Prepared By & Return To:
Xxxxx Xxxxxxxxx, Esquire
LOWNDES, DROSDICK, DOSTER, XXXXXX
& XXXX, P.A.
000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage") executed December 30, 1996 by THE PUBLISHING COMPANY OF NORTH
AMERICA, INC., a Florida corporation, whose address for notice under this
Mortgage is 000 Xxxxx Xxxxxxxxxx Xxxx Xxxx., Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Borrower") to and in favor of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association organized and existing
under the laws of the United States of America, whose address is 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Lender").
W I T N E S S E T H:
That for divers good and valuable considerations and to secure the
payment of an indebtedness in the aggregate sum of EIGHT HUNDRED THOUSAND AND
NO/100 DOLLARS ($800,000.00), or so much thereof as may be advanced, to be paid
in accordance with a note of even date herewith (hereinafter referred to as the
"Note") (which note has a maturity date of December 5, 2011) together with
interest thereon and any and all sums due or which may become due from the
Borrower to the Lender, the Borrower does grant, bargain, sell, alien, remise,
release, convey and confirm unto the Lender, its successors and assigns, in fee
simple, all of that certain tract of land of which the Borrower is now seized
and possessed and in actual possession, situate in the County of Volusia, State
of Florida, which is more fully described in Exhibit "A" attached hereto and
made a part hereof, together with the buildings and improvements thereon erected
or to be erected (hereinafter referred to as the "Premises");
TOGETHER with:
(a) all leasehold estate, and all right, title and interest of
Borrower in and to all leases or subleases covering the Premises or any
portion thereof now or hereafter existing or entered into, and all
right, title and interest of Borrower thereunder, including, without
limitation, all cash or security deposits, advance rentals, and
deposits or payments of similar nature;
(b) all right, title and interest of Borrower in and to all
options to purchase or lease the Premises or any portion thereof or
interest therein, and any greater estate in the Premises owned or
hereafter acquired;
(c) all easements, streets, ways, alleys, rights-of-way and
rights used in connection
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therewith or as a means of access thereto,
and all tenements, hereditaments and appurtenances thereof and thereto,
and all water rights;
(d) any and all buildings, structures and improvements now or
hereafter erected thereon, including, but not limited to the fixtures,
attachments, appliances, equipment, machinery, and other articles
attached to said buildings, structures and improvements (sometimes
hereinafter referred to as the "Improvements");
(e) all fixtures, appliances, machinery, equipment, furniture,
furnishings and articles of personal property now or hereafter affixed
to, placed upon or used in connection with the operation of any of said
Premises; all gas, steam, electric, water and other heating, cooking,
refrigerating, lighting, plumbing, ventilating, irrigating and power
systems, machines, appliances, fixtures, and appurtenances which are
now or may hereafter pertain or be used with, in or on said Premises,
even though they may be detached or detachable and all building
improvement and construction materials, supplies and equipment
hereafter delivered to said land contemplating installation or use in
the construction thereon and all rights and interests of Borrower in
building permits and architectural plans and specifications relating to
contemplated constructions or Improvements on said Premises and all
rights and interests of Borrower in present or future mortgage loan
commitments pertaining to any of said Premises or Improvements thereon
(sometimes hereinafter referred to as the "Personal Property");
(f) all awards and proceeds of condemnation for the Premises
or any part thereof to which Borrower is entitled for any taking of all
or any part of the Premises by condemnation or exercise of the right of
eminent domain. All such awards and condemnation proceeds are hereby
assigned to Lender and the Lender is hereby authorized, subject to the
provisions contained in this Mortgage, to apply such awards and
condemnation proceeds or any part thereof, after deducting therefrom
any expenses incurred by the Lender in the collection or handling
thereof, toward the payment, in full or in part, of the Note,
notwithstanding the fact that the amount owing thereon may not then be
due and payable;
(g) all right, title and interest in and to and payments under
any performance or payment bonds issued with respect to the Premises or
for the construction of improvements thereon, to which Borrower is
entitled;
(h) all rents, issues and profits of the Premises and all
the estate, right, title and interest of every nature whatsoever of
the Borrower in and to the same;
(i) all accounts (including contract rights) and general
intangibles pertaining to or arising from or in connection with all or
any part of the Mortgaged Property, as hereinafter defined, including
without limitation all proceeds and choses in action arising under any
insurance policies maintained with respect to all or any part of the
Mortgaged Property; and,
(j) all proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the
foregoing items.
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All of the foregoing real and personal property, and all rights, privileges and
franchises are collectively referred to as the "Mortgaged Property."
TO HAVE AND TO HOLD all and singular the Mortgaged Property hereby
conveyed, and the tenements, hereditaments and appurtenances thereunto belonging
or in anywise appertaining, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof and also all the estate, right,
title interest property, possession, claim and demand whatsoever as well in law
as in equity of the said Borrower in and to the same and every part and parcel
thereof unto the said Lender in fee simple.
PROVIDED ALWAYS that if the Borrower shall pay to the Lender any and
all indebtedness due by Borrower to Lender (including the indebtedness evidenced
by the Note and any and all renewals of the same) and shall perform, comply with
and abide by each and every stipulation, agreement, condition, and covenant of
the Note and of this Mortgage; then this Mortgage and the estate hereby created
shall cease and be null and void. Provided, it is further covenanted and agreed
by the parties hereto that this Mortgage also secures the payment of and
includes all future or further advances as hereinafter set forth, to the same
extent as if such made on the date of the execution of this Mortgage, and any
disbursements made for the payment of tax, levies or insurance on the Mortgaged
Property, with interest on such disbursements at the Default Rate as hereinafter
defined.
To protect the security of this Mortgage, the Borrower further
covenants, warrants and agrees with the Lender as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF BORROWER
1.01 Payment of Secured Obligations. Borrower shall pay when due the
principal of, and the interest on, the indebtedness evidenced by the Note, and
the charges, fees and the principal of, and interest on, any future advances
secured by this Mortgage and shall otherwise comply with all the terms of the
Note and this Mortgage.
1.02 Warranties and Representations. Borrower hereby covenants with
Lender that Borrower is indefeasibly seized of the Mortgaged Property in fee
simple; that the Borrower has full power and lawful right to convey the same in
fee simple as aforesaid; that it shall be lawful for Borrower at all times
peaceably and quietly to enter upon, hold, occupy and enjoy said Mortgaged
Property and every part thereof; that Borrower will make such further assurances
to perfect the lien interest in said premises in Lender, as may reasonably be
required; and that Borrower does hereby fully warrant the title to the Mortgaged
Property and every part thereof and will defend the same against the lawful
claims of all persons whomsoever.
Borrower further represents and warrants to Lender that all
information, reports, paper and data given to Lender with respect to Borrower,
and to the loan evidenced by the Note and Mortgage are accurate and correct in
all material respects and complete insofar as may be necessary to give Lender a
true and accurate knowledge of the subject matter.
