Exhibit10(o)
Florida - Seminole County
Loan No. C-331971
C-332344
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
--------------------------------------------------------------------------------
This instrument was prepared by Xxxxx X. Xxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxx., Xxxxxxxxx, XX 00000.
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
THIS MORTGAGE AND SECURITY, Made as of the 6th day of December, 2001
between XXXXX EQUITY, INC., a Florida corporation, whose address is 000 Xxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, herein called "Mortgagor," and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin
--------------------------------------------------------------------------------
RECORDER'S NOTE:
THIS INSTRUMENT AND OTHERS RELATED TO THE SAME TRANSACTION (THE "FILED
INSTRUMENTS") ARE BEING FILED IN XXXXX COUNTY, XXXX COUNTY, ORANGE COUNTY,
PINELLAS COUNTY AND SEMINOLE COUNTY, FLORIDA. ALL ADDITIONAL DOCUMENTARY STAMP
AND INTANGIBLE PERSONAL PROPERTY TAXES ARE BEING PAID IN XXXXX COUNTY, FLORIDA.
THE FILED INSTRUMENTS ADD ADDITIONAL FLORIDA REAL PROPERTY COLLATERAL FOR LOANS
IN THE ORIGINAL PRINCIPAL AMOUNT OF $235,000,000 (THE "LOAN") AND CONSOLIDATE,
AMEND AND RESTATE INSTRUMENTS UPON WHICH DOCUMENTARY STAMP AND NONRECURRING
INTANGIBLE TAX HAVE BEEN PREVIOUSLY PAID. EVIDENCE OF SUCH PAYMENT IS AFFIXED TO
THAT CERTAIN MASTER LIEN INSTRUMENT MORTGAGE AND SECURITY AGREEMENT PREVIOUSLY
RECORDED IN XXXXX COUNTY (I) ON OR ABOUT DECEMBER 19, 1996 IN OFFICIAL RECORDS
BOOK 8507, PAGE 1224 AND (II) ON OR ABOUT SEPTEMBER 2, 1999 IN OFFICIAL RECORDS
BOOK 9409, PAGE 1320 (THE "EXISTING INSTRUMENTS"). PURSUANT TO RULE
12(b)-4.053(32), F.A.C. AND SECTION 199.133, FLORIDA STATUTES, THE TAX BASE ON
WHICH DOCUMENTARY STAMP TAXES AND NONRECURRING PERSONAL PROPERTY TAXES WERE PAID
ON THE EXISTING INSTRUMENTS WAS $139,101,962.92. THE AMOUNT OF FLORIDA MORTGAGED
PROPERTY THAT WILL BE SUBJECT TO THE LIEN OF THE FILED INSTRUMENTS IS
$348,595,000. THE TOTAL AMOUNT OF MORTGAGED PROPERTY CURRENTLY SECURING THE LOAN
IS $446,177,000. THUS, THE PERCENTAGE OF FLORIDA MORTGAGED PROPERTY TO TOTAL
MORTGAGED PROPERTY IS 78.129%. THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN ON
THE DATE HEREOF IS $219,767,732.21. PURSUANT TO RULE 12(b)-4.053(32), F.A.C. AND
SECTION 199.133, FLORIDA STATUTES, THE TAX BASE USED TO CALCULATE THE ADDITIONAL
DOCUMENTARY STAMP TAXES AND NONRECURRING PERSONAL PROPERTY TAXES DUE IN
CONNECTION WITH THE FILED INSTRUMENTS IS $171,703,007.12. HOWEVER, PURSUANT TO
SECTION 201.09, FLORIDA STATUTES, THE NEW INSTRUMENTS ARE EXEMPT RENEWALS TO THE
EXTENT THE TAXES WERE PREVIOUSLY PAID ON THE EXISTING INSTRUMENTS. THEREFORE,
ADDITIONAL DOCUMENTARY STAMP TAXES AND NONRECURRING INTANGIBLE PERSONAL PROPERTY
TAXES ARE DUE SOLELY ON $32,601,044.20, THE DIFFERENCE BETWEEN THE TAX BASE USED
FOR CALCULATING SUCH TAXES ON THE EXISTING INSTRUMENTS AND THE NEW INSTRUMENTS.
