MORTGAGE
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THIS MORTGAGE, made and executed effective as of the 21st day of December,
1995, by MIAMI GARDENS ASSOCIATES, a New Jersey general partnership, whose
address is c/o Xxxxxxx X. XxXxxx, Xxxxxx Realty Co., 0000 Xxxxx Xxxxxxx Xxxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Mortgagor"), and
delivered to LIFE INVESTORS INSURANCE COMPANY OF AMERICA, an Iowa corporation,
whose address is c/o AEGON USA Realty Advisors, Inc., 0000 Xxxxxxxx Xxxx, X.X.,
Xxxxx Xxxxxx, Xxxx 00000 (hereinafter referred to as "Mortgagee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Mortgagor is justly indebted to Mortgagee in the principal sum of
SIX MILLION EIGHT HUNDRED THOUSAND AND NO/100 ($6,800,000.00) advanced to or on
behalf of Mortgagor this date by Mortgagee, together with interest thereon, as
evidenced by that one certain "Promissory Note" dated of even effective date
herewith in the original principal amount of SIX MILLION EIGHT HUNDRED THOUSAND
AND NO/100 DOLLARS ($6,800,000.00) (the "Note"), made by Mortgagor in favor of
Mortgagee and providing for the balance of the indebtedness if not sooner paid
to be due and payable on December 21, 2002 (the "Maturity Date");
NOW, THEREFORE, in order to secure the Mortgagee for the repayment of the
indebtedness evidenced by the Note, together with interest thereon and the
performance of all covenants of Mortgagor herein contained, and for other good
and valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged by Mortgagor, Mortgagor does hereby mortgage, grant, bargain, sell,
release, and convey to Mortgagee, its successors and assigns, the following
described property (the "Land") located in the County of Dade, State of
Florida:
LANDS DESCRIBED IN EXHIBIT "A" ATTACHED HERETO,
MADE A PART HEREOF, AND INCORPORATED BY
REFERENCE HEREIN
which has the address of 8515 - 0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx, together
with: (i) all buildings, structures, betterments, and other improvements of any
nature now or hereafter situated in whole or in part upon the Land, regardless
of whether physically affixed thereto or severed or capable of severance
therefrom (the "Improvements"); (ii) the benefit of all easements and other
rights of any nature whatsoever appurtenant to the Land or the Improvements, or
both, including the benefit of all rights of way, streets, alleys, passages,
railroad sidings, drainage rights, sewer rights, and rights of ingress and
egress to the Land and all adjoining property, whether now existing or hereafter
arising, together
with the reversion or reversions and remainder or remainders, and specifically
including the benefit of those declarations, easements, covenants, restrictions
and agreements, if any, set forth on Exhibit "A" attached hereto (collectively,
the "Easement Agreements"); (ii) all heating, plumbing, refrigeration, lighting,
appliances, machinery, equipment, and fixtures now or hereafter attached thereto
or used in connection therewith, and owned by Mortgagor (the "Fixtures"); (iv)
the hereditaments, appurtenances, servitudes, rights, ways, privileges,
prescriptions, advantages, and all other rights thereto belonging or in anywise
now or hereafter incident or appertaining thereto; (v) all right, title and
interest of Mortgagor in and to that certain right of first refusal from
XxXxxxxx'x Corporation in favor of Mortgagor, as further described in that
certain Special Warranty Deed dated October 14, 1994, recorded in Official
Record Book 16560, Page 1767, of the Public Records of Dade County, Florida;
(vi) all right, title, and interest of Mortgagor in and to that certain
"Agreement for Water and Sanitary Sewage Facilities and for the Provision of
Water and Sewage Disposal Services" recorded in Official Records Book 14285,
Page 3012, as amended or affected by Instruments recorded in Official Records
Book 14500, Page 2929, and Official Records Book 16459, Page 4993, all of the
Public Records of Dade County, Florida (the "Utility Agreement"); and (vii) the
reversion and reversions, the remainder and remainders, revenues, income, rents,
issues, and profits of all of the foregoing (the Land and all of the foregoing
property described in items (i) through (vii) above being collectively hereafter
referred to as the "Mortgaged Premises").
TO HAVE AND TO HOLD the Mortgaged Premises unto the Mortgagee, its
successors and assigns, forever.
1. This Mortgage is made to secure payment of a debt in the principal sum
of SIX MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($6,800,000.00) with
interest thereon, evidenced by the Note, the terms of which are incorporated
herein by reference and made a part hereof, executed by Mortgagor, payable to
the order of Mortgagee, being payable in monthly installments of principal and
interest of FIFTY-TWO THOUSAND TWO HUNDRED THIRTEEN AND 51/100 DOLLARS
($52,213.51) each commencing on the first day of February, 1996, and continuing
thereafter on the first day of each month until the principal and all accrued
interest are fully paid, except that the final payment of principal and all
accrued interest, if not sooner paid, shall be due and payable on the Maturity
Date. The interest rate under the Note is Seven and Ninety-Four One Hundredths
Percent (7.94%) per annum.
2. The Note is also secured by a "Security Agreement" of even effective
date herewith (the "Security Agreement") made by Mortgagor in favor of
Mortgagee, and by an "Assignment of Leases, Rents and Contracts" (the
"Assignment") made by Mortgagor in favor of Mortgagee of even effective date
herewith. The Security Agreement, the Assignment, the Environmental Agreement
(as hereinafter defined), and all other documents and instruments securing or
evidencing the indebtedness secured hereby and the Note, including all renewals,
replacements, substitutions, amendments, extensions, and consolidations thereof,
hereinafter are sometimes collectively referred to as the "Other Loan
Documents." The Mortgaged Premises and all of the other security described in
the Other Loan Documents hereinafter are sometimes collectively referred to as
the "Security".
3. This Mortgage is made to further secure payment of all other amounts
with interest thereon becoming due and payable to the holder of the Note under
the terms of the Note, this Mortgage, or any of the Other Loan Documents,
including, but not limited to, any extensions, renewals, or re-amortizations of
said debt, any increases or additions thereto, any prepayment charges, any
liquidated damages due under the Note, and all other loans or advances which
Mortgagee has previously made or may hereafter make to Mortgagor and any and all
other renewals or extensions of the same or any part thereof, to secure all
costs, expenses, losses, and damages sustained or incurred by Mortgagee because
of any Event of Default under (and as defined in) the Note, this Mortgage, or
any of the Other Loan Documents, or in realizing upon, protecting, perfecting,
defending, or enforcing, or any of them, the Note, this Mortgage or any of the
Other Loan Documents, including attorneys' fees and costs prior to trial, at
trial, on appeal, and in any bankruptcy,
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insolvency, or similar proceedings, and in collecting upon or enforcing any
judgment, all of which Mortgagor hereby covenants and agrees to pay; to secure
advances made to protect the Mortgaged Premises; to secure the payment and
performance of all obligations, representations, warranties, indemnities and
agreements arising under that certain "Environmental Indemnification Agreement"
(the "Environmental Agreement") dated of even effective date herewith and given
by Mortgagor in favor of Mortgagee; and to further secure the performance and
discharge of each and every promise, obligation, covenant and agreement of the
Mortgagor contained in the Note, this Mortgage, or any of the Other Loan
Documents executed by Mortgagor pertaining to said debt or the security
therefor.
4. The Mortgagor hereby relinquishes and waives all rights under and by
virtue of any applicable homestead laws, and covenants, represents, and warrants
to Mortgagee that it is lawfully seized of the Mortgaged Premises in fee simple
and that they are free from all encumbrances, except as expressly listed in
Exhibit "B" attached hereto and incorporated by reference herein (the "Permitted
Encumbrances"), and hereby covenants to warrant and defend the title of the
Mortgaged Premises against the claims of all persons whomsoever, except for the
Permitted Encumbrances.
ARTICLE I
Mortgagor further covenants with and represents and warrants to Mortgagee
that:
1. Mortgagor has good, full, complete, and indefeasible fee simple title
to the Mortgaged Premises, free and clear of all liens and encumbrances, other
than the Permitted Encumbrances.
2. This Mortgage is and will remain a valid and enforceable first lien on
the Mortgaged Premises, subject to the lien of real estate taxes for the year
1996 and subsequent years, which are not yet due and payable.
3. All information and financial statements furnished or to be furnished
to the Mortgagee by or on behalf of Mortgagor or its General Partners (as
hereinafter defined) in connection herewith or the Note or any of the Other Loan
Documents, or in connection with or pertaining to the Mortgaged Premises, are
true and correct and are not misleading.
4. The Note, the Mortgage, all of the Other Loan Documents, and all
instruments and agreements executed in connection therewith or the transaction
with which the Note is given, are valid and binding obligations of the parties
thereto, enforceable in accordance with their terms.
5. The use, occupancy, and operation of the Mortgaged Premises (including
the height, size, and location of all Improvements thereon) is in compliance
with all restrictive covenants and conditions applicable to the Mortgaged
Premises, including without limitation, those set forth in any of the Easement
Agreements. In addition to the Easement Agreements, certain restrictive
covenants have been imposed on one or more of the outparcels abutting the
Mortgaged Premises for the benefit of the Mortgaged Premises pursuant to the
following instrument: that certain "Declaration of Restrictions" recorded in
Official Records Book 14550, Page 2596, of the Public Records of Dade County,
Florida (the "Outparcel Restrictions").
6. The Mortgaged Premises has good and sufficient abutting access to N.W.
186th Street, which is a paved, dedicated public right-of-way that has been
accepted for maintenance by a governmental authority having jurisdiction.
7. Except for the Easement Agreements that benefit the Mortgaged
Premises, the Mortgaged Premises is operated independently of any surrounding
land and so
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xxxxxxx, xxxxxxxx, utility line or facility, parking lot or area, or other
improvement, facility or structure located on any private land serves the
Mortgaged Premises.
8. The Easement Agreements and the Outparcel Restrictions are valid and
enforceable according to their respective terms and are in full force and
effect.
9. All of the development and construction obligations required to be
performed by Mortgagor or the owner of all or any portion of the Mortgaged
Premises under any of the Easement Agreements, any of the Key Leases, that
certain "Declaration of Restrictive Covenants In Lieu of Unity of Title"
recorded in Official Records Book 14890, Page 846, of the Public Records of
Dade County, Florida, or any license, permit, or other approval issued by any
governmental agency or authority or utility have been fully performed,
completed, paid for, and accepted, and the Mortgaged Premises as now
constructed, used, and occupied is in full compliance with all of the terms
and conditions thereof.
10. Neither the Mortgaged Premises nor any tenant or other occupant
thereof, is in violation of any of the restrictions, covenants, terms, or
conditions set forth in any of the Easement Agreements.
11. Except for those certain lands subject to the easements created by
the Easement Agreements, no property (including any improvements now or
hereafter located thereon) adjacent or in proximity to the Mortgaged Premises
owned by Mortgagor or any of its partners, or any of their respective officers,
directors, or stockholders, or any entity in which any of them has an interest:
(i) has been planned, used, or developed along with the Mortgaged Premises
pursuant to a unified plan of development; (ii) has been shown together with the
Mortgaged Premises on a master plan submitted to any governmental agency or
authority; (iii) now shares in any of the infrastructure serving the Mortgaged
Premises; or (iv) has been advertised in common with the Mortgaged Premises.
12. All of the obligations on the part of Mortgagor or the owner of the
Mortgaged Premises (including, without limitation, the construction of all
on-site and off-site water treatment and sewage collection and disposal lines
and facilities and the payment of all connection fees and charges,
administrative fees, and other charges, fees, and costs) arising under the
Utility Agreement have been fully paid and performed, all dedications and
work required to be performed thereunder have been unconditionally approved
and accepted by Metropolitan Dade County, the average daily flow of water to
the Mortgaged Premises does not presently (and is not currently anticipated
to) exceed 11,472 gallons per day, Mortgagor has received no notice of any
intent to impose additional connection fees or charges under the Utility
Agreement, and there are no defaults or alleged defaults under the Utility
Agreement.
13. Mortgagor is a general partnership formed and in good standing under
the laws of the State of New Jersey; is presently qualified to do business in
the State of Florida and each of its general partners has an appointed
registered agent in Florida; and has otherwise complied with all laws of the
State of Florida relating to foreign general partnerships. The sole general
partners of Mortgagor are:
a. Garden Square Associates, L.P., a Delaware limited partnership
("Garden Square"), which is a limited partnership formed and in good
standing under the laws of Delaware, and authorized to do business in the
State of Florida as Garden Square Associates of Delaware, Ltd. The sole
general partner of Garden Square is Englewood Gardens, Inc., a Florida
corporation ("Englewood Gardens"), formed and in good standing under the
laws of Florida.
b. GSG Partners III, L.P., a Delaware limited partnership ("GSG
Partners"), which is a limited partnership formed and in good standing
under the laws of Delaware, and authorized to do business in the State of
Florida as GSG Partners III, Ltd. The sole general partner of GSG Partners
is GSG Investors III, Inc., a Delaware corporation ("GSG Investors"), which
is a corporation formed and
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in good standing under the laws of Delaware, and authorized to do business
in the State of Florida.
c. BMC Garden Square Investment, Inc., a Florida corporation ("BMC
Garden"), which is a corporation formed and in good standing under the laws
of Florida.
Garden Square, GSG Partners and BMC Garden are sometimes collectively referred
to as the "General Partners."
14. The Key Leases (as hereinafter defined) and any applicable Key Tenant
Guaranties (as such terms are defined herein) are each in full force and effect
in accordance with their respective terms; (b) none of the Key Leases has been
modified, amended, or terminated; (c) all construction required to be performed
by Mortgagor or the landlord under each of the Key Leases has been fully
completed and accepted and all tenant allowances due thereunder have been paid;
(d) there are no existing or alleged defaults or violations under any of the Key
Leases and no Key Tenant (as such term hereinafter is defined) thereunder is
entitled to any setoff or deduction against any of the rents or other sums due
thereunder; (e) all brokerage commissions, if any, due or payable with respect
to any of the Key Leases have been paid in full; (f) none of the exclusive use
rights or restrictive covenants set forth in any of the Key Leases has been
violated; (g) Mortgagor owns the fee simple title to all buildings and
improvements constructed by the landlord or the tenant under each of the Key
Leases, free and clear of all liens and encumbrances, except the Permitted
Encumbrances; (h) the minimum number of parking spaces required to be provided
under each of the Key Leases is now provided on the Land; (i) Mortgagor has not
received notice that any of the Key Tenants intends to close its retail store
operations on the Mortgaged Premises; and (j) there are no options to expand any
Key Tenant's leased premises under any of the Key Leases.
ARTICLE II
The Mortgagor covenants and agrees with the Mortgagee as follows:
1. That it will pay the indebtedness secured by this Mortgage at the times
and in the manner provided in the Note, this Mortgage, and the Other Loan
Documents.
2. Prepayment of the Note, in whole or in part, is restricted, all as
more particularly provided in the Note. The Note provides that any prepayment
(whether voluntary or involuntary) of the Note, except for such prepayments made
on or after September 21, 2002, shall be accompanied by a prepayment charge, as
more particularly described in the Note, which is secured by the lien of this
Mortgage.
The Note provides that in the event that any monthly installment due
thereunder or any part thereof is not received by Mortgagee within ten (10) days
after the same shall be due, Mortgagor shall pay a late charge of five percent
(5%) of the portion of such installment that remains unpaid.