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1.03 Ground Leases, Leases, Subleases and Easements. Borrower, at
Borrower's sole cost and expense, shall maintain and cause to be performed all
of the covenants, agreements, terms, conditions and provisions on its part to
be kept, observed and performed under any ground lease, lease, sublease or
easements which may constitute a portion of or an interest in the Premises,
shall require its tenants or subtenants to keep, observe and perform all the
covenants, agreements, terms, conditions and provisions on their part to be
kept, observed or performed under any and all ground leases, leases, subleases
or easements; and shall not suffer or permit any breach or default to occur with
respect to the foregoing; and in default thereof the Lender shall have the right
to perform or to require performance of any such covenants, agreements, terms,
conditions and provisions of any such ground lease, lease, sublease or easements
and to add any expense incurred in connection therewith to the debt secured
hereby, which such expense shall bear interest from the date of payment to the
date of recovery by the Lender at the Default Rate as hereinafter defined. Any
such payment by the Lender with interest thereon shall be immediately due and
payable. The Borrower shall not, without the consent of the Lender, consent to
the modification, amendment, cancellation, termination or surrender of any such
ground lease, lease, sublease, or easement.
No release or forbearance of any of Borrower's obligation under any
such ground lease, lease, or sublease shall release Borrower from any of its
obligations under this Mortgage.
1.04 Required Insurance. Borrower will, at Borrower's sole cost and
expense, maintain or cause to be maintained with respect to the Mortgaged
Property, and each part thereof, the following insurance:
(a) Insurance against loss or damage to the Improvement by
fire and any of the risks covered by insurance of the type now known as
"fire and extended coverage" in an amount not less than the original
amount of the Note or the full replacement cost of the Improvements
whichever is less; and
(b) Such other insurance, and in such amounts, as may from
time to time be required by Lender against the same or other hazards.
All policies of insurance required by the terms of this Mortgage shall
contain an endorsement or agreement by the insurer that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act or
negligence of Borrower which might otherwise result in forfeiture of said
insurance and the further agreement of the insurer waiving all rights of set
off, counterclaim or deductions against Borrower.
Borrower may effect for its own account any insurance not required
under this Section 1.04, but any such insurance effected by Borrower on the
Premises, whether or not so required, shall be for the mutual benefit of
Borrower and Lender and shall be subject to the other provisions of this
Mortgage.
1.05 Delivery of Policies, Payment of Premiums. All policies of
insurance shall be issued by companies and in amounts in each company
satisfactory to Lender. All policies of insurance shall have attached thereto a
lender's loss payment endorsement for the benefit of Lender in form satisfactory
to
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Lender. Borrower shall furnish Lender with an original policy of all policies
of required insurance. If Lender consents to Borrower providing any of the
required insurance through blanket policies carried by Borrower and covering
more than one location, then Borrower shall furnish Lender with a certificate of
insurance for each such policy setting forth the coverage, the limits of
liability, the name of the carrier, the policy number, and the expiration date.
At least thirty (30) days prior to the expiration of each such policy, Borrower
shall furnish Lender with evidence satisfactory to Lender of the Payment of
premium and the reissuance of a policy continuing insurance in force as required
by this Mortgage. All such policies shall contain a provision that such policies
will not be canceled or materially amended, which term shall include any
reduction in the scope or limits of coverage, without at least thirty (30) days
prior written notice to Lender. In the event Borrower fails to provide,
maintain, keep in force or deliver and furnish to Lender the policies of
insurance required by this Section, Lender may procure such insurance or single
interest insurance for such risks covering Lender's interest, and Borrower will
pay all premiums thereon promptly upon demand by Lender, and until such payment
is made by Borrower the amount of all such premiums together with interest
thereon at the rate of interest after maturity or default provided in the Note
or the maximum rate permitted by Florida law, whichever is less (the "Default
Rate"), and shall be deemed to be a part of the indebtedness secured by this
Mortgage.
1.06 Insurance Proceeds. After the happening of any casualty to
the Mortgaged Property or any part thereof, Borrower shall give prompt written
notice thereof to Lender.
(a) In the event of any damage to or destruction of the
Mortgaged Property, Lender shall have the option in its sole discretion
of applying or paying all or part of the insurance proceeds (I) to any
indebtedness secured hereby and in such order as Lender may determine,
or (ii) to the restoration of the Improvements, or (iii) to Borrower.
(b) In the event of such loss or damage, all proceeds of
insurance shall be payable to Lender, and Borrower hereby authorizes
and directs any affected insurance company to make payment of such
proceeds directly to Lender. Lender is hereby authorized and empowered
by Borrower to settle, adjust or compromise any claims for loss, damage
or destruction under any policy or policies of insurance.
(c) Except to the extent that insurance proceeds are received
by Lender and applied to the indebtedness secured hereby, nothing
herein contained shall be deemed to excuse Borrower from repairing or
maintaining the Mortgaged Property as provided in this Mortgage or
restoring all damage or destruction to the Mortgaged Property,
regardless of whether or not there are insurance proceeds available or
whether any such proceeds are sufficient in amount, and the application
or release by Lender of any insurance proceeds shall not cure or waive
any default or notice of default under this Mortgage or invalidate any
act done pursuant to such notice.
1.07 Assignment of Policies Upon Foreclosure. In the event of
foreclosure of this Mortgage or other transfer of title or assignment of the
Mortgaged Property in extinguishment, in whole or in part, of the debt secured
hereby, all right, title and interest of the Borrower in and to all policies of
insurance required by this Section shall inure to the benefit of and pass the
successor in interest to Borrower or the purchaser or grantee of the Mortgaged
Property. Borrower hereby appoints Lender its attorney-in-fact to endorse any
checks, drafts or other instruments representing any proceeds of such insurance,
whether
41
payable by reason of loss thereunder or otherwise.
1.08 Taxes, Utilities and Impositions. Borrower will pay, or cause to
be paid and discharged, on or before the last day on which they may be paid
without penalty or interest, all such duties, taxes, sewer rents, charges for
water, or for setting or repairing of meters, and all other utilities on the
Mortgaged Property or any part thereof, and any assessments and payments, usual
or unusual, extraordinary or ordinary, which shall be imposed upon or become due
and payable or become a lien upon the Premises or any part thereof and the
sidewalks or streets in front thereof and any vaults therein by virtue of any
present or future law of the United States or of the State, County, or City
wherein the Premises are located (all of the foregoing being herein collectively
called "Impositions"). In default of any such payment of any imposition, Lender
may pay the same and the amount so paid by Lender shall, at the Lender's option,
become immediately due and payable with interest at the Default Rate and shall
be deemed part of the indebtedness secured by this Mortgage.
