hereby irrevocably appoints each Grantee attorney-in-fact for
Grantor to execute, deliver and file such instruments for and on behalf
of Grantor. Notwithstanding any release of any or all of that property
included in the Mortgaged Property which is deemed "real property," any
proceedings to foreclose this Mortgage, or its satisfaction of record,
the terms hereof shall survive as a security agreement with respect to
the security interest created hereby and referred to above until the
repayment or satisfaction in full of the obligations of Grantor as are
now or hereafter evidenced by the Notes or otherwise secured hereby.
Nothing herein shall preclude Grantee from proceeding as to both real and
personal property in accordance with Grantee's rights and remedies in
respect of real property, as provided in the Uniform Commercial Code as
adopted in Florida.
Section 5.7 Maximum Indebtedness. Grantor and Grantee
intend and agree that this Mortgage shall secure unpaid balances of any
loan advances, whether obligatory or not, made by the Grantee after this
Mortgage is delivered to the Clerk for record to the extent that the
total unpaid loan indebtedness, exclusive of interest thereon, does not
exceed the maximum amount of unpaid loan indebtedness which may be
outstanding at any time, which is $1,000,000.
Section 5.8 No Merger. It being the desire and
intention of the parties hereto that this Mortgage and the lien thereof
do not merge in fee simple title to the Mortgaged Property, it is hereby
understood and agreed that should the Grantee acquire any additional or
other interest in or to the Mortgaged Property or the ownership thereof,
then, unless a contrary intent is manifested by the Grantee as evidenced
by an appropriate document duly recorded, this Mortgage and the lien
thereof shall not merge, and that this Mortgage may be foreclosed as if
owned by a stranger to the leasehold title. It is further the intention
and desire of the parties that the leasehold title to the Mortgaged
Property cannot merge with the fee simple title interest to the Mortgaged
Property without the prior written consent of Grantee.
Section 5.9 Captions. The captions or headings in
this Mortgage are for convenience only and in no way define, limit or
describe the scope or intent of any provisions of this Mortgage.
Section 5.10 Governing Law. This Mortgage shall be
deemed to be a contract made under the laws of the State of Alabama and
for all purposes shall be governed by and construed in accordance with
the laws of the State of Alabama, and the Loan secured by this Mortgage
shall be deemed, for all purposes, to have been made in the State of
Alabama, regardless of the location of any property securing the same..
(End of Article V)
IN WITNESS WHEREOF, the parties have executed this
Mortgage as of the day and year first above written.
GRANTOR:
WASTEMASTERS OF PALM BEACH, INC.
By: /s/ X.X. Xxxxxxxx, Xx. its Pres.
------------------------------------
President
GRANTEE:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
XXXXXXX X. XXXXXX
/s/ C. Xxxxx Xxxxxxx
-------------------------------------
C. XXXXX XXXXXXX
ACKNOWLEDGMENTS
STATE OF FLORIDA )
COUNTY OF PALM )
On this 31st day of July, 1998, before me, a Notary Public
duly commissioned, qualified and acting within and for the County and
State aforesaid, appeared in person the within named R. Xxxx Xxxxxxxx,
Xx., President of WASTEMASTERS OF PALM BEACH, INC., a Florida
corporation, to me personally known, who stated that he was duly
authorized to execute the foregoing instrument and further stated and
acknowledged that he had so signed, executed and delivered the foregoing
instrument for the consideration, uses and purposes therein mentioned and
set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this 31st day of July, 1998.
/s/ Xxxxx X. Xxxxxx
------------------------------------
[SEAL] Notary Public
My commission expires:
_______________________
NOTARY SEAL
STATE OF ALABAMA )
COUNTY OF XXXXXXXXXX)
On this 30th day of July, 1998, before me, a Notary Public
duly commissioned, qualified and acting within and for the County and
State aforesaid, appeared in person the within named Xxxxxxx X. Xxxxxx,
to me personally known, who stated that he was duly authorized to execute
the foregoing instrument and further stated and acknowledged that he had
so signed, executed and delivered the foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this 30th day of July, 1998.
/s/ Xxxx Xxxxxx Cash
------------------------------------
[SEAL] Notary Public
My commission expires: May 30, 0000
XXXXX XX XXXXXXX )
COUNTY OF XXXXXXXXXX )
On this 30th day of July, 1998, before me, a Notary Public
duly commissioned, qualified and acting within and for the County and
State aforesaid, appeared in person the within named C. Xxxxx Xxxxxxx, to
me personally known, who stated that he was duly authorized to execute
the foregoing instrument and further stated and acknowledged that he had
so signed, executed and delivered the foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this 30th day of July, 1998.
/s/ Xxxx Xxxxxx Cash
[SEAL] Notary Public
My commission expires: May 30, 1999
EXHIBIT "A"
PARCEL 1:
The West One-Half (W1/2) of Tract 00, Xxxxx 0, XXX XXXX XXXXX XXXXX XX.
XXXX NO. 3, according to the Plat thereof on file in the Office of the
Clerk of the Circuit Court in and for Palm Beach County, Florida,
recorded in Plat Book 2, Page 45, said lands situate, lying and being in
Palm Beach County, Florida. LESS the North 134 feet thereof.
PARCEL 2:
The East One-Half (E1/2) of Tract 00, Xxxxx 0, XXX XXXX XXXXX XXXXX XX.
XXXX NO. 3, according to the Plat thereof of file in the Office of the
Clerk of the Circuit Court in and for Palm Beach County, Florida,
recorded in Plat Book 2, Page 45, said lands situate, lying and being in
Palm Beach County, Florida. LESS the South 15 feet thereof for road
right-of-way purposes.