THEREFORE, ADDITIONAL DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $114,103.65 HAVE
BEEN PAID AS NOTED XXXXXX AND ADDITIONAL NONRECURRING PERSONAL PROPERTY TAXES IN
THE AMOUNT OF $65,202.09 HAVE BEEN PAID AS NOTED HEREON.
corporation, whose address is 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
herein called "Mortgagee:"
GRANTING CLAUSE
WITNESSETH, that Xxxxxxxxx, in consideration of the indebtedness herein
mentioned, pledges the real property described on Exhibit "B" hereto (the
"Out-of State Property"), hereby grants, conveys, mortgages and warrants unto
Mortgagee, forever, with power of sale (to the extent allowed by applicable law)
and right of entry and possession, the following Florida properties
(collectively, but specifically excluding the Out-of-State Property, referred to
as the "Properties"):
A. The land described in Exhibit A attached hereto and incorporated
herein (the "Land") in Seminole County, Florida (the "County") and all
appurtenances thereto; and
B. All buildings and improvements now existing or hereafter erected
thereon, all waters and water rights, all engines, boilers, elevators
and machinery, all heating apparatus, electrical equipment,
air-conditioning equipment, water and gas fixtures, and all other
fixtures of every description belonging to Mortgagor which are or may
be placed or used upon the Land or attached to the buildings or
improvements, all of which, to the extent permitted by applicable law,
shall be deemed an
--------------------------------------------------------------------------------
accession to the freehold and a part of the realty as between the
parties hereto.
Except as expressly provided in the covenant hereof entitled "Due on Sale",
Xxxxxxxxx agrees not to sell, transfer, assign or remove anything described in B
above now or hereafter located on the Land without prior written consent from
Mortgagee unless (i) such action does not constitute a sale or removal of any
buildings or building improvements (except as provided in (ii)(y) below) or the
sale or transfer of waters or water rights and (ii) in the case of (x) personal
property, such personal property is (a) removed on a temporary basis for repairs
in the ordinary course of business; (b) not reasonably necessary or appropriate
to the efficient use or operation of the Project; (c) consumed or worn out or
has become obsolete and is promptly replaced by Mortgagor with personal property
of equal or greater value and/or utility, unless replacement is not reasonably
necessary or appropriate to the efficient use of the Project; or (d) actually
replaced by Mortgagor with similar personal property of equal or greater value
and/or utility, or (y) in the case of tenant improvements, the removal thereof
is in the ordinary course of leasing office space which is a part of the
Project.
Without limiting the foregoing grants, Mortgagor hereby pledges to Mortgagee,
and grants to Mortgagee a security interest in, all of Xxxxxxxxx's present and
hereafter acquired right, title and interest in and to the Properties and any
and all
C. cash and other funds now or at any time hereafter deposited by or for
Mortgagor on account of tax, special assessment, replacement or other
reserves required to be maintained pursuant to the Loan Documents (as
hereinafter defined) with Mortgagee or a third party, or otherwise
deposited with, or in the possession of, Mortgagee pursuant to the
Loan Documents; and
D. surveys, soils reports, environmental reports, guaranties, warranties,
architect's contracts, construction contracts, drawings and
specifications, applications, permits, surety bonds and other
contracts relating to the acquisition, design, development,
construction and operation of the Project to the extent assignable in
accordance with applicable agreements and law; and
E. present and future rights to condemnation awards, insurance proceeds
or other proceeds at any time payable to or received by Xxxxxxxxx on
account of the Project or any of the foregoing personal property.
All personal property hereinabove described is hereinafter referred to as the
"Personal Property".
SECURITY AGREEMENT CLAUSE
If any of the Properties are of a nature that a security interest therein can be
perfected under the Uniform Commercial Code, this instrument shall constitute a
security agreement and financing statement if permitted by applicable law and
Xxxxxxxxx agrees to join with Mortgagee in the execution of any financing
statements and to execute any other instruments that may be required for the
perfection or renewal of such security interest under the Uniform Commercial
Code.
Mortgagor shall cooperate with Mortgagee in perfecting its security interest in
any Property mortgaged hereby which consists of deposit accounts, investment
property, letter-of-credit rights and electronic chattel paper and, at
Mortgagee's request, Xxxxxxxxx shall execute documents or take such other
actions as are necessary to effectuate same.