If at any time there shall be assessed or imposed (i) a tax or
assessment on the Premises in lieu of or in addition to the Impositions payable
by Borrower pursuant to this Section or (ii) a license fee, tax or assessment
imposed on Lender and measured by or based in whole or in part upon the amount
of the outstanding obligations secured hereby, then all such taxes, assessments
or fees shall be deemed to be included within the term "Impositions" as defined
in this Section, and Borrower shall pay and discharge the same as herein
provided with respect to the payment of Impositions or at the option of Lender,
all obligations secured hereby, together with all accrued interest thereon,
shall immediately become due and payable. Anything to the contrary herein
notwithstanding, Lender shall have no obligation to pay any franchise, estate,
inheritance, income, excess profits or similar tax levied on Borrower or on the
obligations secured hereby.
Borrower will pay all mortgage recording taxes and fees payable with
respect to this Mortgage or other mortgage or transfer taxes due on account of
this Mortgage or the Note secured hereby.
Borrower will exhibit to Lender the original receipts or other
reasonably satisfactory proof of the payment of all Impositions which may affect
the Mortgaged Property or any part thereof or the lien of the Mortgage promptly
following the last date on which each Imposition is payable hereunder.
Notwithstanding the foregoing, Borrower shall have the right, after
prior written notice to Lender, to contest at its own expense the amount and
validity of any Imposition affecting the Mortgaged Property by appropriate
proceedings conducted in good faith and with due diligence and to postpone or
defer payment thereof, if and so long as:
(a) Such proceedings shall operate to suspend the collection
of such Imposition from Borrower or the Mortgaged Property; or
(b) Neither the Mortgaged Property nor any part thereof would
be in immediate danger of being forfeited or lost by reason of such
proceedings, postponement or deferment; and
(c) In the case of any Imposition affecting the Mortgaged
Property which might be or become a lien, encumbrance or charge upon or
result in any forfeiture or loss of the Mortgaged
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Property or any part thereof, or which might result in loss or
damage to Borrower or Lender, Borrower, prior to the date such
Imposition would become delinquent, shall have furnished Lender
with security satisfactory to Lender, and, in the event that such
security is furnished, Lender shall not have the right during the
period of the contest to pay, remove or discharge the Imposition.
1.09 Maintenance, Repairs, Alterations. Borrower shall keep the
Mortgaged Property, or cause the same to be kept, in good condition and repair
and fully protected from the elements to the satisfaction of Lender; Borrower
shall not commit nor permit to be committed waste thereon and shall not do nor
permit to be done any act by which the Mortgaged Property shall become less
valuable; Borrower will not remove, demolish or structurally alter any of the
Improvements (except such alterations as maybe required by laws, ordinances or
regulations) without the prior written permission of the Lender; Borrower shall
complete promptly and in good and workmanlike manner any building or other
improvement which may be constructed on the Premises and promptly restore in
like manner any Improvements which may be damaged or destroyed thereon and will
pay when due all claims for labor performed and materials furnished therefor;
Borrower shall use and operate, and shall require its lessees or licensees to
use or operate, the Mortgaged Property in compliance with all applicable laws,
ordinance, regulations, covenants, conditions and restrictions, and with all
applicable requirements of any ground lease, lease or sublease now or hereafter
affecting the Premises or any part thereof. Unless required by law or unless
Lender has otherwise agreed in writing, Borrower shall not allow changes in the
stated use of Mortgaged Property from that which was disclosed to Lender at the
time of execution hereof. Borrower shall not initiate or acquiesce to a zoning
change of the Mortgaged Property without the prior notice to and consent of
Lender. Lender and its representatives shall have access to the Premises at all
reasonable times to determine whether Borrower is complying with its obligations
under this Mortgage, including, but not limited to, those set out in this
Section.
1.10 Escrows for Taxes, Insurance, Assessments. In order to more fully
protect the security of this Mortgage, the Lender, at its option, in the event
Borrower at any time fails to make payment when due of all taxes, assessments,
public charges and insurance premiums as herein elsewhere required, may require
the Borrower to deposit with the Lender, together with and in addition to each
monthly payment due on account of the indebtedness evidenced by the Note, an
amount equal to one-twelfth (1/12) of the annual total of such taxes,
assessments, charges and premiums (all as estimated by the Lender in its sole
discretion) so as to place sufficient funds in the hands of Lender for the
payment of such taxes, assessments, charges and premiums as the same shall
become due, and the Lender may hold the sums so deposited without interest and
commingled with its general funds and apply the same to the payment of said
taxes, assessments, charges or premiums as they become due and payable. If at
any time the funds so held by Lender are insufficient to pay such taxes,
assessments, charges or premiums as they become due and payable, the Borrower
shall immediately, upon notice and demand by Lender, deposit with Lender the
amount of such deficiency, and the failure on the part of the Borrower to do so
shall entitle the Lender, at its option, to itself make such payments in
accordance with its right and pursuant to the conditions elsewhere in this
Mortgage provided. Whenever any default exists under this Mortgage, Lender may,
at its option, and without obligation so to do, apply any funds so held by it
upon such of the indebtedness secured hereby, and in such order and manner of
application as Lender may elect.
1.11 Eminent Domain. Should the Mortgaged Property, or any part thereof
or interest therein,
43
be taken or damaged by reason of any public use or improvement or condemnation
proceeding, or in any other manner ("Condemnation"), or should Borrower receive
any notice or other information regarding such Condemnation, Borrower shall
give prompt written notice thereof to Lender.
(a) Lender shall be entitled to all compensation, awards and
other payments or relief granted in connection with such Condemnation,
and shall be entitled, at its option, to commence, appear in and
prosecute in its own name any action or proceedings relating thereto.
Lender shall also be entitled to make any compromise or settlement in
connection with such taking or damage. All such compensation, awards,
damages, rights of action and proceeds awarded to Borrower (the
"Proceeds") are hereby assigned to Lender and Borrower agrees to
execute such further assignments of the Proceeds as Lender may require.
(b) In the event any portion of the Mortgaged Property is so
taken or damaged, Lender shall have the option in its sole and absolute
discretion, to apply all such Proceeds, after deducting therefrom all
costs and expenses (regardless of the particular nature thereof and
whether incurred with or without suit), including attorneys' fees,
incurred by it in connection with such Proceeds, upon any indebtedness
secured hereby, or to apply all such Proceeds, after such deductions,
to the restoration of the Mortgaged Property upon such conditions as
Lender may determine. Such application or release shall not cure or
waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
(c) Any amounts received by Lender hereunder (after payment of
any costs in connection with obtaining same), shall, if retained by
Lender, be applied in payment of any accrued interest and then in
reduction of the then outstanding principal sum of the Note,
notwithstanding that the same may not then be due and payable. Any
amount so applied to principal shall be applied to the payment of
installments of principal on the Note in inverse order of their due
dates.