3. a. That in order to more fully protect the security of this
Mortgage, Mortgagor, together with, and in addition to, the monthly installments
of principal and interest payable under the terms of the Note secured hereby,
commencing on February 1, 1996, and continuing on the first day of each month
thereafter until the said Note is fully paid, will pay to the Mortgagee (or such
affiliate or agent of Mortgagee as Mortgagee may designate) a sum equal to the
Monthly Escrow Payment (as hereinafter defined). All such sums (the "Deposited
Funds") shall be held by Mortgagee (or such affiliate or agent of Mortgagee as
Mortgagee may designate), without interest, in accordance with the terms
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herein set forth to pay Taxes (as hereinafter defined) on the next occurring Tax
Discount Date (as hereinafter defined), to pay Insurance Premiums (as
hereinafter defined) on the date that the same next become due, and to establish
the Escrow Reserve (as hereinafter defined). The Deposited Funds may be
commingled with the funds of Mortgagee (or such agent or affiliate of Mortgagee
as Mortgagee may designate) and no interest shall accrue or be payable thereon
in favor of Mortgagor. Provided that no Event of Default (as hereinafter
defined) then exists and that the Deposited Funds (less the amount of the Escrow
Reserve Funds required to be retained, as hereinafter defined and provided) then
held by Mortgagee (or any such affiliate or agent designated by Mortgagee) are
sufficient to pay the Taxes and Insurance Premiums, Mortgagee shall pay the
Taxes and the Insurance Premiums at the times aforesaid.
b. As utilized herein: (i) the term "Taxes" shall mean all ad valorem
taxes and assessments due on the Mortgaged Premises covered by this Mortgage and
all Fixtures and Tangible Property (the term "Tangible Property," as utilized in
this Mortgage, having the same meaning ascribed to it in the Security Agreement)
located thereon or used in connection therewith; (ii) the term "Insurance
Premiums" shall mean all premiums or other charges due and payable on policies
of insurance required to be maintained by Mortgagor under Article II, Paragraph
7, of this Mortgage or elsewhere in this Mortgage or any of the Other Loan
Documents; and (iii) the term "Tax Discount Date" shall mean the last date when
Taxes may be paid at the maximum available discount rate for early payment as
provided by applicable law.
c. As utilized herein: (i) the term "Monthly Tax Payment" shall
mean an amount equal to one-twelfth (1/12th) of one hundred five percent
(105%) of the amount that was required to pay Taxes on the last occurring Tax
Discount Date (as such base amount is adjusted by Mortgagee, in its sole but
reasonable determination, to take into account known or anticipated changes
that will affect the amount of Taxes due on the next occurring Tax Discount
Date, including, without limitation, changes in tax rates, special
assessments, and adjustments in assessed values); (ii) the term "Monthly
Insurance Premium Payment" shall mean an amount equal to one-twelfth (1/12th)
of one hundred five percent (105%) of the amount that was required to pay
Insurance Premiums on the date when such Insurance Premiums were last due (as
such base amount is adjusted by Mortgagee, in its sole but reasonable
determination, to take into account known or anticipated changes that will
affect the amount of Insurance Premiums next due, including, without
limitation, changes in replacement values and premium rates); (iii) the term
"Monthly Reserve Payment" shall mean an amount equal to one-twelfth (1/12th)
of (A) twice the sum of the then required Monthly Tax Payment and the then
required Monthly Insurance Premium Payment less (B) the balance of the Escrow
Reserve Funds (as hereinafter defined) at the time of Mortgagee's last
periodic analysis thereof; and (iv) the term "Monthly Escrow Payment" shall
mean the sum of the Monthly Tax Payment, Monthly Insurance Payment, and
Monthly Reserve Payment then required by Mortgagee.
d. In addition to the Monthly Escrow Payments, contemporaneously
with the execution and delivery of this Mortgage, Mortgagor will pay to
Mortgagee (or such affiliate or agent of Mortgagee as Mortgagee may designate)
a sum equal to the aggregate of (i) the Monthly Tax Payments that would have
been due (had this Mortgage then been in effect) commencing on the most
recently occurring December 1 prior to the effective date of this Mortgage and
on the first day of each successive calendar month thereafter until and
including the first day of the calendar month immediately following the
effective date of this Mortgage, and (ii) the Monthly Insurance Premium
Payments that would have been due (had this Mortgage then been in effect)
commencing on the first day of the first calendar month after the month in
which the Insurance Premiums were last due and on the first day of each
successive calendar month thereafter until and including the first day of the
calendar month immediately following the effective date of this Mortgage. All
such sums shall constitute a part of, and shall be held and disbursed in the
same manner as, the Deposited Funds.
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e. Mortgagor acknowledges and agrees that from and after the twelfth
(12th) Monthly Escrow Payment by Mortgagor (excluding the payments described in
the preceding Subparagraph d.), the Deposited Funds shall at all times include a
reserve (the "Escrow Reserve") equal to twice the aggregate amount of the
Monthly Tax Payments and the Monthly Insurance Premium Payments then being
required by Mortgagee under this Paragraph 3 (the "Escrow Reserve Funds"). If,
at the time of Mortgagee's periodic analysis of the payments required to be made
by Mortgagor pursuant to this Paragraph 3, Mortgagee determines that the Escrow
Reserve Funds exceed the amount required by the preceding sentence, such excess
shall, at Mortgagee's option and provided that no Event of Default is then
existing, either be refunded to Mortgagor or credited, pro rata, against the
Monthly Escrow Payments due prior to the next such periodic analysis.
f. The Monthly Escrow Payment required to be paid each month as
aforesaid and all payments to be made under the Note secured hereby shall be
added together and the aggregate amount thereof shall be paid by the Mortgagor
each month in a single payment to be applied by the Mortgagee to the following
items in such order as Mortgagee, in its sole and absolute discretion, shall
determine:
i. The Monthly Escrow Payment;
ii. Interest on the Note secured hereby;
iii. Amortization of the principal of the Note; or
iv. Any other sum due from Mortgagor to Mortgagee under the
Note, this Mortgage or any of the Other Loan Documents.
Any deficiency in the amount of such aggregate monthly payment shall be payable
on demand.
4. If the total of the Deposited Funds (less the Escrow Reserve Funds
being retained) held by Mortgagee (or any such agent or affiliate designated by
Mortgagee) under Paragraph 3, immediately preceding, shall not be sufficient to
pay such Taxes and Insurance Premiums, as the case may be, in full at the times
aforesaid, then the Mortgagor, within five (5) business days after delivery of
written notice of such insufficiency from Mortgagee, shall pay to the Mortgagee
any amount necessary to make up the deficiency on or before the date the payment
of such Taxes and Insurance Premiums shall be payable as hereinabove provided.
If at any time the Mortgagor shall tender to the Mortgagee in accordance with
the provisions of the Note secured hereby a full payment of the entire
indebtedness represented thereby (including any applicable prepayment charge or
liquidated damages), Mortgagee shall, in computing the amount of such
indebtedness, credit to the account of the Mortgagor all Deposited Funds under
Paragraph 3 immediately preceding which the Mortgagee has not become obligated
to pay. If there shall occur an Event of Default under any of the provisions of
this Mortgage resulting in a public sale of the Mortgaged Premises covered
hereby, or if the Mortgagee acquires the Mortgaged Premises otherwise after the
occurrence of an Event of Default, it shall apply the balance of the Deposited
Funds accumulated under Paragraph 3 immediately preceding as a credit against
the amount of indebtedness of the then remaining unpaid balance under said Note
(including any applicable prepayment charge or liquidated damages) and any other
sums due under this Mortgage and/or any of the Other Loan Documents.
5. That Mortgagor shall pay the Taxes on the Mortgaged Premises and
deliver receipts therefor annually on or before the tenth (10th) day prior to
the Tax Discount Date (except to the extent that provision has been made herein
and is in effect, for the payment of the Taxes by escrow funds deposited with
Mortgagee). Mortgagor will pay all other taxes and ground rents, water, sewer,
utility, and other rents, rates, and charges, other governmental or municipal
charges, or other lawful charges levied or assessed against all or any portion
of the Mortgaged Premises, and if requested by Mortgagee will promptly
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deliver the official receipts showing payment therefor to the Mortgagee not
later than ten (10) days prior to the date that the same become due. If
Mortgagor defaults in the payment of any of the foregoing, the Mortgagee may pay
the same, and any amount so paid, with any penalty or interest thereon, shall be
immediately due and payable, shall be an indebtedness secured by this Mortgage
and the Other Loan Documents, shall bear interest at the "Default Rate"
specified in the Note until paid, and shall be of equal priority with the lien
of this Mortgage.
6. That nothing shall be done on or in connection with the Mortgaged
Premises which may impair the Mortgagee's security hereunder; that Mortgagor
will commit, permit, or suffer no waste, impairment, or deterioration of the
Mortgaged Premises nor any part thereof; the Mortgaged Premises shall be
continuously maintained in good, clean, and sightly order, repair, and
condition by the Mortgagor, at its expense; and Mortgagor will not, without
Mortgagee's prior written consent, make any material change in the use of any
portion of the Mortgaged Premises, or institute or join or acquiesce in, any
action to change the existing zoning or land use classification of all or part
of the Mortgaged Premises.
7. a. That Mortgagor will provide and continuously maintain in full
force and effect insurance providing the following coverages and meeting or
exceeding the following requirements:
i. All risk/open perils special form property insurance with
limits of one hundred percent (100%) of the replacement cost of the
Improvements, Fixtures, and Tangible Property and with no co-insurance
provisions. If the insurer requires co-insurance provisions then the insurer
must provide an agreed amount endorsement satisfactory to Mortgagee. Blanket
policies must include limits by property location.
ii. Broad form boiler and machinery coverage, including a form
of business income, if any such item is located on or about the Mortgaged
Premises at any time.
iii. To the maximum extent available, flood insurance if the
Mortgaged Premises is located, in whole or in part, in a special flood hazard
area, according to the most current flood insurance rate map issued by the
Federal Emergency Management Agency. The coverage shall include any tangible
personal property and fixtures owned by Mortgagor that are located on or used in
connection with the Mortgaged Premises.
iv. A form of business income coverage in the amount of eighty
percent (80%) of one (1) year's business income from the Mortgaged Premises.
Blanket policies must include limits by property location.
v. Comprehensive/general liability coverage on the Mortgaged
Premises with a One Million and No/100 Dollars ($1,000,000.00) combined single
limit per occurrence with a minimum aggregate limit of Two Million and No/100
Dollars ($2,000,000.00). Umbrella/excess liability insurance may be used to
satisfy this requirement.
vi. Liquor liability coverage if applicable law imposes (or may
impose) liability on those selling, serving, or giving alcoholic beverages to
others and if such beverages will be sold, served, or given on any part of the
Mortgaged Premises.
vii. Workers' compensation insurance to meet the requirements of
applicable law.
viii. All such additional coverages as may be appropriate to
the type of the Mortgaged Premises or the site location. Additional coverages
may include
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earthquake, mine subsidence, sinkhole, personal property, supplemental
liability, or coverages of other property-specific risks.
ix. All such coverages as may be required under any of the
Leases or Easement Agreements.
b. All such coverage and insurance shall be in such form and
substance as Mortgagee may require and must be approved prior to the closing of
the loan contemplated hereby and prior to each policy's annual renewal. The
maximum deductible on all coverages and policies shall be $25,000.00. All
required insurance shall be in effect as of the date of execution of this
Mortgage with Insurance Premiums paid one (1) year in advance or with funds
escrowed at closing to provide reserves for the number of months less than
twelve (12) for which said Insurance Premiums are not then paid, and shall be
maintained throughout the term of this Mortgage.
c. Mortgagor will pay promptly not later than thirty (30) days prior
to the date when the same become due the Insurance Premiums for all required
insurance, except to the extent that provision for payment thereof has been made
hereinabove, and is in effect, by escrow funds deposited with Mortgagee.
Mortgagor shall deliver to Mortgagee evidence that all Insurance Premiums have
been paid not later than thirty (30) days prior to the date the same become due.
d. All insurance provided for herein shall be effected under valid
and enforceable policies, in form and substance then standard in the State of
Florida and satisfactory to the Mortgagee, issued by insurers of recognized
responsibility approved by the Mortgagee and possessing a rating of A, Class
XII, or better according to Best's Rating Service, as shown in its latest
available issue. The adequacy of the insurer will be determined on its own
financial merit without consideration of the financial condition of its parent
company or any reinsurer.
e. Upon the execution of this Mortgage, and thereafter upon each
renewal of each policy furnished hereunder, an original (or a certified copy
of each entire policy) shall be delivered to the Mortgagee. If the policy is
not available, a binder will be acceptable for a period not to exceed ninety
(90) days. All binders, certificates of insurance, and original or certified
copies of policies shall name Mortgagor as a named insured or as an additional
insured; include a complete and accurate property address; and shall bear the
original signature of the issuing insurance agent. The all risk/open perils
special form property insurance, flood insurance, loss of business income
coverage, and all other property policies or coverages shall name Mortgagee as
"first mortgagee" under a standard mortgage clause. Mortgagee shall be named
as an "additional insured" on all liability coverages and policies. All such
policies and coverages shall contain an agreement by the insurer that the
insurer will give a minimum of thirty (30) days' prior written notice to
Mortgagee before any cancellation, termination, modification, amendment, or
non-renewal thereof. Any vacancy, change of title, tenant occupancy or use,
physical damage, additional improvements, or other factors affecting any
insurance contract must be reported to Mortgagee immediately.
f. In the event of loss, Mortgagor will give immediate notice by
mail to the Mortgagee, who may make proof of loss if not made promptly by the
Mortgagor, and each insurance company concerned is hereby authorized and
directed to make payment for such loss directly to the Mortgagee instead of the
Mortgagee and Mortgagor, jointly. All such insurance proceeds (the "Insurance
Proceeds") are hereby assigned to Mortgagee, who may, in its sole and absolute
discretion, apply the Insurance Proceeds, or any part thereof, either to the
reduction of such portion of the indebtedness hereby secured as Mortgagee shall
desire or to the restoration or repair of the property damage. Mortgagor agrees
to execute such further assignments of the Insurance Proceeds as Mortgagee may
require. Neither the availability of any such Insurance Proceeds, nor their
receipt or application by Mortgagee, will operate as a waiver of any Event of
Default under this Mortgage, unless Mortgagee elects otherwise in writing. In
the event of
9
foreclosure of this Mortgage or other transfer of title to the Mortgaged
Premises and full or partial extinguishment of the indebtedness secured hereby,
all right, title, and interest of the Mortgagor in and to all insurance policies
then in force shall pass to the purchaser or grantee at the foreclosure sale.
Upon the occurrence of any Event of Default under this Mortgage, all right,
title, and interest of Mortgagor in and to all such insurance policies then in
force, including any and all unearned Insurance Premiums with respect to the
Mortgaged Premises and existing claims with respect to the Mortgaged Premises,
will pass to Mortgagee which, at its option and as attorney-in-fact for
Mortgagor, may then make, settle, and give binding acquittances for claims
under all such policies, and may assign and transfer such policies, or cancel or
surrender them, applying any unearned premiums in such manner as Mortgagee may
elect. The foregoing appointment of Mortgagee as attorney-in-fact for Mortgagor
is coupled with an interest and is irrevocable. Notwithstanding the occurrence
of any casualty, or the availability of any insurance proceeds, Mortgagor will
pay any remaining indebtedness secured hereby in the manner required by the
Note, this Mortgage, and the Other Loan Documents.
8. The clause used to refer to Mortgagee in all policies of insurance
and insurance coverages provided for herein, and any other policies relating
to the Mortgaged Premises procured by the Mortgagor, shall read verbatim as
follows: "Life Investors Insurance Company of America, an Iowa corporation,
and its successors, assigns, and affiliates; as their interest may appear; c/o
AEGON USA Realty Advisors, Inc.; Mortgage Loan Department; 0000 Xxxxxxxx
Xxxx, X.X., Xxxxx Xxxxxx, Xxxx 00000."
9. a. Mortgagor shall not construct, erect, or install any buildings or
other material improvements or structures on the Mortgaged Premises without the
prior written consent of Mortgagee, which consent may be withheld or denied in
Mortgagee's sole and absolute discretion. Mortgagor shall complete in a good
and workmanlike manner any building or other improvements which may be permitted
to be constructed on the Mortgaged Premises and pay when due all claims for
labor performed and materials furnished therefor. All improvements so
constructed shall be insured in the manner provided in Article II, Paragraphs 7
and 8, of this Mortgage.
b. Mortgagor shall comply, and shall cause its tenants to comply
with, all laws, rules, regulations, covenants, conditions, restrictions,
agreements, and legal requirements pertaining to the Mortgaged Premises or the
use, occupancy, operation, improvement, repair, or maintenance thereof,
including, without limitation, the Easement Agreements. Mortgagor shall not
commit or permit any waste thereon, nor commit, suffer, or permit any act to be
done in or upon Mortgaged Premises in violation of any law, ordinance,
regulation, or other legal requirement.
c. Mortgagor will keep and maintain or cause to be kept and
maintained the Mortgaged Premises in good order, condition, and repair,
including the acquisition, installation, operation, and maintenance of all
necessary replacements, renewals, and reconstruction.
d. None of the Improvements or Fixtures shall be removed,
demolished, or materially changed, renovated, remodeled, or altered without
the prior written consent of Mortgagee, which consent may be withheld or
denied in Mortgagee's sole and absolute discretion. Mortgagor will promptly
and in a good and workmanlike manner repair and restore any Improvements or
Fixtures which may be damaged or destroyed.
e. Mortgagor will cause to be provided and maintained all sanitary
sewer, water, electrical, telephone, cable television, storm sewer, and other
services and utilities necessary or desirable for the operation of the Mortgaged
Premises as a retail shopping center.
f. Mortgagor shall cause the Improvements to be treated for pests
(including, but not limited to, termites and other wood destroying organisms)
periodically, with such frequency as may be consistent with good retail shopping
center management
10
practice, and so as to prevent any damage from termites or other wood destroying
organisms from occurring to the Improvements.