SECURING CLAUSE
TO HAVE AND TO HOLD the same unto Mortgagor for the purpose of securing:
(a) Payment to the order of Mortgagee of the indebtedness evidenced by (i)
the Tranche A Promissory Note dated as of December 16, 1996 executed by
Xxxxxxxxx for the principal sum of ONE HUNDRED MILLION FIVE HUNDRED THOUSAND
DOLLARS, with final maturity no later than January 2, 2007 and with interest as
therein expressed and amended September 30, 1997, May 1, 1998, and which is
being amended concurrently herewith; (ii) the Tranche B Promissory Note dated as
of December 16, 1996 executed by Xxxxxxxxx for the principal sum of EIGHTY-NINE
MILLION FIVE HUNDRED THOUSAND DOLLARS, with final maturity no later than January
2, 2009 and with interest as therein expressed, which was amended August 11,
2000 and which is being amended concurrently herewith; (iii) the Tranche C
Promissory Note dated as of September 2, 1999 executed by Xxxxxxxxx for the
principal sum of FOURTEEN MILLION SEVEN HUNDRED THOUSAND DOLLARS, with final
maturity no later than January 1, 2007 and with interest as therein expressed
and which is being amended concurrently herewith; and (iv) the Tranche D
Promissory Note dated as of September 2, 1999 executed by Xxxxxxxxx for the
principal sum of THIRTY MILLION THREE HUNDRED THOUSAND DOLLARS, with final
maturity no later than January 1, 2009 and with interest as therein expressed
and which is being amended concurrently herewith (the Tranche A Promissory Note,
the Tranche B Promissory Note, the Tranche C Promissory Note, and the Tranche D
Promissory Note, as such instruments may be amended, restated, renewed and
extended, are hereinafter collectively referred to as the "Notes").
(b) Payment of all sums that may become due Mortgagee under the provisions
of, and the performance of each agreement of Mortgagor contained in, the Loan
Documents.
(c) Payment of any additional loan or advance made by Mortgagee to
Mortgagor made within 20 years from the date hereof, with interest thereon at
the rate agreed upon, which shall be equally secured with and have the same
priority as the original indebtedness and subject to all of the terms and
provisions of this mortgage, if such additional loan or advance is evidenced by
a promissory note of Mortgagor that is identified by a recital that it is
secured by this mortgage; provided that the aggregate amount of outstanding
principal at any one time shall not exceed an amount equal to $600,000,000.00.
It is understood and agreed that this future advance provision shall not be
construed to obligate the holder of the Note to make any such additional loans
or advances. Any additional note or notes delivered under this future advance
provision shall be included in "the Note" wherever it appears in the context of
this mortgage.
DEFINITIONS CLAUSE
------------------
"Absolute Assignment" means the Absolute Assignment of Leases and Rents dated of
even date herewith and recorded in the County in connection with the Notes.
"Environmental Indemnity Agreements" mean the Environmental Indemnity Agreement
dated December 15, 1996 and the Environmental Indemnity Agreement dated
September 2, 1999, as amended from time to time.
"Indebtedness" means all amounts due and payable under the Notes.
"Lien Instrument" means (i) Master Lien Instrument Mortgage and Security
Agreement dated December 19, 1996 securing the Notes; counterparts of which have
been recorded in (a) Official Records Book 8507, page 1224 of the public records
of Xxxxx County, Florida; (b) Official Records Book 1969, page 356 of the public
records of Xxxx County, Florida; (c) Official Records Book 5173, page 333 of the
public records of Orange County, Florida; (d) Official Records Book 9559, page
1088 of the public records of Pinellas County, Florida; (e) as Instrument Number
GG7415 in the public records of Shelby County, Tennessee and that certain Deed
of Trust and Security Agreement dated August 18, 1997 recorded as Instrument
Number GV2951 in the public records of Shelby County, Tennessee; (f) Greenville
County, South Carolina; (g) El Paso County, Texas; (h) Bexar County, Texas; and
(i) Xxxxxx County, Texas; and (ii) Master Lien Instrument Mortgage and Security
Agreement dated September 2, 1999 securing the Notes, counterparts of which have
been recorded (a) in Official Records Book 9409, page 1320 of the public records
of Xxxxx County, Florida; (b) in Official Records Book R2295, page 932 of the
public records of Xxxx County, Florida; (c) in Official Records Book 5838, page
71 of the public records of Orange County, Florida; (d) in Official Records book
10670, page 1 of the public records of Pinellas County, Florida; (e) as
Instrument Number JS4479 in the public records of Shelby County, Tennessee; (f)
in the public records of Greenville County, South Carolina; (g) El Paso County,
Texas; and (h) Xxxxxx County, Texas; and (iii) IDB Deed of Trust and Security
Agreement dated September 2, 1999 executed by The Industrial Development Board
of the City of Memphis and County
of Xxxxxx and Xxxxx Equity, Inc., securing Notes, recorded as Instrument Number
JS 4481 in the public records of Shelby County, Tennessee, and Leasehold Deed of
Trust and Security Agreement dated September 2, 1999 executed by Xxxxx Equity,
Inc., securing the Notes, recorded as Instrument Number JS 4480 in the public
records of Shelby County, Tennessee, as such instruments (i), (ii) and (iii) may
be consolidated, spread, amended, modified, extended or restated from time to
time, and (iv) this instrument and any other new lien instruments executed and
delivered as security for the Notes, as they may be consolidated, spread,
amended, modified, extended or restated from time to time.