1.12 Actions by Lender to Preserve the Security of This Mortgage. If
the Borrower fails to make any payment or to do any act as and in the manner
provided for in this Mortgage or the Note, the Lender, in its own discretion,
without obligation so to do and without notice to or demand upon Borrower and
without releasing Borrower from any obligation, may make or do the same in such
manner and to such extent as the Lender may deem necessary to protect the
security hereof. Borrower will pay upon demand all expenses incurred or paid by
Lender (including, but not limited to, attorneys fees and court costs including
those of appellate and bankruptcy proceedings) on account of the exercise of any
of the aforesaid rights or privileges or on account of any litigation which may
arise in connection with this Mortgage or the Note or on account of any attempt,
without litigation, to enforce the terms of this Mortgage or said Note. In case
the Mortgaged Property or any part thereof shall be advertised for foreclosure
sale and not sold, Borrower shall pay all costs in connection therewith.
In the event that the Lender is called upon to pay any sums of money to
protect this Mortgage and the Note as aforesaid, all monies advanced or due
hereunder shall become immediately due and payable, together with interest at
the Default Rate, computed from the date of such advance to the date of the
actual receipt of payment thereof by the Lender.
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1.13 Cost of Collection. In the event this Mortgage is placed in the
hands of an attorney for the collection of any sum payable hereunder, the
Borrower agrees to pay all costs of collection, including reasonable attorneys
fees including those in all appellate and bankruptcy proceedings, incurred by
the Lender, either with or without the institution of any action or proceeding,
and in addition to all costs, disbursements and allowances provided by law. All
such costs so incurred shall be deemed to be secured by this Mortgage.
1.14 Survival of Warranties. All representations, warranties and
covenants of Borrower contained herein or incorporated by reference shall
survive funding of the loan evidenced by the Note and shall remain continuing
obligations, warranties and representations of Borrower during any time when any
portion of the obligations secured by this Mortgage remain outstanding.
1.15 Additional Security. In the event Lender at any time holds
additional security for any of the obligations secured hereby, it may enforce
the sale thereof or otherwise realize upon the same, at its option, either
before or concurrently herewith or after a sale is made hereunder.
1.16 Inspections. Lender, or its agents, representatives or workmen,
are authorized to enter at any reasonable time upon or on any part of the
Premises for the purpose of inspecting the same, and for the purpose of
performing any of the acts it is authorized to perform under the terms of this
Mortgage.
I.1 Liens. Borrower shall pay and promptly discharge, at Borrower's
cost and expense, all liens, encumbrances and charges upon the Mortgaged
Property or any part thereof or interest therein. Borrower shall have the right
to contest in good faith the validity of any such lien, encumbrance or charge,
provided Borrower shall first deposit with Lender a bond or other security
satisfactory to Lender in such amounts as Lender shall reasonably require, and
provided further that Borrower shall thereafter diligently proceed to cause such
lien, encumbrance or charge to be removed and discharged. If Borrower shall fail
to discharge any such lien, encumbrance or charge, then, in addition to any
other right or remedy of Lender, the Lender may, but shall not be obligated to,
discharge the same, either by paying the amount claimed to be due, or by
procuring the discharge of such lien by depositing in court a bond for the
amount claimed or otherwise giving security for such claim, or in such manner as
is or may be prescribed by law. Any amount so paid by the Lender shall, at
Lender's option, become immediately due and payable with interest at the Default
Rate, and shall be deemed part of the indebtedness secured by this Mortgage.
1.18 Future Advances. This Mortgage is given to secure not only
existing indebtedness, but also future advances, whether such advances are
obligatory or are to be made at the option of Lender, or otherwise, as are made
within twenty (20) years from the date hereof, to the same extent as if such
future advances are made on the date of the execution of this Mortgage. The
total amount of indebtedness that maybe so secured may decrease to a zero amount
from time to time, or may increase from time to time, but the total unpaid
balance so secured at one time shall not exceed twice the face amount of the
Note, plus interest thereon, and any disbursements made for the payment of
taxes, levies or insurance on the Mortgaged Property, with interest on such
disbursements at the Default Rate as hereinafter defined.
1.19 No Limitation of Future Advance Rights. Borrower covenants
and agrees with Lender that:
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(a) Borrower waives and agrees not to assert any right to
limit future advances under this Mortgage, and any such attempted
limitation shall be null, void and of no force and effect. Any
correspondence by Borrower regarding the future advances must be sent
to Lender at the address set forth above and to Lender's counsel: Xxxxx
Xxxxxxxxx, Esquire, Lowndes, Drosdick, Doster, Xxxxxx & Xxxx,
Professional Association, Xxxx Xxxxxx Xxx 0000, Xxxxxxx, Xxxxxxx
00000-0000.
(b) An event of default under the Mortgage shall automatically
exist (I) if Borrower executes any instrument which purports to have or
would have the effect of impairing the priority of or limiting any
future advance which might ever be made under the Mortgage or (ii) if
Borrower takes, suffers, or permits any action or occurrence which
would adversely affect the priority of any future advance which might
ever be made under the Mortgage.
1.20 Appraisals. Borrower covenants and agrees that Lender may obtain
an appraisal of the Mortgaged Property when required by the regulations of the
Federal Reserve Board or the Office of the Comptroller of the Currency or at
such other times as the Lender may reasonably require. Such appraisals shall be
performed by an independent third party appraiser selected by the Lender. The
cost of such appraisal shall be borne by the Borrower. Borrower's failure or
refusal to sign such an engagement letter however shall not impair Lender's
right to obtain such an appraisal. Borrower agrees to pay the cost of such
appraisal within ten (10) days after receiving an invoice for such appraisal.
ARTICLE II
ASSIGNMENT OF LEASES, SUBLEASES,
FRANCHISES, RENTS, ISSUES AND PROFITS
2.01 Assignment of Rents. Borrower hereby collaterally assigns and
transfers to Lender all the leases, subleases, franchises, rents, issues and
profits of the Mortgaged Property, and hereby gives to and confers upon Lender
the right, power and authority to collect such rents, issues and profits as
herein set forth. Borrower irrevocably appoints Lender its true and lawful
attorney-in-fact. In the event of default under the Note or this Mortgage,
Lender shall have the right, at its option, immediately and without further
legal action being necessary, to demand, receive and enforce payment, to give
receipts, releases and satisfactions, and to xxx, in the name of Borrower or
Lender, for all such rents, issues and profits and apply the same to the
indebtedness secured hereby; provided, however, that Borrower shall have the
right to collect such rents, issues and profits (but not more than one month in
advance) prior to or so long as there is not an event of default under this
Mortgage.
2.02 Collection Upon Default. Upon any event of default under this
Mortgage, Lender may, at any time without notice, either in person, by agent or
by a receiver appointed by a court, and without regard to the adequacy of any
security for the indebtedness hereby secured, enter upon and take possession of
the Mortgaged Property, or any part thereof, in its own name, xxx for or
otherwise collect such rents, issues and profits, including those past due and
unpaid, and apply the same, less costs and expenses of operation and collection,
including attorneys' fees, upon any indebtedness secured hereby, and in such
order as Lender may determine. The collection of such rents, issues and profits,
or the entering upon and taking possession of the Mortgaged Property, or the
application thereof as aforesaid,
46
shall not cure or waive any default or notice of default hereunder or
invalidate any act done in response to such default or pursuant to such
notice of default.