10. That in case the Mortgagor (a) fails to pay the Taxes on any of the
Mortgaged Premises on or before the tenth (10th) day prior to the Tax Discount
Date with respect thereto, or (b) fails to pay any other taxes, Insurance
Premiums, assessments, water, other governmental or municipal charges, or
other lawful charges, as herein provided, on or before the thirtieth (30th)
day prior to the date the same become due, or (c) fails to keep the Mortgaged
Premises free from construction or other liens or claims (subject, however, to
Mortgagor's right to satisfy, bond, or otherwise discharge within the
applicable grace period provided by Article III, Subparagraph 4.b. hereof, any
such construction or other liens or claims that are filed against the
Mortgaged Premises without the consent of Mortgagor), or (d) fails to keep the
Mortgaged Premises in the state of repair required hereby, subject to the
provisions of Article III, Subparagraph 4.b. hereof, or (e) fails to comply
with any other term, provision or covenant contained in this Mortgage or any
of the Other Loan Documents (subject to the provisions of Article III,
Paragraph 4, hereof except in the event of an emergency), then Mortgagee may,
without notice or demand, pay or perform the same, and in case of any failure
on the part of the Mortgagor to comply with the covenants hereof, the
Mortgagee may effect such repairs and expend such sums as it may deem
necessary to protect the Mortgaged Premises or any part thereof and/or to
remedy any delinquency or other condition arising from Mortgagor's default,
all at the expense of the Mortgagor. The Mortgagor covenants and agrees to
repay upon demand such sums so paid and all expenses so incurred by the
Mortgagee, with interest thereon from the date any such expense was incurred,
at the "Default Rate" specified in the Note until repaid, and the same shall
be secured by this Mortgage and the Other Loan Documents, and shall constitute
a lien and security interest of equal dignity with the lien and security
interest of this Mortgage and the Other Loan Documents. If Mortgagor fails to
promptly make any such repayment, the whole amount hereby secured shall, if
the Mortgagee so elects, become due and payable forthwith, anything herein
contained to the contrary notwithstanding.
Mortgagee shall not be bound to inquire into the validity of any
apparent or any written tax, assessment, adverse title, lien, encumbrance,
claim, or charge for making an advance for the purpose of preventing, removing,
or paying the same. Mortgagee shall be subrogated to all rights, equities, and
means discharged by any such expenditures.
11. Mortgagor promises and agrees that if, during the existence of this
Mortgage there is commenced or pending any suit, action, arbitration, or other
proceeding affecting the Mortgaged Premises, or any part thereof, it will appear
in and defend any such matter and will pay all costs and damages arising because
of such proceedings. Further, Mortgagor will immediately upon service thereof
deliver to Mortgagee two (2) copies of each notice, petition, summons,
complaint, notice of motion, order to show cause, and all other processes,
pleadings and papers, however designated, served in such action or proceeding.
Any appearance of the Mortgagee in any of the above stated actions shall be at
the Mortgagee's option, and shall be at the sole cost and expense of Mortgagor.
12. a. Should the Mortgaged Premises or any part thereof be taken or
damaged by reason of any public improvement or condemnation proceeding, or in
any other manner, Mortgagee shall be entitled to receive all compensation,
awards, damages, rights of action, proceeds and other payments or relief
therefor, including, without limitation, severance damages, business damages,
damages arising from the change of grade of any street or the access thereto,
the taking of air rights, and damages caused by pollutants and other emissions
(collectively, the "Condemnation Proceeds") (but excluding moving expenses,
business damages, and damages for the loss of leasehold fixtures which are
separately awarded to any tenants of the Mortgaged Premises), and shall be
entitled, at its option, to commence, appear in, and prosecute in its own name,
any action or proceedings, and to make any compromise or settlement in
connection with such taking or damage.
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b. All Condemnation Proceeds and Insurance Proceeds (collectively
the "Proceeds") are hereby assigned to Mortgagee, who may after deducting
therefrom all its expenses, including attorneys' and legal assistants' fees
and costs, release any monies so received by it or apply the same on such
portion of the indebtedness secured hereby as Mortgagee may desire. Mortgagor
agrees to execute such further assignments of the Proceeds as Mortgagee may
require. Notwithstanding any casualty loss or taking, or other injury or
decrease in value, or the availability of any Proceeds for any of the
foregoing, Mortgagor shall continue to pay any remaining indebtedness secured
hereby in the manner required by the Note, this Mortgage, and the Other Loan
Documents. Mortgagee's rights under this Subparagraph b. will survive the
foreclosure or other enforcement of this Mortgage. Mortgagee will have the
right to receive and retain all Proceeds to the extent of any deficiency which
exists upon such foreclosure or other enforcement, together with legal
interest thereon, and to the extent of the reasonable counsel and legal
assistants' fees, costs, and disbursements incurred by Mortgagee in connection
with the collection of such Proceeds. Such rights shall exist whether or not
a deficiency judgment shall have been sought or recovered or denied upon the
Note. The remaining balance of such Proceeds, if any, will inure to the
benefit of the party entitled thereto by applicable law.
13. The waiver by Mortgagee of any default or of any of the provisions,
covenants, and conditions hereof on the part of Mortgagor to be kept and
performed shall not be a waiver of any preceding or subsequent breach of the
same or any other provisions, covenants, or conditions contained herein. The
subsequent acceptance of any sum and payment of any indebtedness secured hereby
or any other payment hereunder by Mortgagor to Mortgagee shall not be construed
to be a waiver of any preceding breach by Mortgagor other than the failure of
Mortgagor to pay the particular sum or portion thereof so accepted, regardless
of Mortgagee's knowledge of such preceding breach at the time of acceptance of
such payment.
14. Mortgagor will not permit or suffer the filing of any mechanic's lien,
materialman's lien, construction lien, or other lien or encumbrance against the
Mortgaged Premises or any part thereof, or any of the revenues, rents, issues,
income, and profits arising therefrom (subject, however, to Mortgagor's right to
satisfy, bond, or otherwise discharge within the applicable grace period
provided by Article III, Subparagraph 4.b., hereof any such mechanic's lien,
materialman's lien, construction lien, or other lien or encumbrance that is
filed against the Mortgaged Premises without the consent of Mortgagor).
15. Mortgagor hereby assigns to Mortgagee its lessor's interest in any
and all leases of the Mortgaged Premises or any portion thereof now or
hereafter entered into by Mortgagor or any other party (collectively, the
"Leases"), together with all rents, issues, incomes, and profits arising
therefrom or in connection with the Mortgaged Premises or any portion
thereof, and all benefits and advantages to be derived from said leases,
together with all rights against guarantors, if any. Mortgagor hereby empowers
Mortgagee, its agents and attorneys, to collect, xxxxxx, xxx for, compromise
and give acquittance for all such rents, issues, incomes, and profits. It is
the intention of the parties that this instrument shall be a present
assignment; however, unless and until an Event of Default shall occur under
this Mortgage, the Note, or any of the Other Loan Documents, Mortgagee shall
not exercise its rights under the preceding sentence and Mortgagor shall have
the right to collect all of the above mentioned rents, issues, incomes and
profits as they accrue and to exercise (subject to the terms and conditions
of this Mortgage and the Other Loan Documents) all of the rights inuring to
Mortgagor with respect thereto. The foregoing rights of Mortgagor constitute
a revocable license in favor of Mortgagor revocable by Mortgagee in
accordance with the terms of this Mortgage and the Other Loan Documents upon
the occurrence of such an Event of Default. Upon the occurrence of any Event
of Default under this Mortgage, the Note, or any of the Other Loan Documents,
Mortgagee, in person, by agent, or by judicially appointed receiver, shall be
entitled to collect all of the above-mentioned rents, issues, incomes, and
profits, without taking possession of the Mortgaged Premises or after
entering upon and taking possession of the Mortgaged Premises, and to apply
the same in its sole and absolute discretion. All rents,
12
issues, incomes, and profits collected by Mortgagee or the receiver shall be
applied first to the payment of the cost of the management of the Mortgaged
Premises and the collection of rents, including, but not limited to, the
receiver's fees, and then to the sums secured by this Mortgage. Mortgagee and
the receiver shall be liable to account only for those rents, issues, incomes,
and profits actually received. In addition, upon the occurrence of any such
Event of Default Mortgagor shall remit to Mortgagee or any such receiver all
tenant security deposits and prepaid rents or other charges collected under any
Leases of the Mortgaged Premises. At any time and from time to time, at the
request of Mortgagee, Mortgagor shall execute, acknowledge, and deliver all such
instruments as Mortgagee may deem necessary or desirable to further assure and
confirm the assignment of the Leases, rents, issues, incomes, and profits.
Neither this Mortgage nor the Assignment (nor any of their respective
provisions), nor Mortgagee's enforcement of their respective provisions
(including the receipt of the rents, incomes, issues and profits thereby
assigned), will operate to subordinate the lien and security interest of this
Mortgage or any of the Other Loan Documents to any of the rights of any lessee
under any Lease of any portion of the Mortgaged Premises thereby assigned or to
subject Mortgagee to any liability to any such lessee for the performance of any
obligation of the lessor under any such Lease, unless and until Mortgagee agrees
to such subordination or assumes such liability by an appropriate written
instrument; and all right, title, and interest of each such lessee in and to the
Mortgaged Premises, whether arising by virtue of any such lease or otherwise, at
all times will be and remain subject, subordinate, and inferior to the lien and
security interest of this Mortgage and the Other Loan Documents and all rights,
remedies, powers and privileges of Mortgagee arising under, or by virtue of,
this Mortgage or any of the Other Loan Documents, or any combination.
16. Mortgagor, at its expense, shall provide to Mortgagee from time to
time all such financial statements and other information as Mortgagee may
reasonably request concerning Mortgagor, any of Mortgagor's general partners,
stockholders, or other principals, or any guarantor or indemnitor of all of the
obligations secured by this Mortgage or the operation of the Mortgaged Premises.
Without limitation of the generality of the foregoing, Mortgagor, at its
expense, shall furnish Mortgagee within one hundred twenty (120) days after the
end of each fiscal year of Mortgagor, copies of Mortgagor's balance sheet and
earning statements certified by Mortgagor, together with a complete and accurate
operating statement on the Mortgaged Premises for such fiscal year certified by
Mortgagor (including, without limitation, a complete rent roll listing tenants,
unit numbers, square feet occupied and leased, rents, delinquencies, vacancies,
other income received, and expenses). Mortgagee does not initially require that
such statements be certified by an independent certified public accountant as
having been prepared in accordance with generally accepted accounting
principles, consistently applied. However, Mortgagee, in its reasonable
discretion, shall have the right to require such certification, at Mortgagor's
expense, at any time in the future. Any such future requirement will be deemed
reasonable if an Event of Default shall have occurred or if Mortgagee believes
that any financial information previously provided may have been misleading or
inaccurate. All required statements shall be in such detail as Mortgagee
requests and shall segregate income and expenses attributable to the Mortgaged
Premises. Failure to furnish such statements or the occurrence of any Event of
Default under the Note, this Mortgage, or any of the Other Loan Documents shall
also entitle Mortgagee to cause Mortgagor's books and records pertaining to the
Mortgaged Premises to be audited at the expense of Mortgagor. In such an event
Mortgagor and Mortgagor's successors and assigns agree to cooperate with and
assist Mortgagee and such auditors.
17. Mortgagor shall keep and maintain complete, accurate, and customary
records and books of accounts with respect to all of Mortgagor's business
transactions pertaining to the Mortgaged Premises and shall retain the same
intact throughout the term hereof. Mortgagee shall be entitled at all
reasonable times to inspect, to make notations from, and to photocopy or
microfilm all such records and books of account.
18. Mortgagor agrees at any time and from time to time during the term
hereof and within twenty (20) days after demand therefor from Mortgagee, to
execute and deliver
13
to Mortgagee, or any party designated by Mortgagee, a certificate in recordable
form certifying the amount then due pursuant to this Mortgage and the
obligations secured hereby, the terms of payment thereof, the dates to which
payment have been made, that this Mortgage and all instruments and obligations
secured hereby are in full force and effect, and that there are no defenses or
offsets thereto, or specifying in what regards this Mortgage or such obligations
are not in full force and effect and the nature of any defense or offsets
thereto, together with such other information as Mortgagee may request.
19. Mortgagor shall execute, acknowledge, and deliver to Mortgagee any
and all mortgages, deeds of trust, assignments, transfers, assurances, and
other instruments and documents as Mortgagee from time to time requires for
the better assuring, conveying, assigning, transferring, and confirming unto
Mortgagee the property and rights herein conveyed or assigned or intended now
or hereafter so to be. Without limitation of the foregoing, Mortgagor will
defend, indemnify and hold Mortgagee harmless with respect to any suit or
proceeding in which the validity, enforceability, or priority of the lien or
security interest, or both, created by this Mortgage or any of the Other Loan
Documents, or both, is endangered or attacked, directly or indirectly. If
Mortgagor fails to undertake the defense of any such claim in a timely manner
or, in the Mortgagee's sole determination, fails to prosecute such defense
with due diligence and by appropriate proceedings, then Mortgagee is
authorized to take, at the expense of Mortgagor, all necessary and proper
action and defense of any such claim, including the retention of legal
counsel, the prosecution or defense of litigation, and the compromise or
discharge of claims, including the payment of all costs and reasonable
attorneys' and legal assistants' fees and costs. All costs, expenses, and
losses, if any, so incurred by Mortgagee, including reasonable attorneys'
fees, regardless of whether suit is brought, and for all administrative,
trial, and appellate proceedings, if any, will constitute advances by
Mortgagee as provided in Article II, Paragraph 10, hereof, and will be secured
by and of equal priority with the lien and security interest of this Mortgage
and the Other Loan Documents.
20. Mortgagee may make or cause to be made from time to time reasonable
entries for inspection of the Mortgaged Premises or for any other lawful
purpose.
21. Without the necessity of any further acts of Mortgagor or Mortgagee,
the lien of this Mortgage automatically will extend to and include: (i) any and
all renewals, replacements, substitutions, accessions, proceeds, products, or
additions of or to the Mortgaged Premises: and (ii) any and all monies and other
property that from time to time may, either by delivery to Mortgagee or by any
instrument (including this Mortgage), be subjected to such lien by Mortgagor, or
by anyone on behalf of Mortgagor, or with the consent of Mortgagor, or which
otherwise may come into the possession or otherwise be subject to the control of
Mortgagee pursuant to this Mortgage.
22. Mortgagor will perform all of its obligations as lessor under any and
all present or future Leases of all or any portion of the Mortgaged Premises
and will not commit, permit, or suffer a default by Mortgagor in its
obligations under any such Lease, nor will Mortgagor take any action, nor omit
to take any action, except to the extent expressly permitted by any such
Lease, if such action or omission reasonably may cause the termination of any
such Lease, or otherwise diminish or impair the value of any such Lease.
Mortgagor will not without Mortgagee's prior written consent (which consent
may be withheld or denied in Mortgagee's sole and absolute discretion): (i)
assign any of the Leases or any rents thereunder; (ii) consent to the
cancellation or surrender of any Lease now existing or hereafter made; (iii)
collect rents under any of the Leases for more than one month in advance; (iv)
enter into future Leases unless and until each such Lease has been approved by
Mortgagee as to form, terms, and rentals; or (v) consent to any modification
or amendment of any Lease now existing or hereafter made. Further, Mortgagor
will not consent to any assignment or subletting of any Lease, consent to
material alterations, additions or improvements by the tenant under any Lease,
or consent to any change in use of the Mortgaged Premises by the tenant under
any Lease, without Mortgagee's prior written consent, which consent may be
withheld or denied in Mortgagee's sole and absolute discretion. Mortgagor
shall at all times comply with all
14
applicable laws concerning the holding and disbursement of security deposits and
advance rents. Mortgagor shall furnish Mortgagee with copies of any notice
alleging a default under or terminating any of the Leases promptly following
Mortgagor's receipt thereof. Mortgagor shall furnish Mortgagee with copies of
all sales reports received from any tenant of the Mortgaged Premises promptly
following Mortgagor's receipt thereof. Any act or omission in violation of the
provisions of this Paragraph shall be voidable, at Mortgagee's sole and
exclusive option.
The Leases include, without limitation, all of those certain leases that
are more particularly described in Exhibit "C" attached hereto and incorporated
by reference herein (all of the leases described in attached Exhibit "C" being
hereinafter collectively referred to the "Key Leases" and individually referred
to as a "Key Lease"). As utilized in this Mortgage, the term "Key Tenant" means
the tenant under any one of the Key Leases and the term "Key Tenant Guaranty"
means the guarantor of a Key Tenant's obligations under any one of the Key
Leases.