"Loan Documents" means this instrument; the Other Lien Instruments; the Notes;
the Absolute Assignment; the Other Assignments of Leases; those certain
Certifications of Borrower dated December 16, 1996 and September 2, 1999, to the
extent not inconsistent with the other Loan Documents; the Notes A and B Loan
Commitment; the Notes C and D Loan Commitment; the Release and Substitution
Commitment; the Master Loan Agreement, and any other agreement entered into by
Mortgagor and delivered to Mortgagee in connection with the indebtedness
evidenced by the Notes, except for any separate Environmental Indemnity
agreement, as any of the foregoing may be amended from time to time.
"Master Loan Agreement" means the Master Loan Agreement of even date herewith.
"Notes A and B Loan Commitment" means that certain Application dated July 29,
1996 and acceptance letter dated September 10, 1996 executed by Mortgagee.
"Notes C and D Loan Commitment" means that certain Application dated February
26, 1999 and acceptance letter dated April 5, 1999 executed by Mortgagee.
"Other Assignments of Leases" means the Absolute Assignment(s) of Leases and
Rents recorded in each county, other than the County, where real property
securing the Notes is located.
"Other Lien Instruments" means the Lien Instruments recorded in each county,
other than the County, where real property securing the Notes is located.
"Project" means each of the buildings or unimproved sites described in Exhibit A
attached hereto.
"Release and Substitution Commitment" means that certain letter dated August 24,
2001 from Mortgagee to Mortgagee, accepted August 29, 2001 by Mortgagee.
"Valuation" means the amount mutually agreed to by Xxxxxxxxx and Mortgagee or,
if such parties do not so mutually agree, upon the following appraisal procedure
which shall be initiated by Mortgagor by giving written notice to Mortgagee
which shall include its
designation of an appraiser (the "First Appraiser"). Within twenty (20) days
after the service of the notice designating the First Appraiser, Mortgagee shall
give written notice to Mortgagor designating the second appraiser (the "Second
Appraiser"). If the Second Appraiser is not so designated within the time above
specified, the appointment of the Second Appraiser shall be made in the same
manner as is hereinafter provided for the appointment of the third appraiser
(the "Third Appraiser") in the event the First and Second Appraisers are unable
to agree upon the Third Appraiser. The First and Second Appraisers so designated
or appointed shall meet within ten (10) days after the Second Appraiser is
appointed, and if, within thirty (30) days after the Second Appraiser is
appointed, the First and Second Appraisers do not agree upon the Valuation, they
shall appoint a Third Appraiser who shall be a competent and impartial person.