2.03 Restriction on Further Assignments, etc. Except as hereinafter
specifically provided, Borrower shall not, without the prior written consent of
the Lender, assign the rents, issues or profits, or any part thereof, from the
Mortgaged Property or any part thereof, and shall not consent to the
modification, cancellation or surrender of any lease or sublease covering the
Mortgaged Property. An action of Borrower in violation of the terms of this
Section shall be void as against Lender in addition to being a default under
this Mortgage.
The Borrower shall not, without the consent of the Lender, consent to
the cancellation or surrender or, accept prepayment of rents, issues or profits,
other than rent paid at the signing of a lease or sublease, under any lease or
sublease now or hereafter covering the Mortgaged Property or any part thereof,
nor modify any such lease or sublease so as to shorten the term, decrease the
rent, accelerate the payment of rent, or change the terms of any renewal option;
and any such purported assignment, cancellation, surrender, prepayment or
modification made without the written consent of the Lender shall be void as
against the Lender. The Borrower shall, upon demand of the Lender, enter into an
agreement with the Lender with respect to the provisions contained in the
preceding provision regarding any lease or sublease covering said Mortgaged
Property or any part thereof, and the Borrower hereby appoints the Lender
attorney-in-fact of the Borrower to execute and deliver any such agreement on
behalf of the Borrower and deliver written notice thereof to the tenant to whose
lease such agreement relates.
The Borrower agrees to furnish to the Lender a copy of any modification
of any lease presently in effect and copies of all future leases affecting the
Mortgaged Property covered by this Mortgage, and failure to furnish to the
Lender a copy of any modification of a lease or a copy of any future lease
affecting said Mortgaged Property, shall be deemed a default under this Mortgage
and the Note, for which the holder of this Mortgage may, at its option, declare
the entire unpaid balance of the subject Mortgage and Note to be immediately due
and payable.
All leases or subleases hereafter entered into by Borrower with respect
to the Mortgaged Property or any part thereof, shall be subordinate to the lien
of this Mortgage unless expressly made superior to this Mortgage in the manner
hereinafter provided. At any time or times Lender may execute and record in the
appropriate Office of the Register or County Clerk of the County where the
Premises are situated, a Notice of Subordination reciting that the lease or
leases therein described shall be superior to the lien of this Mortgage. From
and after the recordation of such Notice of Subordination, the lease or leases
therein described shall be superior to the lien of this Mortgage and shall not
be extinguished by any foreclosure sale hereunder.
ARTICLE III
ENVIRONMENTAL CONDITION OF PREMISES
3.01 Environmental Condition of Property. Borrower hereby
warrants and represents to Lender after thorough investigation that:
47
(a) the premises are now and at all times hereafter will
continue to be in full compliance with all Federal, State and local
environmental laws and regulations, including but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA), Public Law Xx. 00-000, 00 Xxxx. 0000, and the Superfund Amendments
and Reauthorization Act of 1986 (XXXX), Public law Xx. 00-000, 000 Xxxx. 0000,
xxx
(x) as of the date hereof there are no hazardous materials,
substances, waste or other environmentally regulated substances
(including without limitation, any materials containing asbestos)
located on, in or under the Premises or used in connection therewith.
Borrower has obtained and will maintain all licenses, permits and
approvals required with respect thereto, and is and will remain in full
compliance with all of the terms, conditions and requirements of such
licenses, permits and approvals. Borrower further warrants and
represents that it will promptly notify Lender of any change in the
environmental condition of the Premises or in the nature or extent of
any hazardous materials, substances or wastes maintained on, in or
under the Premises or used in connection therewith, and will transmit
to Lender copies of any citations, orders, notices or other material
governmental or other communication received with respect to any other
hazardous materials, substances, waste or other environmentally
regulated substance affecting the Premises within five (5) days of
Borrower's receipt thereof.
Borrower hereby indemnifies and holds harmless Lender from and against
any and all damages, penalties, fines, claims, suits, liabilities, costs,
judgments and expenses (including attorneys', consultant's or expert's fees) of
every kind and nature incurred, suffered by or asserted against Lender as a
direct or indirect result of:
(c) any warranty or representation made by Borrower in
this paragraph being or becoming false or untrue in any material
respect or
(d) any requirement under the law, regulation or ordinance,
local, state or federal, regarding the removal or elimination of any
hazardous materials, substances, waste or other environmentally
regulated substances.
Borrower's obligations hereunder shall not be limited to any extent by
the term of the Note, and, as to any act or occurrence prior to payment in full
and satisfaction of said Note which gives rise to liability hereunder, shall
continue, survive and remain in full force and effect notwithstanding
foreclosure of this Mortgage, where Lender is the purchaser at the foreclosure
sale, or delivery of a deed in lieu of foreclosure to Lender.
Lender and its representatives shall have the right to enter onto the
Premises at reasonable times during the term of this Mortgage for the purpose of
conducting environmental inspections and testing. The cost of such inspections
and/or tests shall be borne by the Borrower if Lender has reason to believe that
Borrower's representations, covenants, warranties and certifications herein are
untrue or have been violated.
ARTICLE IV
SECURITY AGREEMENT
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4.01 Creation of Security Interest. Borrower hereby grants to Lender a
security interest in any and all personal property included within the Mortgaged
Property (herein the "Personal Property") located on or at the Premises,
including without limitation any and all property of similar type or kind
hereafter located on or at the Premises for the purposes of securing all
obligations of Borrower set forth in this Mortgage. This instrument is a
self-operative security agreement with respect to the above described property,
but Borrower agrees to execute and deliver on demand such other security
agreements, financing statements and other instruments as Lender may request.
4.02 Warranties, Representations and Covenants of Borrower.
Borrower hereby warrants, represents and
covenants as follows:
(a) Except for the security interest granted hereby, Borrower
is, and as to portions of the Personal Property to be acquired after
the date hereof will be, the sole owner of the Personal Property, free
from any adverse lien, security interest, encumbrance or adverse claims
thereon of any kind whatsoever. Borrower shall notify Lender of, and
shall defend the Personal Property against, all claims and demands of
all persons at any time claiming the same or any interest therein.
(b) Borrower shall not lease, sell, convey or in any manner
transfer the Personal Property without the prior written consent of
Lender.
(c) The Personal Property is not and shall not be used or
bought for personal, family or household purposes.
(d) The Personal Property shall be kept on or at the Premises
and Borrower will not remove the Personal Property from the Premises
without the prior written consent of Lender, except such portions or
items of Personal Property which are consumed or worn out in ordinary
usage, all of which shall be promptly replaced by Borrower.
(e) Borrower maintains a place of business in the State of
Florida and Borrower shall immediately notify Lender in writing of any
change in its place of business as set forth in the beginning of this
Mortgage.