Without limitation of any of the foregoing provisions of this Paragraph 22,
Mortgagor covenants and agrees as follows:
a. Promptly following Mortgagor's receipt thereof Mortgagor shall
furnish Mortgagee with a copy of: (i) any notice received by Mortgagor (or any
of them) from (or on behalf of) any Key Tenant alleging a default or breach on
the part of the landlord under its Key Lease, and any notice either
terminating its Key Lease, electing to discontinue the operation of its store
or business on the demised premises, exercising any option to renew or extend
its Key Lease, exercising any option to purchase or right of first refusal,
exercising any option to expand its demised premises, pertaining to gross
sales or percentage rentals, tax, insurance, or common area maintenance
charges, any violation of the exclusive use restrictions in its Key Lease,
unauthorized use of the common areas on the Mortgaged Premises, or any
abatement of rental or any offset or deduction against rental, or any other
material notice; and (ii) any notice received by Mortgagor (or any of them)
from (or on behalf of) any Key Tenant Guarantor.
b. Mortgagor simultaneously shall furnish Mortgagee with copies of
all notices sent to any Key Tenant or any Key Tenant Guarantor.
c. Mortgagor (or any of them) shall not, without the prior written
consent of Mortgagee (which consent may be withheld or denied in Mortgagee's
sole and absolute discretion): (i) modify, amend, extend, or renew any Key
Lease or modify or amend any Key Tenant Guaranty; (ii) declare a default
under, terminate, cancel, or accept a surrender of any of the Key Leases,
terminate or accept a surrender of the tenant's right of possession under any
Key Lease, or terminate any Key Tenant Guaranty; (iii) consent to or acquiesce
in any transfer, assignment, hypothecation, or encumbrance by any Key Tenant
of any of its right, title, or interest arising under any of the Key Leases or
all or any portion of the demised premises thereunder or any buildings or
improvements thereon; (iv) consent to or acquiesce in any subletting by the
Key Tenant under any Key Lease of all or any portion of its demised premises;
(v) waive any right inuring to the benefit of the landlord or lessor under any
Key Lease or Key Tenant Guaranty or any applicable law, release any Key Tenant
from any liability or obligation arising under any Key Lease or applicable
law, or release any Key Tenant Guarantor from any liability or obligation
arising under any Key Tenant Guaranty; (vi) consent to or acquiesce in any
material alterations, additions or improvements to any portion of the
Mortgaged Premises by the Key Tenant under any Key Lease; (vii) further assign
any Key Lease or any of the rents thereunder or any Key Tenant Guaranty;
(viii) collect any of the rents due under any Key Lease for more than one (1)
month in advance; (ix) consent to any change or conversion in the use of the
demised premises by any Key Tenant under a Key Lease; (x) permit any Key Lease
to be subordinated to the lien of any mortgage, lien or encumbrance other than
this Mortgage and the Other Loan Documents; (xi) consent to or acquiesce in
any abandonment of the demised premises under any Key Lease by any Key Tenant;
or (xii) take any action, or omit to take any action, that would permit any
Key Tenant to withhold, offset, or deduct any
15
of the rents or other sums due under its Key Lease. Notwithstanding anything
to the contrary contained in this Item c., Mortgagee agrees that: (A)
Mortgagee will consent to any of the matters described in Items (iii), (iv),
(vi) or (ix) above with respect to a Key Lease if Mortgagee's failure to
consent thereto would render Mortgagor in default under such Key Lease; and
(B) Mortgagor may acquiesce in any of the matters described in Items (iii),
(iv), (vi), or (ix) above with respect to a Key Lease to the extent that the
Key Tenant is expressly permitted to take such action under its Key Lease
without Mortgagor's permission or consent.
23. To the extent permitted by law, Mortgagor agrees that Mortgagor will
not at any time insist upon, or plead, or in any manner whatever claim or take
any benefit or advantage of, any applicable present or future stay, extension,
or moratorium law that may affect Mortgagor's performance of the provisions of
this Mortgage, or any of the Other Loan Documents, or any of the Mortgagee's
rights or remedies. Mortgagor will not claim, take or insist upon any benefit
or advantage of any present or future law providing for the valuation or
appraisal of the Mortgaged Premises, or any portion, prior to any sale or sales
that may be made under or by virtue of this Mortgage, nor after any such sale or
sales claim or exercise any right under any applicable present or future
law or otherwise to redeem the Mortgaged Premises, or any portion thereof so
sold. To the extent that Mortgagor lawfully may, Mortgagor expressly waives all
benefit or advantage of any such law or laws, and agrees not to hinder, delay,
or impede the exercise of any right or remedy permitted to be exercised by
Mortgagee but to suffer and permit the exercise of every such right or remedy as
though no such law or laws were in effect. Mortgagor, for itself and all who
may claim under Mortgagor, waives to the extent that it lawfully may all rights
to have the Mortgaged Premises, and any other security for the Note and the
indebtedness evidenced thereby, marshalled upon any foreclosure or otherwise.
24. Any additional sum or sums advanced by the then holder of the Note to
the then owner of the Mortgaged Premises at any time within twenty (20) years
from the date of this Mortgage, with interest thereon at the rate agreed upon
at the time of each additional loan or advance, will constitute a portion of,
be equally secured with, and have the same priority as, the indebtedness
secured hereby and be subject to all of the terms and provisions of this
Mortgage, whether or not such additional loan or advance is evidenced by a
promissory note of the borrowers and whether or not identified by a recital
that it is secured by this Mortgage; provided, however, the aggregate amount
of principal indebtedness outstanding at any one time and secured by this
Mortgage shall not exceed an amount equal to twice the original principal sum
of the Note, plus interest thereon, and plus disbursements made for the
payment of Taxes, levies, or Insurance Premiums on the Mortgaged Premises,
with interest on such advances or disbursements. All advances and
disbursements made by Mortgagee for Taxes, Insurance Premiums or other
disbursements made pursuant to Article II, Paragraphs 10 and 19, of this
Mortgage shall be of equal priority with the lien of this Mortgage. Mortgagor
covenants and agrees that, in the event any loan or advance shall be made to
Mortgagor pursuant to this Paragraph, Mortgagor shall pay all Florida
documentary stamp and intangible taxes, if any, which may be due in connection
with such loan or advance, and that evidence of such payment shall be affixed
to the document containing the written promise to pay or the notice of future
advance, if any. In the event that documentary stamp or intangible taxes
shall hereafter be assessed due to the future advance provisions contained in
this Paragraph, Mortgagor covenants and agrees to pay all such taxes promptly
upon assessment, together with any interest and penalties thereon, and payment
of all such amounts shall be secured by the lien of the Mortgage and the Other
Loan Documents. The provisions of this Paragraph apply regardless of whether
any such advance is characterized as obligatory or optional; but nothing
contained in this Paragraph by itself obligates Mortgagee to make any
additional loans or advances.
25. Mortgagor hereby represents and warrants to Mortgagee that the loan
evidenced by the Note and secured by this Mortgage is a business loan, the
proceeds of which will be used for the purpose of carrying on the business of
Mortgagor.
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26. Mortgagor shall comply with (and shall cause all tenants of the
Mortgaged Premises to comply with) all laws, ordinances, rules, regulations,
orders and other legal requirements relating to Mortgagor, the Mortgaged
Premises, or the use, occupancy, maintenance, improvement or repair of the
Mortgaged Premises on an ongoing basis. Mortgagor shall continuously maintain
in full force and effect all licenses, permits, franchises, contracts, zoning
approvals, and other approvals necessary or, in the reasonable opinion of
Mortgagee, desirable to be given by any governmental agency, subdivision,
authority, or utility company relating to or required for the use, occupancy,
maintenance, and continued operation of the Mortgaged Premises as a retail
shopping center, and as the Mortgaged Premises presently is being used,
occupied, maintained, and operated by Mortgagor and all tenants, licensees and
other occupants thereof or as contemplated to be used, occupied, maintained
and/or operated. Mortgagor covenants and agrees that at all times prior to
the satisfaction of this Mortgage there shall be located on the Mortgaged
Premises not less than the greater of: (a) that in such the number of on-site
automobile parking spaces that is required by all applicable zoning and other
laws; or (b) the number of total parking spaces that is required under the
terms of the Key Leases.
27. To the extent that any of the property encumbered by this Mortgage
from time to time constitutes personal property subject to the provisions of the
Florida Uniform Commercial Code, this Mortgage constitutes a "Security
Agreement" for all purposes under such Code.
28. Mortgagor shall pay: (i) all taxes and fees (except for state and
federal income taxes on the indebtedness secured hereby) (including interest
and penalties thereon) that are or may be levied by the United States of
America, or any state or political subdivision thereof, upon Mortgagee in
connection with, or upon, the Note or the indebtedness evidenced thereby, this
Mortgage, or the Other Loan Documents, or the payment or collection of any of
the foregoing, including, without limitation, all Florida documentary stamp
taxes and intangible taxes; and (ii) all franchise, excise, sales, and other
taxes, fees, and charges assessed, levied, or imposed with respect to
Mortgagor's right to do business on or from the Mortgaged Premises or the
rents received by Mortgagor from the Mortgaged Premises. This paragraph shall
survive the satisfaction, release, or discharge of this Mortgage.
29. a. Mortgagor (jointly and severally, if more than one) covenants,
represents, and warrants to Mortgagee, its successors and assigns: (i) that it
has not used or permitted, and will not use or permit all or any part of the
Mortgaged Premises to be used, whether directly or through contractors, agents,
or tenants, and no portion of the Mortgaged Premises has at any time been used,
for the generation, transportation, treatment, storage, manufacture, emission,
or disposal of any dangerous, toxic, or hazardous pollutant, chemical, waste, or
substance (a "Hazardous Substance") (including without limitation, petroleum,
petroleum products, asbestos in any form, urea formaldehyde, polychlorinated
biphenyls, and atmospheric radon at levels over four (4) picocuries per cubic
liter), (A) as defined in or regulated by the Federal Comprehensive
Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"),
the Federal Resource Conservation and Recovery Act of 1976 ("FRCRA"), or
Florida's 1974 Resource Recovery and Management Act ("FRRMA"), all as from time
to time amended, or any other federal, state, or local environmental law,
statute, regulation, requirement or ordinance (collectively, the "Environmental
Laws"), or (B) which poses a hazard to the health and safety of the occupants of
the Mortgaged Premises or any adjacent property; (ii) that, to the best of
Mortgagor's knowledge following due inquiry as a duly diligent property owner,
except as specifically disclosed in that certain Phase I Environmental Site
Assessment dated October 12, 1995, prepared by Fugro Environmental, Inc. (the
"ESA"), the Mortgaged Premises has been and is free from contamination by any
Hazardous Substance (including, without limitation, petroleum or any petroleum
product, asbestos in any form, urea formaldehyde, polychlorinated biphenyls,
underground storage tanks, atmospheric radon at levels over four (4) picocuries
per cubic liter, or any other substance the exposure to which is prohibited,
limited, or regulated by any federal, state, country,
17
regional, or local authority or that poses a hazard to public health) (but
excluding (A) immaterial quantities of automotive motor oil leaked inadvertently
from vehicles in the ordinary course of the operation of the Mortgaged Premises
and cleaned up in accordance with reasonable property management procedures and
all applicable Environmental Laws, and (B) immaterial quantities of substances
customarily and prudently used in the cleaning and maintenance of the Mortgaged
Premises in accordance with all applicable Environmental Laws); (iii) that, to
the best of Mortgagor's knowledge following due inquiry as a duly diligent
property owner, except as specifically disclosed in the ESA, no release of any
Hazardous Substance (including, without limitation, petroleum or any petroleum
product) has occurred on or about the Mortgaged Premises; (iv) that the
Mortgaged Premises currently complies, and will comply based on its anticipated
use, with all Environmental Laws and other current legal requirements relating
to the environment, (v) that in connection with the ownership, operation, and
use of the Mortgaged Premises, all necessary notices have been filed and all
required permits, licenses, and other authorizations have been obtained, are
valid, and are currently in full force and effect including, without limitation,
those relating to the generation, treatment, storage, disposal, or use of any
Hazardous Substance (including, without limitation, any petroleum or petroleum
product); (vi) that there is no present or, to the best of Mortgagor's knowledge
following due inquiry as a duly diligent property owner, past or threatened
investigation, inquiry, or proceeding relating to the environmental condition
of, or events on or about, the Mortgaged Premises; (vii) that the Mortgaged
Premises is not listed in the United States Environmental Protection Agency's
National Priorities List of Hazardous Waste Sites, or by the State of Florida
Department of Environmental Protection, or by any county or city in which the
Mortgaged Premises are located as a hazardous waste storage facility, nor on any
other list, schedule, log, inventory, or record of Hazardous Substances or
hazardous waste sites, whether maintained by the United States Government or any
state or local agency; (viii) that there is no underground storage tank on the
Mortgaged Premises, (ix) that the Mortgagor, the Mortgaged Premises and all
tenants therein, currently comply with, and will continue to comply with all of
the provisions and requirements of Chapter 376, Florida Statutes (1994), as
amended and modified from time to time, and (x) Mortgagor is not aware of any
environmental condition, situation, or incident on, at, or concerning all or any
portion of the Mortgaged Premises that could give rise to a successful action or
to a liability under any federal, state or local law, regulation, ordinance, or
common law theory.
b. Mortgagor covenants and agrees to comply with (and to cause all
tenants of the Mortgaged Premises to comply with) all legal requirements
applicable to Mortgagor, the Mortgaged Premises, or the use, occupancy,
maintenance or operation of the Mortgaged Premises, including, without
limitation, all Environmental Laws and other legal requirements relating to the
environment.
c. Mortgagor (jointly and severally, if more than one) hereby
agrees to defend, indemnify and hold Mortgagee, its parent corporation and
affiliates, and their respective successors, assigns, directors, officers,
shareholders, partners, employees, and agents, harmless from and against any
and all losses, liabilities (including strict liability), damages, fines,
penalties, injuries, expenses (including attorneys' fees and costs), costs,
actions, causes of action, judgments, and claims of any and every kind
whatsoever paid, incurred, or suffered by, or asserted against, any one or
more of them by any person or entity or government or agency for, with respect
to, or as a direct or indirectly result of, the breach or untruth of any of
the covenants, representations, or warranties contained in this Mortgage or
any of the Other Loan Documents that in any manner relate to environmental
matters (including, without limitation, all of the covenants, representations,
and warranties contained in this Paragraph 29), or the presence on, about, or
under, or the escape, leakage, spillage, discharge, emission, or release from,
the Mortgaged Premises of any Hazardous Substance or petroleum product
(provided, however, the foregoing indemnification shall not extend to any such
presence, escape, seepage, leakage, spillage, discharge, emission, or release
that arises or occurs solely and in its entirety after a transfer of both
title and possession of the Mortgage Premises to Mortgagee, its successors or
assigns, and that is not caused, in whole or in part, directly or indirectly,
by
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any act or omission of Mortgagor or any of its partners, agents, or employees),
including, without limitation, any and all losses, liabilities (including strict
liability), damages, fines, penalties, injuries, expenses (including reasonable
attorneys' and legal assistants' fees and costs), costs, and claims asserted or
arising under CERCLA, XXXX, FRCRA, FRRMA, Chapter 376, Florida Statutes (1994),
or any other Environmental Laws, regardless of whether within the control of
Mortgagor. Notwithstanding anything to the contrary contained in this
Subparagraph c., as to Miami Gardens Associates only (but expressly excluding
its successors in title), the foregoing indemnification shall not apply to any
such presence, escape, seepage, leakage, spillage, discharge, emission, or
release that occurs solely and in its entirety after a transfer of both title
and possession of the Mortgaged Premises to a buyer that is approved by
Mortgagee pursuant to Article IV, Subparagraph 8.d., of this Mortgage and that
is not caused, in whole or in part, directly or indirectly, by any act or
omission of Miami Gardens Associates or any of its partners, agents, or
employees.
d. At the request of Mortgagee, Mortgagor will cooperate with
Mortgagee in securing any records, filings, or other matters requested by
Mortgagee, and in Mortgagee's sole and absolute discretion, necessary or
desirable to make a determination on the existence of any Hazardous Substances
on the Mortgaged Premises, which, at the present, would be a violation or
potential violation of any law, rule or regulation of any federal, state,
regional or local authority.
e. If Mortgagor receives any notice of (i) the happening of any
material event involving the spill, release, leak, seepage, discharge, or
clean-up of any Hazardous Substance on all or any part of the Mortgaged
Premises or in connection with Mortgagor's operations thereon, or (ii) any
complaint, order, citation or material notice with regard to air emissions,
water discharges, or any other environmental, health, or safety matter
affecting Mortgagor or any part of the Mortgaged Premises (an "Environmental
Complaint") from any person or entity or governmental agency (including
without limitation the Environmental Protection Agency (the "EPA")), then
Mortgagor shall immediately notify Mortgagee orally and in writing of said
notice.
f. Mortgagee shall have the right, but not the obligation, and
without limitation of Mortgagee's rights under this Mortgage and the
Environmental Agreement, upon reasonable notice to Mortgagor (except in the
event of an emergency or an action that requires immediate attention, in which
event no notice shall be required) to enter onto the Mortgaged Premises or to
take such other actions as it deems necessary or advisable to clean up, remove,
resolve, or minimize the impact of, or otherwise deal with, any such Hazardous
Substance or Environmental Complaint following receipt of any notice from any
person or entity (including, without limitation, the EPA) asserting the
existence of any Hazardous Substance or an Environmental Complaint pertaining to
the Mortgaged Premises or any part thereof which, if true, could result in an
order, suit or other action against Mortgagor or any portion of the Mortgaged
Premises and/or which, in the sole opinion of Mortgagee, could jeopardize its
security under this Mortgage. All costs and expenses incurred by Mortgagee in
the exercise of any such rights shall be secured by this Mortgage and the Other
Loan Documents, shall be of equal priority with the lien thereof, and shall be
payable by Mortgagor to Mortgagee upon demand, together with interest thereon at
the "Default Rate" specified in the Note.
g. Mortgagee shall have the right to obtain, at Mortgagor's expense,
environmental audits and, if deemed necessary by Mortgagee, environmental risk
assessments, of the Mortgaged Premises, hazardous waste management practices,
and/or hazardous waste disposal sites used by Mortgagor at such times during the
term of the loan secured hereby as Mortgagee reasonably deems necessary in order
to limit its liability or protect its lien and security interest in the
Mortgaged Premises; provided, however, Mortgagee agrees not to request such an
audit more than once a year unless Mortgagee has reason to believe that an audit
may disclose the presence or release of a Hazardous Substance (including,
without limitation, petroleum or any petroleum product), or unless an
environmental audit deems further testing or audits necessary. Each such audit
and/or
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risk assessment must be by an environmental consultant selected by Mortgagee.