In the event of their being unable to agree upon such appointment within ten
(10) days after the time aforesaid, the Third Appraiser shall be selected by
Mortgagee and Mortgagor if they can agree thereon within a further period of
fifteen (15) days. If the parties do not agree, or if for any reason the three
appraisers have not been chosen within fifteen (15) days after the expiration of
the fifteen (15) day period referred to in the immediately preceding sentence,
either the Mortgagee or Mortgagor, on behalf of both, may request such
appointment by the presiding Judge of the United States District Court for the
District in which the Project is located. In the event of the failure, refusal
or inability of any appraiser to act, a new appraiser shall be appointed in his
stead, which appointment shall be made in the same manner as herein before
provided for the appointment of such appraiser so failing, refusing or being
unable to act. Mortgagor shall pay the fees and expenses of all appraisers. Any
appraiser designated to serve in accordance with the provisions of this
Agreement shall be qualified to appraise the type of property being appraised in
the County and State in which the Project in question is located, shall be a
member of the Appraisal Institute (or any successor association or body of
comparable standing if such Institute is not then in existence) and shall have
been actively engaged in the appraisal of real estate in the County (set forth
above) for a period of not less than ten (10) years immediately preceding its
appointment. The Appraisers shall determine the Valuation, provided, however, no
value shall be attributed to good will. The Appraisers may employ such
independent counsel and accountants, unaffiliated with Mortgagee or Mortgagor as
any two of the three appraisers shall determine to be necessary or advisable to
assist them in carrying out their duties hereunder. The fees and expenses of
such counsel and accountants shall be borne by Xxxxxxxxx. A decision joined in
by two of the three appraisers shall be the decision of the appraisers. In the
event no two appraisers can agree, the decision of the Third Appraiser shall be
conclusive. After reaching a decision, the appraisers shall give written notice
thereof to Mortgagee and Mortgagor.
NOTHING CONTAINED HEREIN IS INTENDED TO CONSTITUTE AN ALLOCATION OF SECURITY FOR
PURPOSES OF MORTGAGEE'S REMEDIES; AND XXXXXXXXX AGREES THAT UNTIL THE RELEASE OF
SECURITY PURSUANT TO THE TERMS HEREOF, ALL OF THE PROPERTIES SECURE THE NOTES.
TO PROTECT THE SECURITY OF THIS MORTGAGE, XXXXXXXXX REPRESENTS, COVENANTS AND
AGREES AS SET FORTH BELOW:
Payment of Debt. Xxxxxxxxx agrees to pay the Indebtedness promptly and in full
compliance with the terms of the Loan Documents.
Ownership. Xxxxxxxxx represents that it owns the Properties and has good and
lawful right to convey the same and that the Properties are free and clear from
any and all encumbrances whatsoever, except as appears in the title evidence
accepted by Mortgagee. Xxxxxxxxx does hereby forever warrant and shall forever
defend the title and possession thereof against the lawful claims of any and all
persons whomsoever.
Maintenance of Property and Compliance with Laws. Mortgagor agrees to keep the
Projects and other improvements now or hereafter erected on the Land in good
condition and repair; not to commit or suffer any waste; to comply with all
laws, rules and regulations affecting the Properties with which the failure to
comply would have a material adverse effect on any Project; and to permit
Mortgagee to enter at all reasonable times and upon 24 hours prior notice for
the purpose of inspection and of conducting, in a reasonable and proper manner,
such tests to be conducted at Mortgagee's expense, except as otherwise provided
for in any separate environmental indemnity agreement as Mortgagee determines to
be necessary in order to monitor Mortgagor's compliance with applicable laws and
regulations regarding hazardous materials affecting the Properties.
Notwithstanding the foregoing, the Mortgagor is not required to restore or
repair buildings or improvements to the extent insurance proceeds or
condemnation awards are not made available by the Mortgagee to the Mortgagor for
such purpose but are instead used by Mortgagee to repay a portion of the balance
of the Notes. If Mortgagor is not required to restore or repair the damaged or
taken Project in accordance with the immediately preceding sentence, it shall
(i) for any partially destroyed or taken building or improvements secure and
enclose the remaining portion of the building or improvements so as to make such
remaining portions of such building or improvements reasonably usable to the
extent practical and (ii) for any building or improvements which are
substantially or totally destroyed, demolish such remaining building or
improvements and rough grade and landscape the applicable portion of the Land in
accordance with the requirements of applicable governmental authorities so that
the remaining portion of such destroyed building or improvements do not present
a safety hazard or detract from the overall scenic surroundings of the
applicable Project.
Insurance. Xxxxxxxxx agrees to keep the Properties insured for the protection of
Mortgagee in such manner and in such amounts and in such companies as Mortgagee
may from time to time approve, and to keep the policies or certificates
therefor, properly endorsed, on deposit with Mortgagee; that insurance loss
proceeds (less expenses of collection) shall, at Mortgagee's option, be applied
on the Indebtedness, whether due or not, or to the restoration of the
Properties, or be released to Mortgagor, but such
application or release shall not cure or waive any default under any of the Loan
Documents. If Mortgagee elects to apply the insurance loss proceeds on the
Indebtedness, no prepayment privilege fee shall be due on the amount of proceeds
so applied.