(f) At the request of the Lender, Borrower shall join Lender
in executing one or more financing statements and renewals and
amendments thereof pursuant to the Uniform Commercial Code of Florida
in form satisfactory to Lender, and will pay the cost of filing the
same in all public offices wherever filing is deemed by Lender to be
necessary or desirable.
(g) All covenants and obligations of Borrower contained herein
relating to the Mortgaged Property shall be deemed to apply to the
Personal Property whether or not expressly referred to herein.
(h) This Mortgage constitutes a Security Agreement as that
term is used in the Uniform Commercial Code of Florida.
49
ARTICLE V
REMEDIES UPON DEFAULT
5.01 Events of Default. Any one or more of the following shall
constitute a default under this Mortgage and the Note hereby secured:
(a) Failure of Borrower to make one or more payments required
by said Note on the due date thereof.
(b) Failure of Borrower to pay the amount of any costs,
expenses and fees (including counsel fees) of the Lender, with interest
thereon, as required by any provision of this Mortgage.
(c) Failure to exhibit to the Lender, within ten (10) days
after demand, receipts showing payment of real estate taxes and
assessments.
(d) Except as hereinbefore permitted, the actual or threatened
alteration, demolition or removal of any building on the Premises
without written consent of the Lender.
(e) Failure to maintain the Improvements on the Premises as
herein required, free of any liens placed or threatened during the term
hereof.
(f) Failure to comply with any requirements or order or notice
of violation of law or ordinance issued by any governmental department
claiming jurisdiction over the Mortgaged Property within three (3)
months from the issuance thereof, or before any such violation becomes
a lien against the Mortgaged Property, whichever first occurs.
(g) Failure of Borrower or others to comply with or perform
any other warranty, covenant or agreement contained herein, in the
Note, in the Construction Loan Agreement, if any, Commitment Letter or
in any other document executed by Borrower in conjunction with this
transaction, of even date herewith.
(h) Any breach of any covenant or warranty or material untruth
of any representation of Borrower contained in this Mortgage, or the
Note or any guaranty executed in conjunction herewith.
(i) The institution of any bankruptcy, reorganization or
insolvency proceedings against the then owner or Borrower in possession
of the Mortgaged Property, or any guarantor, or the appointment of a
receiver or a similar official with respect to all or a substantial
part of the properties of the then owner or Borrower in possession of
the Mortgaged Property and a failure to have such proceedings dismissed
or such appointment vacated within a period of forty-five (45) days.
(j) The institution of any voluntary bankruptcy,
reorganization or insolvency proceedings by the then owner or Borrower
in possession of the Mortgaged Property, or any
50
guarantor, or the appointment of a receiver or a similar official with
respect to all or a substantial part of the properties of the then
owner or Borrower in possession of the Mortgaged Property at the
instance of the then owner or Borrower in possession of the
Mortgaged Property.
(k) The assertion or making of any levy, seizure, forfeiture
action, mechanic's or materialman's lien or attachment on the Mortgaged
Property or any part thereof.
(l) If default shall occur in any loan now or hereafter in
existence between Lender and Borrower or any mortgage encumbering
property in which the Borrower or any guarantor has any interest
whatsoever, and, conversely, the occurrence of an Event of Default
hereunder shall also constitute a default under any such other loan.
(m) The occurrence of any Event of Default under the Note, or
any loan agreement or guaranty, whether or not such event is
specifically set forth herein.
5.02 Default Rate. The Default Rate shall be the highest rate allowable
by law at the time of default, provided, however, that at no time shall any
interest or charges in the nature of interest be taken, exacted, received or
collected which would exceed the maximum rate permitted by law.
5.03 Acceleration Upon Default, Additional Remedies. In the event that
one or more defaults as above provided shall occur, the remedies available to
Lender shall include, but not necessarily be limited to, any one or more of the
following:
(a) Lender may declare the entire unpaid balance of the Note
immediately due and payable without notice.
(b) Lender may take immediate possession of the Mortgaged
Property or any part thereof(which Borrower agrees to surrender to
Lender) and manage, control or lease the same to such person or persons
and at such rental as it may deem proper and collect all rents, issues
and profits, therefrom, including those past due as well as those
thereafter accruing, with the right in the Lender to cancel any lease
or sublease for any cause which would entitle Borrower to cancel the
same; to make such expenditures for maintenance, repairs and costs of
operation as it may deem advisable; and after deducting the cost
thereof and a commission of five (5%) percent upon the gross amount of
rents collected, to apply the residue to the payment of any sums which
are unpaid hereunder or under the Note. The taking of possession under
this paragraph shall not prevent concurrent or later proceedings for
the foreclosure sale of the Mortgaged Property as provided elsewhere
herein.
(c) Lender may apply to any court of competent jurisdiction
for the appointment of a receiver or similar official to manage and
operate the Mortgaged Property, or any part thereof, and to apply the
net rents and profits therefrom to the payment of the interest and/or
principal of said Note and/or any other obligations of Borrower to
Lender hereunder. In event of such application, Borrower agrees to
consent to the appointment of such receiver or similar official, and
agrees that such receiver or similar official may be appointed without
notice to Borrower without regard to the adequacy of any security for
the debts and without regard to the solvency of
51
Borrower or any other person, firm or corporation who or which may be
liable for the payment of the Note or any other obligation of Borrower
hereunder.
(d) Without declaring the entire unpaid principal balance due,
the Lender may foreclose only as to the sum past due, without injury to
this Mortgage or the displacement or impairment of the remainder of the
lien thereof, and at such foreclosure sale the property shall be sold
subject to all remaining items of indebtedness; and Lender may again
foreclose, in the same manner, as often as there may be any sum past
due.
(e) Lender may withhold disbursement, at Lender's option, of
all or any portion of loan proceeds, for so long as any event,
circumstance or condition exists which would give rise to an Event of
Default.
5.04 Additional Provisions. Borrower expressly agrees, on behalf of
itself, its successors and assign and any future owner of the Mortgaged
Property, or any part thereof or interest therein, as follows:
(a) All remedies available to Lender with respect to this
Mortgage shall be cumulative and may be pursued concurrently or
successively. No delay by Lender in exercising any such remedy shall
operate as a waiver thereof or preclude the exercise thereof during the
continuance of that or any subsequent default.
(b) The obtaining of a judgment or decree on the Note, whether
in the State of Florida or elsewhere, shall not in any manner affect
the lien of this Mortgage upon the Mortgaged Property covered hereby,
any judgment or decree so obtained shall be secured to the same extent
as said Note is now secured.
(c) In the event of any foreclosure sale hereunder, all net
proceeds shall be available for application to the indebtedness hereby
secured whether or not such proceeds may exceed the value of the
Mortgaged Property for unpaid taxes, liens, assessments and any other
costs relating to the Mortgaged Property.
(d) The only limitation upon the foregoing agreements as to
the exercise of Lender's remedies is that there shall be but one full
and complete satisfaction of the indebtedness secured hereby.