All costs and expenses incurred by Mortgagee in the exercise of such rights
shall be secured by this Mortgage and the Other Loan Documents, shall be of
equal priority with the lien and security interest thereof, shall be payable by
Mortgagor to Mortgagee upon demand or charged to Mortgagor's loan balance at the
discretion of Mortgagee, and shall bear interest at the "Default Rate" specified
in the Note.
h. Any breach of any warranty, representation, or agreement
contained in this Paragraph 29 shall be an Event of Default hereunder and shall
entitle Mortgagee to exercise any and all remedies provided in this Mortgage,
the Note, or the Other Loan Documents, or otherwise permitted by applicable law.
i. The provisions of this Paragraph 29 are cumulative to the
provisions of the Environmental Agreement.
j. All of the representations, warranties, and indemnities set forth
in this Paragraph 29 shall survive the payment of the indebtedness secured
hereby and the satisfaction, release, or termination of this Mortgage with
respect to all or any portion of the Mortgaged Premises.
30. Mortgagor shall promptly pay, perform, and observe all of the
obligations to be paid, performed or observed on the part of the owner of all
or any portion of the Mortgaged Premises under any one or more of the Easement
Agreements or the Utility Agreement; shall promptly and with due diligence
enforce and cause to be complied with the Outparcel Restrictions; shall not
modify or amend (or consent to, acquiesce in, or permit any modification or
amendment of) any of the Easement Agreements, any of the Outparcel
Restrictions, or the Utility Agreement without the prior written consent of
Mortgagee, which consent may be withheld or denied in Mortgagee's sole and
absolute discretion; shall not consent to, acquiesce in, or permit the
termination or rescission of any of the Easement Agreements, any of the
Outparcel Restrictions, or the Utility Agreement; shall not permit any lien to
attach to any part of the Mortgaged Premises under any of the Easement
Agreements; shall furnish Mortgagee with copies of all notices alleging any
default on the part of Mortgagor under any of the Easement Agreements any of
the Outparcel Restrictions, or the Utility Agreement promptly following
Mortgagor's receipt thereof; shall not withdraw the Mortgaged Premises from
any of the Easement Agreements without Mortgagee's prior written consent,
which consent may be withheld or denied in Mortgagee's sole and absolute
discretion; and shall not consent to any change in use under any of the
Outparcel Restrictions or consent to the commencement of any improvements,
development, or construction on any property subject to the Outparcel
Restrictions without Mortgagee's prior written consent, which consent may be
withheld or denied in Mortgagee's sole and absolute discretion.
31. Mortgagor shall promptly pay, observe, and perform all of its
obligations under any of the restrictive covenants and conditions applicable to
all or any part of the Mortgaged Premises.
32.a. Notwithstanding the provisions of Article II, Subparagraph 7.f. or
Paragraph 12, of this Mortgage, in the event that any Insurance Proceeds
(excluding proceeds of business interruption insurance or business income
coverage) or Condemnation Proceeds become payable as a result of any damage or
destruction to any of the Improvements due to casualty or condemnation, if
requested by Mortgagor Mortgagee agrees to make such Proceeds (less all of
Mortgagee's expenses deducted pursuant to Article II, Subparagraph 12.b.,
hereof) available for the restoration or repair of the damage to the Mortgaged
Premises following a casualty, or to remedy the effects of a condemnation,
provided that all of the following conditions are fully satisfied (i) no Event
of Default under the Note, this Mortgage, or any of the Other Loan Documents, is
then in existence; (ii) no default in the payment of any sum due under the Note,
this Mortgage, or any of the Other Loan Documents has occurred during the
immediately preceding twelve (12) month period; (iii) no nonmonetary default
occurred under the Note,
20
this Mortgage or any of the Other Loan Documents that was noticed and remained
uncured beyond any applicable cure period during the immediately preceding
twelve (12) month period; and (iv) the Proceeds received by Mortgagee, together
with any additional funds deposited with Mortgagee by Mortgagor, are sufficient,
in Mortgagee's sole discretion, to restore the Mortgaged Premises to the
condition it was in immediately preceding the casualty or to remedy the
condemnation. In addition to the foregoing conditions, if the Proceeds equal or
exceed $250,000.00, Mortgagee shall not be obligated to make any of the Proceeds
available for such restoration or repairs unless either (i) the ratio of the
then existing unpaid principal balance of the Note to the fair market value of
the Mortgaged Premises upon the completion of such restoration and repairs (as
determined by an appraisal to be obtained by Mortgagee, at Mortgagor's sole cost
and expense, in accordance with all of the same procedures as are set forth in
Section 4.2.1 of the Commitment (as such term is hereinafter defined) will be
seventy-five percent (75%) or less, or (ii) Mortgagor makes a prepayment on the
Note (it being understood and agreed that in such event no Prepayment Charge
shall be due under the Note on the amount required to be paid under this Item
(ii) so that the ratio of the then existing unpaid principal balance of the Note
to the fair market value of the Mortgaged Premises upon the completion of such
restoration and repairs (as determined by an appraisal to be obtained by
Mortgagee, at Mortgagor's sole cost and expense, in accordance with all of the
same procedures as are set forth in Section 4.2.1. of the Commitment, as such
terms is hereinafter defined) will be seventy-five percent (75%) or less.
Mortgagee, in its sole discretion, either may require that Mortgagor deposit
$10,000.00 with Mortgagee as security for the cost of the appraisal described in
the foregoing sentence or Mortgagee may pay the fee appraiser from the Proceeds.
Provided that all of the foregoing conditions have been fully met, the Proceeds
shall be made available for the restoration and repair of the damaged portion of
the Improvements upon the following terms and conditions.
i. Any Proceeds that are to be made available by Mortgagee for
restoration or repairs shall be held in a restoration fund (the "Restoration
Fund"), either by Mortgagee, or, if it refuses to serve, by a bank or trust
company appointed by Mortgagee, as restoration fund trustee (the "Restoration
Fund Trustee"), with any additions thereto that may be required by Mortgagee as
hereinafter provided. The interest or income, if any, received on all deposits
or investments of any monies in the Restoration Fund shall be added to the
Restoration Fund. Mortgagee and the Restoration Fund Trustee may impose
reasonable charges for services performed in managing the Restoration Fund and
may deduct said charges therefrom.
ii. Prior to the commencement of restoration or repairs and from time
to time during such restoration or repairs, Mortgagee may require Mortgagor to
deposit additional monies (the "Additional Monies") into the Restoration Fund in
amounts that, in Mortgagee's sole discretion, are sufficient to defray all costs
to be incurred to complete the restoration or repairs and all costs associated
therewith, including, without limitation, labor, materials, architectural and
design fees and expenses, and contractor's fees and expenses, and Mortgagee
shall have approved a budget and cost breakdown for the restoration, together
with a disbursement schedule, in detail reasonably satisfactory to Mortgagee.
Any additional monies deposited by Mortgagor into the Restoration Fund shall be
disbursed prior to the disbursement of any Proceeds deposited in the Restoration
Fund.
iii. Prior to the commencement of restoration or repairs, the
contracts, contractors, and plans and specifications for the restoration or
repairs shall have been approved by Mortgagee and all governmental authorities
having jurisdiction, and Mortgagee shall be provided with satisfactory title
insurance and acceptable surety bonds insuring satisfactory completion of
restoration and repairs and the payment of all subcontractors and materialmen.
iv. All restoration work shall be done under fixed price contracts,
fully bonded to Mortgagee's reasonable satisfaction.
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v. At the time of each disbursement, (i) no Event of Default under
this Mortgage shall then exist; (ii) lien waivers from all architects,
contractors, subcontractors, laborers and materialmen rendering services or
materials in connection with the restoration or repairs in an amount equal to
the disbursement shall have been delivered to Mortgagee and its title insurer;
(iii) no mechanics' or materialmen's liens shall have been filed and remain
undischarged; and (iv) an endorsement (in form satisfactory to Mortgagee) to
Mortgagee's title insurance policy on the Mortgaged Premises insuring the
continued first priority of the lien of this Mortgage shall have been delivered
to Mortgagee.
vi. Disbursements from the Restoration Fund shall be made from time
to time, but not more frequently than once each calendar month, for completed
work under the aforesaid contracts (subject to retainage as hereinafter
provided) and for other costs associated therewith and approved by Mortgagee,
upon receipt of evidence satisfactory to Mortgagee of the stage of completion
and of performance of the work in a good and workmanlike manner in accordance
with the contracts, plans, and specifications as approved by Mortgagee (which
evidence may include, without limitation, certificates of an independent
architect acceptable to Mortgagee).
vii. The cost of Mortgagee's inspecting architect or engineer and the
cost of any attorneys' fees and disbursements incurred by Mortgagee in
connection with such restoration or repairs shall be paid from the Restoration
Fund to the extent sufficient, and Mortgagor shall pay any such costs to the
extent the Restoration Fund is insufficient.
viii. There shall be delivered to Mortgagee at Mortgagor's cost
such other evidence as Mortgagee may reasonably request from time to time during
the restoration and repairs as to the progress of the work, compliance with the
approved plans and specifications, the cost of restoration and repairs, and the
total amount needed to complete the restoration and repairs.
ix. Ten percent (10%) of the cost of all work shall be retained in
the Restoration Fund until the restoration and repairs are fully completed, as
verified to Mortgagee's reasonable satisfaction, and all occupancy permits
therefor have been issued.
x. Mortgagee may impose such other reasonable conditions, including
a restoration schedule, as are customarily imposed by construction lenders to
assure complete and lien free restoration and repairs.
xi. Any sum remaining in the Restoration Fund upon completion of
restoration and repairs, at Mortgagee's sole and absolute option, shall either
be applied in reduction of the indebtedness hereby secured, in such order as
Mortgagee may elect, or returned to Mortgagor; provided, however, that if an
Event of Default then exists, Mortgagor shall not be entitled to receive any
reimbursement for Additional Monies advanced, and any sum remaining in the
Restoration Fund shall be applied to any part of the indebtedness secured by
this Mortgage in such order as Mortgagee desires.
If, pursuant to this Subparagraph 32.a., Mortgagor requests that
Proceeds be applied to restoration or repairs, but within a reasonable period of
time after the occurrence of any loss or damage by casualty or condemnation to
the Improvements. Mortgagor shall not have submitted to Mortgagee and received
Mortgagee's approval of plans and specifications for the repair or restoration
of such loss or damage or shall not have obtained approval of such plans and
specifications from all governmental authorities whose approval is required, or
if, after such plans and specifications are approved by Mortgagee and by all
such governmental authorities, Mortgagor shall fail to commence promptly such
repairs or restoration, or if thereafter Mortgagor fails to carry out diligently
such repairs or restoration or is delinquent in the payment to contractors,
laborers, materialmen, or if any other condition of this Subparagraph 32.a. is
not satisfied within a reasonable period of time after the occurrence of any
such loss or damage, then Mortgagee, in addition to all other rights herein set
forth, and after giving Mortgagor thirty
22
(30) days' written notice of the nonfulfillment of one or more of the foregoing
conditions may, failing Mortgagor's fulfillment of said conditions within said
thirty (30) day period, at Mortgagee's option, (A) apply the full amount of the
Proceeds and any interest earned thereon to the payment of the indebtedness
secured by this Mortgage in such order as Mortgagee may elect, or (B) Mortgagee,
or any lawfully appointed receiver of the Mortgaged Premises, may, at its
option, perform or cause to be performed such repairs or restoration and may
take such other steps as the Mortgagee deems advisable to carry out such repairs
or restoration, and may enter upon the Mortgaged Premises for any of the
foregoing purposes, and Mortgagee may, in its discretion, apply any sums in the
Restoration Fund to reimburse itself and/or such receiver for all amounts
expended or incurred in connection with the performance of such work, including
attorneys' fees, and any excess costs shall be paid by Mortgagor to Mortgagee.
Mortgagor's obligation to pay such excess costs shall be secured by the lien and
security interest of this Mortgage and shall bear interest at the Default Rate
of interest provided in the Note until paid.
b. Notwithstanding the provisions of Article II, Subparagraph 7.f.,
of this Mortgage, in the event that any Insurance Proceeds, (excluding
proceeds of business interruption insurance) become payable as a result of any
damage or destruction to any of the Improvements due to casualty and Mortgage
is not entitled to have such Insurance Proceeds made available for restoration
or repair of the Improvements upon the terms and conditions set forth in
Subparagraph 32.a. immediately preceding, but any of the Key Leases requires
the Mortgage apply all or a portion of such Insurance Proceeds to the
restoration or repair of the Improvements, then the following provisions of
this Subparagraph 32.b. shall apply. Provided that no Event of Default is
then in existence, that Mortgagor does not cancel or terminate such Key Lease
as a result of the casualty (which Mortgagor shall not be entitled to do
without the express prior consent of Mortgagee, which consent may be withheld
or denied in Mortgagee's sole and absolute discretion), and that the Key
Tenant under such Key Lease (i) does not cancel or terminate such Key Lease as
a result of the casualty, (ii) is not then in default under such Key Lease,
and (iii) is obligated to continue to pay the full minimum guaranteed, or
fixed rent, percentage rent, additional rent, tax, insurance, and common area
maintenance charges, and all other charges and sums due under such Key Lease
following other charges and sums due under such Key Lease following the
completion of such restoration and repairs without any diminution or set off,
then as and to the extent (but only as and to the extent) required by the
terms of such Key Lease, such Insurance Proceeds (less all of Mortgagee's
expenses deducted pursuant to Article II, Subparagraph 12.b. hereof) shall be
made available for the restoration and repair of the Improvements. In such
event to the extent not inconsistent (or, if inconsistent, to the extent not
unacceptable to the Key Tenant under such Key Lease) the provisions of items
(i) through (xi), inclusive, of Subparagraph 32.a. immediately preceding shall
apply.
33. Mortgagor shall not submit all or any portion of the Mortgaged
Premises to a condominium form of ownership or plat all or any portion of the
Mortgaged Premises without the prior written consent of Mortgagee, which consent
may be withheld or denied in Mortgagee's sole and absolute discretion.
ARTICLE III
1. Upon the occurrence of an Event of Default under this Mortgage,
Mortgagee, at Mortgagee's sole option, may declare all the sums secured by this
Mortgage (including any applicable prepayment charge or liquidated damages due
under the Note) to be immediately due and payable without demand and may
foreclose this Mortgage and/or any or all of the Other Loan Documents by
judicial proceedings and/or pursue any other available remedy or remedies.
Mortgagee shall be entitled to collect in such proceedings all expenses of
foreclosure, including, but not limited to, reasonable attorneys' and legal
assistants' fees and costs before trial, at trial, and on appeal, court costs,
and costs of documentary evidence, abstracts, and title reports.
23
2. In the event there shall be filed a complaint to foreclose this
Mortgage, the plaintiff shall immediately and without notice be entitled to the
appointment of a receiver for the Mortgaged Premises and the rents, earnings,
issues, incomes, and profits thereof, with the usual power of receivers in such
cases, and such receiver may be continued in possession of the Mortgaged
Premises and of said rents, earnings, issues, incomes, and profits of the
Mortgaged Premises during the pendency of such foreclosure suit, and the
Mortgagor hereby specifically waives the right to object to such appointment and
consents that such appointment shall be made as an admitted equity and as a
matter of absolute right to the Mortgagee, and without reference to the adequacy
of the value of the Mortgaged Premises or to the solvency or insolvency of the
Mortgagor or any other party defendant to such suit. The receiver may take all
actions necessary or advisable to manage, preserve, protect, complete
construction of, lease, and/or operate the Mortgaged Premises, or any
combination; to collect all rents, issues, incomes, and profits granted to
Mortgagee under this Mortgage or any of the Other Loan Documents; to make all
necessary and needed repairs; to pay all taxes, assessments, insurance premiums,
and all other costs incurred in connection with the Mortgaged Premises; and,
after payment of the expenses of the receivership, including reasonable
attorneys' and legal assistants' fees and costs, and after compensation to the
receiver for management and completion of the Mortgaged Premises, to apply all
net proceeds derived therefrom in reduction of the indebtedness secured hereby
or in such other manner as the Court shall direct. All expenses, fees, and
compensation incurred pursuant to any such receivership shall be secured by the
lien of this Mortgage, shall be of equal priority with the lien hereof, and
shall bear interest at the "Default Rate" specified in the Note until paid. The
receiver, personally or through agents, may exclude Mortgagor wholly from the
Mortgaged Premises and have, hold, use, operate, lease, manage, and control the
Mortgaged Premises, and may in the name of Mortgagor exercise all of Mortgagor's
rights and powers to maintain, construct, operate, lease, restore, repair,
insure, and keep insured the Mortgaged Premises in such manner as such receiver
deems appropriate.
3. If foreclosure proceedings of any second mortgage or any junior lien
of any kind should be instituted and such proceedings are not fully dismissed
within the applicable grace period provided by Article III, Subparagraph 4.b.,
hereof, the Mortgagee, its successors or assigns, may at its option, immediately
or thereafter declare this Mortgage and the indebtedness secured hereby due and
payable.
4. The occurrence of any one or more of the following events shall
constitute an "Event of Default" under this Mortgage.
a. Mortgagor fails to make any payment as required by the Note
secured hereby or by this Mortgage, or by any of the Other Loan Documents, and
such failure continues for a period exceeding ten (10) days after the due date
thereof, without notice.
b. Mortgagor fails to perform any term, covenant, or condition
contained in this Mortgage (other than Article IV, Paragraph 2, and the defaults
referenced in Article III, Paragraph 3, and Subparagraphs 4.c. through 4.l.
hereof) or in the Note, or in any of the Other Loan Documents, when due, other
than any term, covenant or condition requiring the payment of money or that is
incapable of being cured, and such failure continues for a period exceeding
thirty (30) days after Mortgagee gives Mortgagor written notice of such failure
(however, if no other Event of Default is then continuing and if such
nonmonetary default cannot reasonably be cured within such thirty (30) day
period and Mortgagor has taken all reasonable action to commence the cure
thereof within such thirty (30) day period, the period for curing such default
shall be extended for such additional time, not to exceed an additional thirty
(30) days, as may reasonably be required for so long as Mortgagor continues to
pursue such cure in good faith and in a diligent manner). Notwithstanding the
foregoing sentence, any breach occurring under Article IV, Paragraph 2, or under
Article III, Paragraph 3, or any of Subparagraphs 4.c. through 4.l. hereof,
shall constitute an immediate Event of Default hereunder without notice or
opportunity to cure.
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c. Mortgagor shall abandon the Mortgaged Premises or any part
thereof.
d. Mortgagor, any of the General Partners, or any of their
respective general partners, or any guarantor or indemnitor (including, without
limitation, the Carveout Indemnitors, as such term is hereinafter defined) of
any indebtedness or obligations evidenced or secured by this Mortgage (any one
of Mortgagor, Mortgagor's General Partners, any of their respective general
partners, or any such guarantor or indemnitor being hereinafter individually
referred to as a "Borrower Entity" and collectively referred to as the "Borrower
Entities") files any petition in bankruptcy, or for an arrangement,
reorganization, or any other form of debtor relief under any present or future
law relating to bankruptcy or debtor relief; or such a petition is filed against
a Borrower Entity, and either that filing is not opposed or the petition is not
dismissed within sixty (60) days after filing; or any Borrower Entity is
adjudicated as a bankrupt or insolvent; or there is appointed a receiver or
trustee to take possession of all or a substantial portion of the assets of any
Borrower Entity or all or any portion of the Mortgaged Premises; or there is a
general assignment by any Borrower Entity for the benefit of creditors; or
should the Security, or any part thereof, be taken or seized under levy of
execution or attachment; or should any judgment be entered against any Borrower
Entity that may adversely affect the value, use, or operation of all or any part
of the Security; or should any federal, state, or local tax lien, any
construction or mechanics' lien, or any other lien or encumbrance be filed
against any Borrower Entity or any guarantor or any part of the Security;
provided, that Mortgagor shall not be in default under this Paragraph in the
case of any action taken by a party adverse to a Borrower Entity and not
consented to by such Borrower Entity unless the same shall continue in effect
for a period of sixty (60) days.
e. Any representation or disclosure made to the Mortgagee by any
Borrower entity, or any partner, agent, attorney, employee, or contractor of any
of them proves to be materially false or misleading on the date as of which
made, whether or not that representation or disclosure appears in this Mortgage.
f. Any of the Borrower Entities should be dissolved, liquidated, or
terminated, whether voluntarily or involuntarily.
g. There is passed any law which renders payment by Mortgagor of any
and all taxes levied on this Mortgage or the Mortgaged Premises or performance
of any material term, covenant, or condition hereof, or any material obligation
secured hereby, unlawful, usurious, inoperative, void, or voidable, or which
prohibits Mortgagee from exercising any of its rights hereunder or under any
other instrument or agreement to which the Mortgagor is a party or by which it
is bound.
h. Any sale, transfer, conveyance, lease, assignment, mortgage,
pledge, hypothecation, encumbrance, or other vesting, whether voluntary or
involuntary, of any direct or indirect interest in, or any attempt or agreement
to sell, transfer, convey, lease, assign, mortgage, pledge, hypothecate,
encumber, or otherwise vest any direct or indirect interest in, the whole or any
portion of the right, title, or interest of Mortgagor in and to the Mortgaged
Premises, without the prior written consent of Mortgagee (which consent may be
withheld or denied in the sole and absolute discretion of Mortgagee), in
violation of Paragraph 8 of Article IV hereof, or any other breach thereof.
i. A default or failure to perform occurs under that certain
"Indemnification Agreement" of even effective date herewith made by Xxxx X.
Xxxxxxx ("Xxxxxxx"), Xxxxxxx Xxxxx ("Xxxxx"), Xxxxxxx X. XxXxxx ("XxXxxx"),
Garden Square, GSG Partners, and BMC Garden (Malhame, Hakim, McNutt, Garden
Square, GSG Partners, and BMC Garden are collectively referred to as "Carveout
Indemnitors"), in favor of Mortgagee (the "Carveout Indemnification").
j. Any other event occurs under the Note, any of the Other Loan
Documents, or any other agreement of the Mortgagor or any one or more of the
Borrower Entities relating to the loan evidenced by the Note, which constitutes
a default or an Event
25
of Default by the Mortgagor or any of such Borrower Entities thereunder (as
defined therein) or under this Mortgage or gives the Mortgagee the right to
accelerate the maturity of any part of the indebtedness secured by this
Mortgage.
k. The filing for record by Mortgagor of a notice pursuant to
Section 697, 04(1)(b), Florida Statutes (1993), or any successor thereto,
limiting the maximum principal amount secured by this Mortgage to an amount less
than the amount specified in Article II, Paragraph 24, of this Mortgage.
l. The failure of Mortgagor to pay or perform any of its obligations
under the Environmental Agreement when due beyond any applicable grace period
provided therein.
5. In the event that the Mortgaged Premises covered hereby is sold under
foreclosure and the proceeds are insufficient to pay the total indebtedness
secured hereby (including any applicable prepayment charge or liquidated
damages), the Mortgagor binds itself to pay the unpaid balance, and the
Mortgagee shall be entitled to a deficiency judgment, except to the extent
otherwise specifically provided in Article IV, Paragraph 15, hereof.
6. Neither this Mortgage, the existence or terms of any other security
for the performance of the obligations secured hereby, nor the existence or
terms of any other instrument or agreement shall be deemed to require any
marshalling of assets or otherwise permit Mortgagor to designate the order in
which any security shall be sold.
7. Every right, power, privilege, and remedy granted Mortgagee by this
Mortgage, or the Other Loan Documents, or otherwise available at law or in
equity, may be exercised by Mortgagee from time to time as often as Mortgagee
deems expedient until the indebtedness secured hereby is paid in full.
Mortgagee's failure to insist at any time upon the strict observance or
performance by Mortgagor of any of the provisions of this Mortgage, or to
exercise any right or remedy provided for in this Mortgage, will not impair any
such right or remedy, nor be construed as a waiver or relinquishment thereof for
the future, unless agreed otherwise by Mortgagee in writing. Receipt by
Mortgagee of any payment required to be made pursuant to this Mortgage, or the
Other Loan Documents, or both, with knowledge of the breach of any provision of
this Mortgage, or of the Other Loan Documents, or both, will not constitute a
waiver of such breach, unless agreed otherwise by Mortgagee in writing. In
addition to all other remedies provided in this Mortgage, Mortgagee will be
entitled, to the extent permitted by applicable law, to injunctive relief in the
case of a violation, or attempted or threatened violation, of any of the
provisions of this Mortgage, or the Other Loan Documents, or both, or to a
decree coercing performance of any of the provisions of any of the foregoing.
ARTICLE IV
1. Notwithstanding any provision of the Note, this Mortgage, or any of
the Other Loan Documents, or any combination thereof, to the contrary, the
parties intend that no provision of the Note, this Mortgage, or the Other Loan
Documents be interpreted, construed, applied, or enforced so as to permit or
require the payment or collection of interest in excess of the highest rate of
interest (the "Maximum Permitted Rate") permitted to be paid or collected by
applicable law with respect to this transaction. If, however, any such provision
is so interpreted, construed, applied, or enforced, then the parties intend (i)
that such provision automatically shall be deemed reformed NUNC PRO TUNC so as
to require payment only of interest at the Maximum Permitted Rate; and (ii) if
interest payments in excess of such Maximum Permitted Rate have been received,
then the amount of such excess shall be deemed credited NUNC PRO TUNC in
reduction of the then outstanding principal amount of the obligation evidenced
by the Note, together with interest at such Maximum Permitted Rate. In
connection with all calculations to determine
26
the Maximum Permitted Rate, the parties intend: first, that all charges be
excluded to the extent they are properly excludable under applicable usury laws,
as they from time to time are determined to apply to this obligation; and
second, that all charges be "spread" that may be "spread" in the manner, if any,
provided by applicable law.
2. In the event of the passage after the date of this instrument of any
law which deducts any lien on the Mortgaged Premises from the value of the
Mortgaged Premises for the purpose of taxation of mortgages or debts secured
thereby for state and local purposes, or which law changes the manner of
collection of any such taxes so as to affect the interest of the holder of the
Note then, unless the Mortgagor agrees to pay same pursuant to an enforceable
written agreement that is satisfactory to Mortgagee within thirty (30) days
after delivery of written notice thereof by Mortgagee to Mortgagor, the whole
sum secured by this Mortgage with interest thereon, at the option of the holder
of the Note, shall immediately become due, payable, and collectible without
notice to any party.
3. If the lien of this Mortgage is invalid or unenforceable as to any
part of the debt or if the lien is invalid or unenforceable as to any of the
Mortgaged Premises, the unsecured or partially secured portion of the debt shall
be completely paid prior to the payment of the remaining and secured or
partially secured portion of the debt and all payments made on the debt, whether
voluntary or under foreclosure or other enforcement action or procedure, shall
be considered to have been first paid on and applied to the full payment of that
portion of the debt which is not secured or fully secured by the lien of this
Mortgage.
4. Any part of the security herein described may be released by the
holder of the Note herein secured, without affecting the lien hereof on the
remainder. The security hereof shall not affect or be affected by any other
security taken for the same indebtedness or any part thereof. Taking of
additional security, or the extension or renewal of said indebtedness or any
part thereof, shall at no time release or impair the security thereof or affect
the liability of any endorser or surety, or improve the right of any junior
lienholder; and this instrument, as well as any instrument given to secure any
renewal or extension hereof, shall be and remain a first and prior lien on all
of said property not expressly released, until said indebtedness is paid in
full. Mortgagee from time to time, without notice to any person and without
affecting the liability of Mortgagor or of any other person (other than any
person expressly released by Mortgagee in writing) for the payment of any of the
indebtedness and without affecting the priority or extent of the lien and
security interest of this Mortgage (except as to property specifically released
by the Mortgagee in writing), may do any or all of the following: (i) release in
whole or in part, any person liable for payment of any or all of the
indebtedness; or (ii) extend the time or otherwise alter the terms of payment of
the indebtedness, in whole or in part; or (iii) consent to the creation of any
easement in, on, or over the Mortgaged Premises or any covenant restricting the
use of occupancy of the Mortgaged Premises.
5. The Mortgagee shall be subrogated to the lien of any and all prior
encumbrances, liens, or charges paid or discharged from the proceeds of the
Note, and even though said prior liens may have been released of record, the
repayment of the Note shall be secured by such liens on the portion of the
Mortgaged Premises affected thereby to the extent of such payments.
6. In this Mortgage, whenever the context so requires, the masculine
gender includes the feminine/neuter, and the singular number includes the
plural, and the term "Mortgagee" shall include any future holder, including
pledgees, heirs, executors, administrators, successors, and assigns of the Note
secured hereby. The terms of this Mortgage shall bind and inure to the benefit
of Mortgagor and Mortgagee, their heirs, personal representatives, successors
and assigns.
7. If any term, provision, covenant, or condition of the Mortgage, or any
application thereof should be held by a court of competent jurisdiction to be
invalid, void, or unenforceable, all provisions, covenants, and conditions of
this Mortgage and all
27
applications thereof not held invalid, or unenforceable, shall continue in full
force and effect and shall in no way be affected, impaired, or invalidated
thereby.