(e) The Borrower shall duly, promptly and fully perform each
and every term and provision of any Construction or other Loan
Agreement which has been executed and delivered by the parties hereto
simultaneously with the execution and delivery hereof, the terms of
which Construction or other Loan Agreement are incorporated herein by
reference. The lien of this Mortgage secures the payment of all sums
payable to Lender and the performance of all covenants and agreements
of Borrower under the terms of any Construction or other Loan
Agreement.
5.05 Remedies Not Exclusive. Lender shall be entitled to enforce
payment and performance
52
of any indebtedness or obligations secured hereby and to exercise all rights and
powers under this Mortgage or the Note or under any other agreement or any laws
now or hereafter in force, notwithstanding some or all of the said indebtedness
and obligations secured hereby may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.
Neither the acceptance of this Mortgage nor its enforcement shall prejudice
or in any manner affect Lender's right to realize upon or enforce any other
security now or hereafter held by Lender, it being agreed that Lender shall
be entitled to enforce this Mortgage and any other security now or hereafter
held by Lender in such order and manner as Lender may in its absolute
discretion determine. No remedy herein conferred upon or reserved to Lender
is intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or not or hereafter existing at law or in equity or by
statute. Every power or remedy given to Lender or to which it may be otherwise
entitled may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by Lender and it may pursue
inconsistent remedies.
5.06 Arbitration. Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Mortgage and
other Loan Documents ("Disputes") between or among parties to this Mortgage,
shall be resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration, claims
brought as class actions, claims arising from Loan Documents executed in the
future, or claims arising out of or connected with the transaction reflected by
this Mortgage. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the city in which the office of
Lender first stated above is located. The expedited procedures set forth in Rule
51 et seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute. A
judgment upon the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or federal,
of the state where the hearing will be conducted or if such person is not
available to serve, the single arbitrator may be a licensed attorney.
Notwithstanding the foregoing, this arbitration does not apply to disputes under
or related to swap agreements.
5.07 Preservation and Limitation of Remedies. Notwithstanding the
preceding binding arbitration provisions, Lender and Borrower agree to preserve,
without diminution, certain remedies that any party hereto may employ or
exercise freely, independently or in connection with an arbitration proceeding
or after an arbitration action is brought. Lender and Borrower shall have the
right to proceed in any court of proper jurisdiction or by self-help to exercise
or prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power of
sale granted under Loan Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all
rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment,
53
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute. Lender and
Borrower agree that they shall not have a remedy of punitive or exemplary
damages against the other in any Dispute and hereby waive any right or claim
to punitive or exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
ARTICLE VI
MISCELLANEOUS
6.01 Corporate Existence. So long as the Mortgaged Property shall be
owned or held by a corporation, such corporation shall at all times maintain its
corporate existence and shall be fully authorized to do business in the State of
Florida and shall maintain in the State of Florida a duly authorized registered
agent for the service of process. Failure to comply with such obligations shall
be a default under this Mortgage. Within ninety (90) days after the expiration
of the time for filing its annual report and the payment of the appropriate
corporate taxes in the State of Florida, Borrower will furnish to Lender a
certificate of good standing or other evidence satisfactory to Lender to show
compliance with the provisions of this Section.
6.02 Statements by Borrower. Borrower, within three (3) days after
request in person or within ten (10) days after request by mail, will furnish to
Lender or any person, firm or corporation designated by Lender, a duly
acknowledged written statement setting forth the amount of the debt secured by
this Mortgage, and stating either that no offsets of defenses exist against such
debt, or, if such offsets or defenses are alleged to exist, full information
with respect to such alleged offsets and/or defenses.
6.03 Successors and Assigns. The provisions hereof shall be binding
upon and shall inure to the benefit of the Borrower, its successors and assigns,
including without limitation subsequent owners of the Premises or the leasehold
estate of the Premises or any part thereof; shall be binding upon and shall
inure to the benefit of Lender, its successors and assigns and any future holder
of the Note, and any successors or assigns of any future holder of the Note. In
the event the ownership of the Mortgaged Property or any leasehold estate that
may be covered by this Mortgage, becomes vested in a person other than Borrower,
Lender may, without notice to Borrower, deal with such successor or successors
in interest with reference to this instrument and the Note in the same manner as
with the Borrower, and may alter the interest rate and/or alter or extend the
terms of payments of the Note without notice to Borrower hereunder or under the
Note hereby secured or the lien or priority of this Mortgage with respect to any
part of the Mortgaged Property covered hereby, but nothing herein, contained
shall serve to relieve Borrower of any liability under the Note or this Mortgage
(or any other agreement executed in conjunction therewith) unless Lender shall
expressly release Borrower in writing. Borrower and any transferee or assignee
shall be jointly and severally liable for any documentation or intangible taxes
imposed as a result of any transfer or assumption.
6.04 Notice. All notices, demands and requests given by either party
hereto to the other party shall be in writing. All notices, demands and requests
by the Lender to the Borrower shall be deemed to
54
have been properly given if sent by United States registered or certified mail,
postage prepaid. All notices, demands and requests by the Borrower to the Lender
shall be deemed to have been properly given if sent by United States registered
or certified mail, postage prepaid, addressed to the Lender, or to such other
addresses the Lender may from time to time designate by written notice to the
Borrower given as herein required. Notices, demands and requests given in the
manner aforesaid shall be deemed sufficiently served or given for all purposes
hereunder at the time such notice, demand or request shall be deposited in any
post office or branch post office regularly maintained by the United States
Government.
The Borrower shall deliver to the Lender, promptly upon receipt of
same, copies of all notices, certificates, documents and instruments received by
it which materially affect any part of the Mortgaged Property covered hereby,
including, without limitation, notices from any lessee or sublessee claiming
that the Borrower is in default under any terms of any lease or sublease.
6.05 Modifications in Writing. This Mortgage may not be changed,
terminated or modified orally or in any other manner than by an instrument in
writing signed by the party against whom enforcement is sought.
6.06 Captions. The captions or headings at the beginning of each
Section hereof are for the convenience of
the parties and are not a part of this Mortgage.
6.07 Invalidity of Certain Provisions. 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 part of the Mortgaged Property, the unsecured portion
of the debt shall be completely paid prior to the payments of the secured
portion of the debt, and all payments made on the debt, whether voluntary or
otherwise, 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.
6.08 No Merger. If both the lessor's and lessee's estates under any
lease or any portion thereof which constitutes a part of the Mortgaged Property
shall at any time become vested in one owner, this Mortgage and the lien created
hereby shall not be destroyed or terminated by application of the doctrine of
merger and, in such event, Lender shall continue to have and enjoy all of the
rights and privileges of Lender as to the separate estates. In addition, upon
the foreclosure of the lien created by this Mortgage on the Mortgaged Property
pursuant to the provisions hereof, any leases or subleases then existing and
created by Borrower shall not be destroyed or terminated by application of the
law of merger or as a result of such foreclosure sale unless Lender shall so
elect. No act by or on behalf of Lender or any such purchaser shall constitute a
termination of any lease or sublease unless Lender or such purchaser shall give
written notice thereof to such tenant or subtenant.