8. a. The loan secured hereby is granted to the Mortgagor specifically
based upon Mortgagor's loan application. The sale, transfer, conveyance, lease,
assignment, mortgage, pledge, hypothecation, encumbrance, or other vesting of
any direct or indirect interest in, whether voluntary or involuntary, or any
attempt or agreement to sell, transfer, convey, lease, assign, mortgage, pledge,
hypothecate, encumber, or otherwise vest any direct or indirect interest in, the
whole or any portion of the right, title, or interest of Mortgagor in and to the
Mortgaged Premises, without the prior written consent of Mortgagee (which
consent may be withheld or denied in the sole and absolute discretion of
Mortgagee), shall constitute an immediate Event of Default hereunder, whereupon
Mortgagee shall have the right, at its option, to declare the indebtedness and
all obligations secured hereby (including any applicable prepayment charge or
liquidated damages due in connection therewith) immediately due and payable in
full irrespective of the maturity date specified in the Note. If any person
should obtain a direct or indirect interest in all or any part of the Mortgaged
Premises pursuant to the execution or enforcement of any lien, security
interests, or other right, whether superior, equal, or subordinate to this
Mortgage or the lien hereof, such event (subject, however, to Mortgagor's right
to satisfy, bond, or otherwise discharge within the applicable grace period
provided by Article III, Subparagraph 4.b., hereof any lien that is filed
against the Mortgaged Premises without the consent of Mortgagor) shall be deemed
to be a prohibited transfer and an immediate Event of Default hereunder.
b. The sale, transfer, conveyance, assignment, or any other vesting
or disposition of any direct or indirect interest in Mortgagor, the encumbrance,
pledge, or hypothecation of any such interest, or any change in the direct or
indirect control of Mortgagor shall constitute a conveyance requiring
Mortgagee's prior written consent under the provisions of Subparagraph 8.a.
above.
c. The granting of permission for a transferee to assume this
Mortgage shall not in any manner be deemed a consent to any subsequent transfer,
and Mortgagee shall retain the right to withhold consent to such transfer or
subsequent transfers on the terms and conditions stated in Subparagraph 8.a.
above.
d. Notwithstanding the provisions of Article IV, Subparagraph 8.a.
hereof, Mortgagee agrees that upon Mortgagor's written request, Mortgagee will
consent to a one-time sale and conveyance of the Security by Miami Gardens
Associates to a proposed buyer (a "Buyer") provided that all of the following
conditions are first fully met: (i) Mortgagee shall have approved of the
Buyer's ownership structure, financial strength, creditworthiness, and
management capabilities, and Buyer shall have provided Mortgagee with all such
organizational documents, financial statements and other information as
Mortgagee may require for the purpose of making such determination; (ii) Buyer
and its principals shall have assumed in writing personal liability for all of
Mortgagor's obligations and liabilities under the Note, this Mortgage, and the
Other Loan Documents and the Carveout Indemnification, including, without
limitation, the Recourse Obligations described below, whether accruing before or
after the transfer (if requested by Mortgagee, Buyer and its principals shall
have executed a new Environmental Agreement and Carveout Indemnification); (iii)
mortgagee shall have approved the form and substance of all transfer and
assumption documents; (iv) Mortgagor shall have paid to Mortgagee a fee equal to
one percent (1%) of the then outstanding principal balance of the Note; (v)
Mortgagor and/or the Buyer shall have paid all costs and expenses in connection
with the conveyance and assumption, including, but not limited to, all
documentary stamp and intangible taxes, Mortgagee's attorneys' fees and costs,
and any title insurance premiums or costs; (vi) at the time of the conveyance
there shall exist no Event of Default under the Note, this Mortgage, or any of
the Other Loan Documents or any default under the Carveout Indemnification;
(vii) Mortgagor shall have acknowledged in writing that it will remain
personally liable (subject, however, to the provisions of Article IV,
Paragraph 15
28
hereof) under the Note, this Mortgage, and the Other Loan Documents, and
Carveout Indemnitors shall have acknowledged in writing that they will remain
personally liable in accordance with the terms of the Carveout Indemnification,
for all acts, omissions, events, and/or obligations arising, occurring, or
accruing in whole or in part, prior to the time of the conveyance or that are
caused in whole or in part, directly or indirectly, by any act omission of
any of them or any of their respective partners, affiliates, agents or
employees, and (viii) Mortgagor and/or the Buyer shall have obtained and paid
for an endorsement to Mortgagee's loan policy of title insurance updating the
policy through the recordation of the conveyance and assumption documents and
insuring that the lien of this Mortgage shall remain a first and prior lien on
all of the Mortgaged Premises. It is expressly understood and agreed, however,
that Mortgagee shall not be obligated to modify, or to entertain any request
from a Buyer for any modification of, this Mortgage or any of the Other Loan
Documents.
e. Notwithstanding anything to the contrary contained in
Article IV, Subparagraph 8.b. hereof, Mortgagee agrees that upon Mortgagor's
written request Mortgagee will consent to any transfer of a general partnership
interest in Miami Gardens Associates between Garden Square, GSG Partners, and
BMC Garden, provided that all of the following conditions are first fully met:
(i) no such transfer under this Subparagraph e. would result in the withdrawal
of BMC Garden as a general partner of Miami Gardens Associates; and (ii) XxXxxx
shall at all times remain the majority shareholder of BMC Garden.
f. Mortgagor shall pay all out-of-pocket costs and expenses incurred
by Mortgagee (including reasonable attorneys' fees and costs) in connection with
Mortgagee's review and/or approval of any of the transfers described in the
foregoing Subparagraphs 8.d. and 8.e.
9. In the event that the Mortgagor now or hereafter consists of more than
one (1) person, trust, firm, or corporation then, in such an event, all of such
persons, trusts, firms, or corporations shall be jointly and severally liable
hereunder.
10. The laws of the State of Florida shall govern the validity,
construction, performance, and effect of this Mortgage, without regard to any
choice of law principle requiring the application of the law of another
jurisdiction. The Mortgagor agrees that the sole and exclusive forum for the
determination of any action relating to the validity and enforceability of the
Note, this Mortgage, the Other Loan Documents, and any other instruments
securing the Note shall be either in an appropriate court of the State of
Florida or the applicable United States District Court.
11. The various rights, options, elections, and remedies of the Mortgagee
hereunder shall be cumulative and none of them shall be construed as exclusive
of any other, or of any right, option, election, or remedy provided in any
agreement or by law.
12. This Mortgage shall be construed in accordance with the terms hereof
without regard to any presumption or other rule requiring construction against
the party causing the same to be drafted.
13. Any notice, demand, request, or consent required or permitted under
this Mortgage shall be in writing, and delivered either by (1) hand-delivery,
(2) certified or registered mail, return receipt requested, or (3) overnight
express courier, and addressed as the case may be to the Mortgagee at:
Life Investors Insurance Company of America
c/o AEGON USA Realty Advisors, Inc.
0000 Xxxxxxxx Xxxx X.X.
Xxxxx Xxxxxx, Xxxx 00000
and to the Mortgagor at:
00
XXXXX XXXXXXX ASSOCIATES
c/o Xxxxxxx X. XxXxxx
Xxxxxx Realty Co.
0000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as either of them shall so designate in the manner
provided, and the same shall be deemed to have been delivered on the date when
hand-delivered, on the day that is three (3) business days after the date when
the same is mailed as aforesaid, or one (1) day after the same is deposited with
an overnight express courier as aforesaid, except that notice of change of
address shall be effective upon receipt of such notice.
14. All terms of the Revised Mortgage Loan Commitment of Aegon USA Realty
Advisors, Inc., dated September 20, 1995, as agent for Mortgagee (the
"Commitment"), are hereby incorporated by reference. In the event of any
conflict between the terms of the Commitment and this Mortgage and the Other
Loan Documents, the terms of this Mortgage and the Other Loan Documents shall
prevail. All of the terms and conditions of the Commitment shall survive the
execution of this Mortgage and the closing of the loan transaction and remain in
full force and effect until the Note is satisfied and all amounts due under this
Mortgage or any of the Other Loan Documents are paid in full. The Commitment
does not obligate the Mortgagee to make any additional or other loan to
Mortgagee, or to release the lien of this Mortgage as to any portion of the
Mortgaged Premises.
15. Notwithstanding any provision contained in this Mortgage to the
contrary, except for the Recourse Obligations, as hereinafter defined, Mortgagee
shall have no recourse to any property of Mortgagor other than the Security in
the event that Mortgagor fails to pay all or any portion of the indebtedness
evidenced by the Note or secured or imposed by this Mortgage or any of the Other
Loan Documents or fails to perform any of Mortgagor's obligations pursuant to
the Note, this Mortgage, or any of the Other Loan Documents (collectively, the
"Indebtedness"). Mortgagor (jointly and severally, if more than one) shall have
full personal liability for, and shall defend, indemnify, and hold Mortgagee
(including its successors and assigns) harmless from, any and all losses,
liabilities (including strict liability), damages, fines, penalties, injuries,
expenses (including reasonable attorneys' fees and costs, whether incurred prior
to or at trial or on appeal or in connection with any bankruptcy, creditors'
rights, or other proceedings or collecting upon or enforcing any judgment),
costs, and claims of any and every kind whatsoever (together with interest
thereon at the Default Rate specified in the Note until paid) paid, incurred, or
suffered by, or asserted against, Mortgagee (including its successors and
assigns), and caused by any of the following "Recourse Obligations":
a. Waste to any of the Security (but excluding ordinary wear and
tear, unless Mortgagor fails to exercise ordinary care in maintaining the
Security).
b. Fraud or written material misrepresentation by Mortgagor or any
of its partners, or any affiliate, partner, officer, director, shareholder,
agent, or employee of any of them.
c. The failure to pay any tax, assessment, ground rent, or lienable
imposition or charge (including any interest and penalties thereon) as required
under this Mortgage or any of the Other Loan Documents.
d. The application of any and all tenant security deposits or
prepaid rents or other charges (including any interest earned or due thereon)
under the leases of any portion of the Security (collectively, the "Deposits")
in a manner not specifically authorized by this Mortgage or the Other Loan
Documents, or the failure to remit the Deposits to the
30
holder of this Note as required by this Mortgage or any of the Other Loan
Documents or by applicable law.
e. The application in a manner not specifically authorized by this
Mortgage and the Other Loan Documents of any condemnation or insurance proceeds
from or with respect to the Security collected by or on behalf of Mortgagor, or
the unavailability to Mortgagee of condemnation proceeds because a lease of all
or any portion of the Security grants a tenant the right (or the tenant
otherwise is entitled) to receive a portion of the award for the estate taken
(excluding moving expenses, business damages, and damage for the loss of the
tenant's leasehold fixtures to the extent that the same are separately awarded
to the tenant).
f. The failure to pay to Mortgagee all Net Revenues (as
hereinafter defined) derived from the Security while there exists any uncured
Event of Default arising from Mortgagor's failure to pay any sum due under
the Note, this Mortgage, or any of the Other Loan Documents (a "Monetary
Default"). As utilized herein, the term "Gross Revenues" means all revenues,
receipts, proceeds, and income derived from the Security from any source
whatsoever, and received by or for the account of Mortgagor while an uncured
Monetary Default exists, including, but not limited to, all rent and other
charges from tenants or other occupants of the Security, revenue from the
operation of the Mortgagor's business or businesses upon the Security,
insurance proceeds for a loss of business revenue, receipts from a sale or
refinancing of the Security, and any other revenues, receipts, or income
derived from the operation of, or generated by, the Security, including,
without limitation, casualty insurance and condemnation proceeds. As
utilized herein, the term "Operating Expenses" means all reasonable and
customary costs and expenses, actually incurred by Mortgagor in cash in the
usual and ordinary course of operating, maintaining, and managing the
Security while an uncured Monetary Default exists (but expressly excluding
(i) capital expenditures and extraordinary repairs or expenses, (ii)
depreciation and amortization, (iii) distributions and payments to Mortgagor,
any of Mortgagor's partners, or any of their respective general or limited
partners, shareholders, officers, directors, or employees, or any affiliate,
subsidiary, or other entity that is controlled by any of them, other than
management fees paid to any such person or entity not in excess of three
percent (3%) of collected Gross Revenues, (iv) noncash expenditures; and (v)
management fees in excess of four percent (4.00%) of Gross Revenues). As
utilized herein, the term "Net Revenues" means Gross Revenues less Operating
Expenses.
g. The breach or untruth of any representation, warranty, covenant
or agreement made by Mortgagor in any way relating to any environmental matter
in this Mortgage or any of the Other Loan Documents or any other document
executed in connection with the loan evidenced by the Note, including, without
limitation, Article II, Paragraph 29, of this Mortgage, or the failure to
perform under any related indemnification, including, without limitation, all
obligations, covenants, agreements, representations, warranties, and
indemnifications on the part of Mortgagor arising under the Environmental
Agreement.
h. The destruction or removal of any Tangible Property (as defined
in the Security Agreement) from the Security in violation of Paragraph 3 of the
Security Agreement.
i. The termination, amendment, or entering into of any lease of all
or any portion of the Security in a manner prohibited by this Mortgage or any of
the Other Loan Documents.
j. The willful or grossly negligent violation of any law, ordinance,
rule, regulation, or other legal requirement applicable to (i) Mortgagor, (ii)
all or any portion of the Security or its use, occupancy, operation,
maintenance, improvement, or repair, (iii) the Note, this Mortgage or any of the
Other Loan Documents, or any other documents executed in connection therewith,
or (iv) the loan evidenced by the Note.
31
k. The breach of any of the provisions of this Mortgage or any of
the Other Loan Documents prohibiting transfer or further encumbrance of the
Security, including, without limitation, those contained in Article III,
Paragraph 4.h, of this Mortgage, Article IV, Paragraph 8, of this Mortgage, and
Paragraph 2 of the Security Agreement. Mortgagor expressly agrees and
acknowledges that, notwithstanding anything to the contrary contained in the
Note, this Mortgage, or any of the Other Loan Documents, in the event of a
breach of any such provision of the Mortgage or any of the Other Loan Documents
Mortgagor shall be fully and personally liable for all principal, interest,
prepayment charges, liquidated damages for involuntary prepayment, and all other
charges and sums due under the Note, this Mortgage, or any of the Other Loan
Documents to the same extent as though the Note, this Mortgage, and the Other
Loan Documents contained no limitation on recourse against or liability of
Mortgagor.
Upon the occurrence of any Event of Default the sole remedy of
Mortgagee for the recovery of the Indebtedness (other than the Recourse
Obligations) will be to realize upon the benefit of the Security provided by
this Mortgage and the Other Loan Documents and to pursue its remedies under the
Environmental Agreement and the Carveout Indemnification. Upon the occurrence
of any such Event of Default, except with respect to the Recourse Obligations
and the Environmental Agreement and the Carveout Indemnification, neither
Mortgagor nor any of the Carveout Indemnitors or any of their respective assets
other than the Security, will be liable for the Indebtedness. Notwithstanding
the foregoing, no covenant or agreement contained in the Note, this Mortgage, or
any of the Other Loan Documents will constitute a release or impairment of any
or all of the Indebtedness, except to the extent expressly provided herein, or
of the benefit of the Security provided by the Mortgage and the Other Loan
Documents, or preclude the Mortgagee from exercising any right, privilege, or
remedy provided by, or otherwise available with respect, to the Note, this
Mortgage, any of the Other Loan Documents, or the Carveout Indemnification,
including, without limitation, institution of appropriate proceedings to realize
upon the Security provided by this Mortgage and the Other Loan Documents. The
Recourse Obligations shall be the personal obligations of the Mortgagor and the
Carveout Indemnitors, jointly and severally, and the Mortgagee may pursue the
Mortgagor and/or any of the Carveout Indemnitors, or any combination of them,
for personal liability on the Recourse Obligations, and may obtain a deficiency
judgment for the Recourse Obligations in connection with any action to foreclose
the Mortgage and/or any or all of the Other Loan Documents.
Mortgagor agrees that a separate action or actions may be brought
and prosecuted against Mortgagor under this Paragraph 15 whether or not an
action is brought to foreclose or otherwise enforce this Mortgage or any of
the Other Loan Documents. The enforcement of Mortgagor's obligations under
this Paragraph 15 shall not be deemed to constitute an action for recovery of
any portion of the Indebtedness other than the Recourse Obligations nor for
the recovery of a deficiency judgment against Mortgagor following foreclosure
of this Mortgage. This Paragraph 15 shall survive (i) the repayment of the
Note, (ii) any assumption of the Indebtedness by a successor to Mortgagor,
whether or not the assumption was approved or disapproved by Mortgagee and
whether or not Mortgagor was otherwise released from liability under this
Mortgage and the Other Loan Documents (it is expressly understood and agreed,
however, that Miami Gardens Associates shall have no liability for any acts,
omissions, events and/or obligations that are conclusively determined to have
arisen, occurred, or accrued solely and in their entirety after the time of
any conveyance of the Mortgaged Premises that is consented to by the
Mortgagee in accordance with the provisions of Article IV, Paragraph 8 hereof
and that were not caused, in whole or in part, directly or indirectly, by any
act or omission of Miami Gardens Associates or any of its partners,
affiliates, agents, or employees), (iii) the conveyance of title to the
Security to Mortgagee or any successor or assign of Mortgagee, (iv) the
foreclosure of this Mortgage and the vesting of title to the Security in the
purchaser at the foreclosure sale, (v) the sale or conveyance of all or any
portion of the Security by Mortgagor, and (vi) the release of any portion of
the Security from the lien and security interest created by this Mortgage or
any of the Other Loan Documents.
32
IN WITNESS WHEREOF, the Mortgagor has executed and delivered this Mortgage
effective as of the date first stated above.