6.09 Governing Law and Construction of Clauses. This Mortgage shall be
governed and construed by the laws of the State of Florida. No act of the Lender
shall be construed as an election to proceed under any one provision of the
Mortgage or of the applicable statutes of the State of Florida to the exclusion
of any other such provision, anything herein or otherwise to the contrary
notwithstanding.
6.10 Transfer. In the event all or any part of the property encumbered
by this Mortgage, or
55
any interest therein, is sold, conveyed, encumbered or otherwise transferred by
the Borrower, without Lender's prior written consent, or, if Borrower is a
partnership, any general partner of Borrower ceases to be a general partner, or
if Borrower is a corporation:
(i) any shareholder of Borrower owning directly
or indirectly 10% or more of the issued and
outstanding stock of Borrower as of the date
hereof transfers, during the term of this
Mortgage, any of such stock, or
(ii) any additional stock of Borrower is issued
after the date hereof.
then, and in the event any of the foregoing events occur, Lender may, in its
sole discretion: require a modification of the terms of the loan or loans
secured hereby (including without limitation those related to the rate of
interest and terms or schedule or repayment) in a manner satisfactory to Lender,
and may charge an "assumption fee" or similar fee in consideration of such
modification or approval; or accelerate the indebtedness secured hereby and
declare the then outstanding balance, with all accrued interest to be
immediately due and payable.
6.11 Books and Records. The Borrower agrees to keep accurate books,
records and accounts reflecting its financial condition, including, but not
limited to, the operation of the Mortgaged Property, in accordance with
generally accepted accounting principles, consistently applied. The Lender shall
have the right, from time to time and at all times during normal business hours,
to examine such books, records and accounts at the offices of Borrower or other
entity maintaining such books, records and accounts, and to make such copies of
extracts thereof as the Lender shall desire.
6.12 Financial Statements. The Borrower shall, until the entire
indebtedness secured hereby has been fully paid, annually furnish to Lender the
Borrower's financial statements, which must be acceptable to Lender in Lender's
sole discretion. Such statements shall include, but not be limited to, a profit
and loss statement and reconciliation of surplus statement of the Borrower for
such year, and a balance sheet as of the end of such year. All reports shall be
audited without scope limitations by independent certified public accountants of
recognized standing selected by Borrower and acceptable to the Lender. Such
reports shall be furnished to the Lender not later than ninety (90) days after
the close of the Borrower's fiscal year.
6.13 Other Indebtedness Secured. This Mortgage is also given as
security for any and all other sums, indebtedness, obligations and liabilities
of any and every kind now or hereafter during the term hereof owing and to
become due from Borrower to Lender, however created, incurred, evidenced,
acquired or arising, whether under the Note or this Mortgage, or any other
instrument, obligation, contract, agreement or dealing of any and every kind now
or hereafter existing or entered into between Borrower and Lender, or otherwise,
as amended, modified or supplemented from time to time, and whether direct,
indirect, primary, secondary, fixed or contingent, and any and all renewals,
modifications or extensions of any or all of the foregoing.
6.14 Cross Default. A default under any commitment and/or loan made by
any lending institution (including, without limitation, Lender) to Borrower
shall, at the option of Lender, be and constitute a default under all
commitments and/or loans made to Borrower by Lender (including, without
limitation, the Note and this Mortgage).
56
6.15 Broker's Commissions. The Borrower hereby agrees to defend Lender
and hold Lender harmless from and against all claims, losses, or liabilities,
including attorneys' fees, paralegal fees, and all related legal costs and
expenses related to or arising out of any claim for a brokerage fee, commission,
or finder's fee alleged to be due as a result of the issuance of the loan
evidenced by the Note and secured by this Mortgage.
6.16 Depository Accounts. For so long as the Note and the other
Loan Documents remain unpaid, the Borrower
shall maintain its depository accounts at the Lender's bank.
6.17 Funds Flow Coverage Ratio. Borrower shall, at all times, maintain
a Funds Flow Coverage Ratio of not less than 1.25 to 1.00. "Funds Flow Coverage"
shall mean the sum of net profit, depreciation and amortization minus all
dividends, withdrawals and non-cash income divided by the sum of all current
maturities of long term debt and capital lease obligations.
6.18 Parking Lot Construction. Borrower and Lender agree that a portion
of the loan proceeds, approximately SIXTY FIVE THOUSAND AND NO/100 DOLLARS
($65,000.00), is to be used by Borrower to construct a parking lot (the "Parking
Lot") at the Premises. Borrower agrees to complete the Parking Lot in a good and
workmanlike manner and in compliance with all applicable laws, rules and
regulations. Borrower shall so complete construction of the Parking Lot within
twelve (12) months of the date hereof. If Borrower does not complete the Parking
Lot within said twelve (12) months, Borrower shall, upon receipt of written
request from Lender, deposit $65,000.000 with Lender to be escrowed by Lender
for Borrower's account and to be thereafter applied toward completion of the
Parking Lot. In the event that Borrower does not escrow said $65,000.00 with
Lender within thirty (30) days of Borrower's receipt of Lender's request for
same, Borrower shall be in default hereunder.
6.19 WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES, THAT:
(A) NEITHER THE BORROWER NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
ARISING FROM OR BASED UPON THIS MORTGAGE, THE NOTE, ANY OTHER LOAN
AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURING OR RELATING TO THE
OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE
PARTIES THERETO;
(B) NEITHER THE BORROWER NOR LENDER WILL SEEK TO CONSOLIDATE
ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS;
(D) NEITHER THE BORROWER, NOR LENDER HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
57
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES; AND
(E) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO
ENTER INTO THIS TRANSACTION.
IN WITNESS WHEREOF, Borrower has hereunto set hand and seal all done as
of the day and year first hereinbefore written.
Signed, sealed and delivered
in the presence of: THE PUBLISHING COMPANY OF NORTH
AMERICA, INC., a Florida corporation
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- -----------------------------
Name: Xxxxx Xxxxxxxxx XXXXX X. XXXXXX, President
/s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx "BORROWER"
Borrower's Address: 000 Xxxxx Xxxxxxxxxx Xxxx Xxxx., Xxxx Xxxxx, Xxxxxxx 00000
58
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me on December 30,
1996 by XXXXX X. XXXXXX as President of THE PUBLISHING COMPANY OF NORTH AMERICA,
INC., a Florida corporation, on behalf of the corporation. He is personally
known to me or produced _____________________________________ as identification
and did not take an oath.
/s/ Xxxxx Xxxxxxxxx
--------------------------------
NOTARY SIGNATURE
Xxxxx X. Xxxxxxxxx
--------------------------------
PRINTED NOTARY SIGNATURE
NOTARY PUBLIC, STATE OF FLORIDA
Commission Number: CC480064
My Commission Expires: July 12, 1999
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