SIGNATURES WITNESSED BY: MIAMI GARDENS ASSOCIATES, a New Jersey
general partnership
By: GARDEN SQUARE ASSOCIATES, L.P., a Delaware
limited partnership, doing business in
Florida as Garden Square Associates of
Delaware, Ltd., as general partner of Miami
Gardens Associates
By: ENGLEWOOD GARDENS, INC., a Florida
corporation, sole general partner
/s/X. X. Xxxxxxxx
------------------- By: /s/ Xxxx X. Xxxxxxx
Witness ----------------------------
Xxxx X. Xxxxxxx, President
X. X. Xxxxxxxx
-------------------
Printed Name of Witness
(CORPORATE SEAL)
/s/ Xxxxx Cicierllo
-------------------
Witness
Xxxxx Cicierllo
--------------------
Printed Name of Witness
As to Englewood Gardens, Inc.
By: GSG PARTNERS III, L.P., a Delaware limited
partnership, doing business in Florida as GSG
Partners III, Ltd., as general partner of
Miami Garden Associates
By: GSG INVESTORS III, INC., a Delaware
corporation, sole general partner
/s/ Xxxxx Cicierllo
-------------------- By: /s/ Xxxxxx Xxxxx
Witness -----------------------
Xxxxxx Xxxxx, President
M. Cicierllo
-------------------- (CORPORATE SEAL)
Printed Name of Witness
/s/Xxxxxxx Xxxx
--------------------
Witness
Xxxxxxx Xxxx
--------------------
Printed Name of Witness
As to GSG Investors III, Inc.
By: BMC GARDEN SQUARE INVESTMENT, INC., a Florida
corporation, as general partner of Miami
Garden Associates
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. XxXxxx
-------------------- ---------------------------------
Witness Xxxxxxx X. XxXxxx, President
Xxxx X. Xxxxxxx
--------------------
Printed Name of Witness
(CORPORATE SEAL)
/s/ Xxxxxxx X. Xxxxxxx
------------------------
Witness
Xxxxxxx X. Xxxxxxx
------------------------
Printed Name of Witness
As to BMC Garden Square Investment, Inc.
33
STATE OF NEW JERSEY)
)
COUNTY OF BERGEN )
THE FOREGOING INSTRUMENT was acknowledged before me this 18th day of
December, 1995, by XXXX X. XXXXXXX, as President of Englewood Gardens, Inc., a
Florida corporation, which is the sole General Partner of Garden Square
Associates, L.P., a Delaware limited partnership, doing business in Florida as
Garden Square Associates of Delaware, Ltd., which is acting in its capacity as a
General Partner of Miami Gardens Associates, a New Jersey general partnership,
on behalf of the corporation, limited partnership, and the general partnership.
He is either personally known to me or has produced_______________as
identification.
/s/ Xxxxxx Xxxxx
------------------------------
Notary Public, State of_______
Name Printed:_________________
Commission No.:_______________
(Affix Seal) My Commission Expires:________
XXXXXX XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Feb. 17, 0000
XXXXX XX XXX XXXXXX)
)
COUNTY OF BERGEN )
THE FOREGOING INSTRUMENT was acknowledged before me this 18th day of
December, 1995, by XXXXXX XXXXX, as President of GSG Investors III, Inc., a
Delaware corporation, which is the sole General Partner of GSG Partners III,
L.P., a Delaware limited partnership, doing business in Florida as GSG Partners
III, Ltd., which is acting in its capacity as a General Partner of Miami Gardens
Associates, a New Jersey general partnership, on behalf of said corporation,
limited partnership and general partnership. He is either personally known to
me or has produced______________ as identification.
/s/ Xxxxxx Xxxxx
------------------------------
Notary Public, State of_______
Name Printed:_________________
Commission No.:_______________
(Affix Seal) My Commission Expires:________
XXXXXX XXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Feb. 17, 0000
XXXXX XX XXXXXXX )
)
COUNTY OF PALM BEACH )
THE FOREGOING INSTRUMENT was acknowledged before me this 19th day of
December, 1995 by XXXXXXX X. XXXXXX, as President of BMC Garden Square
Investment, Inc., a Florida corporation, which is acting in its capacity as a
General Partner of Miami Gardens Associates, a New Jersey general partnership,
on behalf of said corporation and general partnership. He is either personally
known to me or has produced_______________as identification.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Notary Public, State of Florida
Name Printed: Xxxxxxx X. Xxxxxxx
(SEAL) Commission No.: CC 199815
My Commission Expires: 6/14/96
(Affix Seal)
34
EXHIBIT "A" - Legal Description
A portion of Tract "A" of "XXXXXX XXXX PLAT", according to the Plat thereof as
recorded in Plat Book 138, at Page 85, of the Public Records of Dade County,
Florida, being more particularly described as follows:
Commence at the Southwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 East;
thence North 89 degrees 38 minutes 39 seconds East, along the South line of said
Section 3 for 700.53 feet; thence North 02 degrees 35 minutes 29 seconds West,
along a line 700 feet East of and parallel with the West line of said Section 3,
for 55.04 feet to the POINT OF BEGINNING of the hereinafter described Parcel of
Land; said point being the Southeast corner of said Tract "A" of the said Plat
of "XXXXXX XXXX PLAT"; thence South 89 degrees 38 minutes 39 seconds West, along
a line 55 feet North of and parallel with said South line of said Section 3,
said line being the North Right-of-Way line of Miami Gardens Drive (N.W. 186th
Street) as shown on the said Plat of "XXXXXX XXXX PLAT", for 180.00 feet thence
North 00 degrees 21 minutes 21 seconds West for 30.00 feet thence South 89
degrees 38 minutes 39 seconds West, for 30.00 feet; thence South 00 degrees 21
minutes 21 seconds East for 30.00 feet; thence South 89 degrees 38 minutes 39
seconds West, along a line 55 feet North of and parallel with said South line of
said Section 3, said line being the North Right-of-Way line of Miami Gardens
Drive (N.W. 186th Street) as shown on the said Plat of "XXXXXX XXXX PLAT", for
300.50 feet, thence North 02 degrees 35 minutes 29 seconds West, along a line
189.89 feet East of and parallel with the West line of said Section 3, for
224.00 feet; thence South 89 degrees 38 minutes 39 seconds West, along a line
278.83 feet North of and parallel with the South line of said Section 3, for
150.00 feet; thence North 02 degrees 35 minutes 29 seconds West, along a line 40
feet East of and parallel with the West line of said Section 3, and said line
being the East Right-of-Way line of X.X. 00xx Xxxxxx as shown on the said Plat
of "XXXXXX XXXX PLAT", for 436.30 feet; thence North 89 degrees 38 minutes 29
seconds East, along a line 55 feet North of and parallel with South line of
Tract 43 of "FLORIDA FRUIT LANDS COMPANY'S SUBDIVISION NO. 1", according to the
Plat thereof as recorded in Plat Book 2, at Page 17, of the Public Records of
Dade County, Florida, said line also being the North line of Tract "A" of said
Plat of "XXXXXX XXXX PLAT", for 660.50 feet; thence South 02 degrees 35 minutes
29 seconds East, along a line 700 feet East of and parallel with the West line
of said Section 3, for 660.33 feet to the POINT OF BEGINNING.
Said lands lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 East, Dade County,
Florida.
TOGETHER WITH a perpetual, non-exclusive easement for pedestrian and vehicular
ingress and egress and parking over and upon the following described parcel as
contained in the certain cross access easement filed May 17, 1990, in Official
Records Book 14550, at Page 2602:
The West 149.89 feet of the South 223.83 feet of Tract "A" of "XXXXXX XXXX PLAT"
according to the Plat thereof recorded in Plat Book 138, at Page 85, of the
Public Records of Dade County, Florida, being more particularly described as
follows:
Commence at the Southeast corner of said Tract "A", thence run South 89 degrees
38 minutes 39 seconds West along the South line of said Tract "A", also being
the North Right-of-Way line of Miami Gardens Drive, for a distance of 510.50
feet to the Point of Beginning, thence continue South 89 degrees 38 minutes 39
seconds West for a distance of 125.96 feet to a Point of Curvature of a circular
curve concave to the Northeast; thence run Northwesterly along the arc of said
circular curve, having a radius of 25.00 feet thru a central angle of 87 degrees
45 minutes 52 seconds, for
an arc distance of 38.29 feet to a point of tangency; thence run North 02
degrees 35 minutes 29 seconds West along the West line of said Tract "A", also
being the East Right-of-Way line of N.W. 87 Avenue, for a distance of 199.96
feet to a point; thence run North 89 degrees 38 minutes 39 seconds East along
the North line of the South 223.83 feet of said Tract "A" for a distance of
150.00 feet to point; thence run South 02 degrees 35 minutes 29 seconds East
along the East line of the West 149.89 feet of said Tract "A" for a distance of
224.00 feet to the Point of Beginning.
TOGETHER with a perpetual, non-exclusive easement for the purpose of
automobile and pedestrian ingress and egress and automobile parking created at
Paragraph 1 of the Reciprocal Shopping Center Easement Agreement by and between
MIAMI GARDENS ASSOCIATES, a New Jersey partnership, and XxXxxxxx'x Corporation,
a Delaware corporation, dated October 3, 1994, filed October 27, 1994, in
Official Records Book 16560, at Page 1778, of the Public Records of Dade County,
Florida.
LESS THE FOLLOWING LANDS:
(Out-Parcel "B" Miami Gardens Shopping Center)
A portion of Tract "A" of "XXXXXX XXXX PLAT", according to the Plat thereof as
recorded in Plat Book 138, at Page 85, of the Public Records of Dade County,
Florida being more particularly described as follows:
COMMENCE at the Southwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 East;
thence North 89 degrees 38 minutes 39 seconds East along the South line of said
Section 3 for 700.53 feet; thence North 02 degrees 35 minutes 29 seconds West
for 55.04 feet to a point on the South Line of said Tract "A", said point being
the Southeast Corner of said Tract "A", thence South 89 degrees 38 minutes 39
seconds West along the South line of said Tract "A", for 44.04 feet to the Point
of Beginning of the hereinafter described Parcel of Land; thence continue South
89 degrees 38 minutes 39 seconds West along said South line of said Tract "A"
for 135.96 feet; thence North 00 degrees 21 minutes 21 seconds West for 30.00
feet; thence South 89 degrees 38 minutes 39 seconds West for 26.01 feet; thence
North 00 degrees 21 minutes 21 seconds West for 120.00 feet; thence North 89
degrees 38 minutes 39 seconds East for 136.88 feet to a point of curvature of a
circular curve to the right, concave Southwesterly; thence Easterly,
Southeasterly and Southerly along the arc of said curve, having a radius of
20.00 feet and central angle of 87 degrees 45 minutes 52 seconds, for an arc
distance of 30.64 feet to a point of tangency; thence South 02 degrees 35
minutes 29 seconds East for 130.88 feet to the Point of Beginning.
Said lands lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxx Xxxxxx,
Xxxxxxx.
Exhibit "B"
PERMITTED EXCEPTIONS
Taxes and assessments for the year 1996 and subsequent years, which are not yet
due and payable.
Terms, conditions and easements set out in Reciprocal Shopping Center Easement
Agreement filed October 27, 1994, in Official Records Book 16560, at Page 1778,
of the Public Records of Dade County, Florida.
Terms, conditions and easements set out in Grant of Easement in favor of
Metropolitan Dade County filed October 27, 1994, in Official Records Book
16560, at Page 1763, of the Public Records of Dade County, Florida.
Conditions and Restrictions set out in Restrictive Covenants filed October 27,
1994, in Official Records Book 16560, at Page 1794, of the Public Records of
Dade County, Florida.
Rights of tenants in possession as tenants only under unrecorded written leases
as disclosed to Lender in writing.
Lease Agreement dated August 10, 1989, between Centrum G.B. II Corporation and
Publix Super Markets, Inc., as amended by Memorandum of Lease filed in Official
Records Book 15023, at Page 2034, of the Public Records of Dade County, Florida.
Lease Agreement dated December 18, 1989, between Centrum G.B. II Corporation and
Xxxx Xxxxxx Corporation filed in Official Records Book 14471, at Page 821, of
the Public Records of Dade County, Florida.
The Plat of Xxxxxx Xxxx Properties filed in Plat Book 138, at Page 85 reveals
the following:
(a) Ten feet utility easement along all boundaries of Tract A.
(b) Signal utility easement in the southwest corner of Tract A.
(c) The utility easements as shown on the Plat are hereby reserved for the
installation and maintenance of public utility.
(d) Individual xxxxx should not be permitted within this subdivision except for
sprinkler systems, swimming pools or air conditioners.
(e) The use of septic tanks will not be permitted on Tract "A" unless approved
for use and in accordance with county and state regulations.
(f) All new electric and communications lines except transmission lines within
this subdivision shall be installed under ground.
Page 1 of 3
(g) The signal utility easement as shown on the southwest corner of Tract
A of the Plat is hereby provided for the installation and maintenance
of traffic signal equipment and/or street lights.
(h) The streets and avenues as shown on the Plat together with all
existing and future planting, trees, shrubbery and fire hydrants
thereon are hereby rededicated to the perpetual use of the public for
proper purposes reserving to the dedicators or their successors or
assigns, the reversion or reversions thereof whenever discontinued by
law.
9. Matters set forth in Paragraph A of Declaration of Restrictive Covenants
filed on January 19, 1988, and recorded in Official Records Book 13544, at
Page 1658, as supplemented on July 29, 1988 and recorded in Official
Records Book 13768, at Page 1457; and as modified on January 9, 1989 and
recorded in Official Records Book 13953; at Page 1428, of the Public
Records of Dade County, Florida.
10. Agreement for Water, Sanitary Sewage and Sewage Disposal between Centrum
G.B. II Corporation and Metropolitan Dade County, filed on October 11,
1989, and recorded in Official Records Book 14285, at Page 3012, amended by
Assignment Assumption and Acceptance of Agreement Rights into Xxxxxx Xxxx
Properties filed on April 9, 1990, and recorded in Official Records Book
14500, at Page 2929, and amended by Assignment, Assumption, and Acceptance
of Agreement Rights filed in Official Records Book 16459, at Page 4993, all
of the Public Records of Dade County, Florida.
11. Conditions and restrictions set out in Declaration of Restrictive Covenants
in Lieu of Unity of Title filed on February 8, 1991 and recorded in
Official Records Book 14890, at Page 846, of the Public Records of Dade
County, Florida.
12. Conditions and restrictions set out in Declaration of Restrictions filed on
May 17, 1990, and recorded in Official Records Book 14550, at Page 2596, of
the Public Records of Dade County, Florida.
13. Terms, conditions and easements set out in Cross Access Easement and
Operating Agreement between Xxxxxx Xxxx Properties and Chevron U.S.A., Inc.
filed on May 17, 1990, and recorded in Official Records Book 14550, at Page
2602, of the Public Records of Dade County, Florida.
14. Easement in favor of Florida Power and Light Company filed on August 15,
1991, and recorded in Official Records Book 15153, at Page 435, of the
Public Records of Dade County, Florida.
15. Grant of Easement to Metropolitan Dade County filed on October 23, 1991,
and recorded in Official Records Book 15242, at Page 1110, of the Public
Records of Dade County, Florida.
Page 2 of 3
The following matters of survey as disclosed by that certain survey last updated
December 12, 1995, prepared by Xxxxxx & Associates, Inc. and identified as Job
Xx. 00-000, Xxxx Xx. X-0000:
(a) Curb and light pole encroaching ten foot utility easement near the
Southeast corner.
(b) Curb and concrete fence encroaching ten foot utility easement along the
east property line.
(c) Concrete fence encroaching the ten foot utility easement along the North
property line.
(d) Curbs, chain-link fence and french drains encroaching the ten foot utility
easement along the west property line.
(e) Fire hydrants, water meters, light poles, water valves and drainage manhole
located outside of the recorded easements in various locations throughout
the property.
(f) Concrete curbs encroaching on ten foot Florida Power & Light easement in
the northeast corner of the property.
(g) Concrete walks, chain link fence and curbs encroaching ten foot Florida
Power & Light easement in the northwest corner of the property.
(h) Electric Pad and Southern Xxxx Pad encroaching outside the ten foot utility
easement in the northwest corner of the property.
(i) Curbs encroaching the Sewer System Easement (ORB 15242, page 1110, Dade
County Records) in various locations throughout the property.
(j) Curbs encroaching the Water Distribution Easement (ORB 15242, page 1110) in
various locations throughout the property.
Page 3 of 3
EXHIBIT "C"
KEY LEASES
1. Lease Agreement dated August 10, 1989, between Centrum G.B. II Corporation
and Publix Super Markets, Inc., as amended by Memorandum of Lease filed in
Official Records Book 15023, Page 2034, of the Public Records of Dade
County, Florida.
2. Lease Agreement dated December 18, 1989, between Centrum G.B. II
Corporation and Xxxx Xxxxxx Corporation filed in Official Records Book
14471, Page 821, of the Public Records of Dade County, Florida.