Notwithstanding the immediately preceding paragraph, Mortgagee agrees that if
the insurance loss proceeds are less than $500,000 (increased by 3% per year
from December 16, 1996) for any one casualty, such proceeds will be released to
Mortgagor for reasonable restoration of the Project (which, for purposes of this
provision includes rebuilding or replacement such that the Valuation of
applicable Project is not diminished) and the other provisions of this covenant
shall not be applicable, provided, however, insurance loss proceeds under this
paragraph shall not be released to Mortgagor if Mortgagee has previously
released insurance loss proceeds to Mortgagor and the applicable Project has not
been so restored.
Notwithstanding the two immediately preceding paragraphs, Mortgagee agrees that
if there then exists no Event of Default under any Loan Document and if the
insurance loss proceeds are $500,000 or more (increased by 3% per year from
December 16, 1996) but less than the unpaid principal balance of the Notes and
if the casualty occurs prior to the last three years of the term of the Notes,
then the insurance loss proceeds (less expenses of collection) shall be applied
to restoration of the Project to its condition prior to the casualty, subject to
satisfaction of the following conditions:
(a) There is no existing Event of Default at the time of casualty, and if
there shall occur any Event of Default after the date of the casualty,
Mortgagee shall have no further obligation to release insurance loss
proceeds hereunder.
(b) The casualty insurer has not denied liability for payment of insurance
loss proceeds as a result of any act, neglect, use or occupancy of the
Project by Mortgagor or any tenant of the Project.
(c) Mortgagee shall be satisfied that the amount necessary to complete the
restoration of the Project is available from all insurance loss
proceeds so held, together with supplemental funds which Xxxxxxxxx
commits to make available to such restoration and agrees to fund prior
to the disbursement of any insurance proceeds. Any remaining insurance
loss proceeds may, at the option of Mortgagee, be applied on the
Indebtedness, whether or not due, or be released to Mortgagor.
(d) If required by Mortgagee, Mortgagee shall be furnished a satisfactory
report addressed to Mortgagee from an environmental engineer or other
qualified professional satisfactory to Mortgagee to the effect that no
adverse environmental impact to the Project resulted from the casualty
or, if any
such impact has resulted, that the same has been corrected to
Mortgagee's satisfaction.
(e) Mortgagee shall release casualty insurance proceeds as restoration of
the Project progresses provided that Mortgagee is furnished
satisfactory evidence of the costs of restoration and if, at the time
of such release, there shall exist no Event of Default under the Loan
Documents. In addition, (i) the drawings and specifications for the
restoration shall be approved by Mortgagee in writing prior to
commencement of the restoration, and (ii) Mortgagee shall receive an
administration fee equal to 1% of the cost of restoration.
(f) Prior to each release of funds, Xxxxxxxxx shall obtain for the benefit
of Mortgagee an endorsement to Mortgagee's title insurance policy
insuring against any liens arising from the restoration.
(g) Mortgagor shall pay all costs and expenses incurred by Mortgagee,
including, but not limited to, outside legal fees, title insurance
costs, third-party disbursement fees, third-party engineering reports
and inspections deemed necessary by Mortgagee.
(h) All applicable reciprocal easement and operating agreements, if any,
shall remain in full force and effect between the parties thereto on
and after restoration of the Project.
(i) Mortgagee shall be satisfied that the operating income from the real
property securing the Notes which has not been destroyed plus loss of
rents insurance proceeds will be sufficient to provide annual debt
service coverage under all Indebtedness at least 1.3 times.
(j) All leases of more than 10,000 rentable square feet in effect at the
time of the casualty with tenants who have entered into Mortgagee's
form of Non-Disturbance and Attornment Agreement or similar agreement
shall remain in full force and each tenant thereunder shall be
obligated, or shall elect, to continue the lease term at full rental
(subject only to abatement, if any, during any period in which the
Project or a portion thereof shall not be used and occupied by such
tenant as a result of the casualty) or, in the alternative, a
replacement tenant(s) approved by Mortgagee have entered into an
approved lease(s) for such space.
If a casualty as described in the preceding paragraph damages more than one
Project and one or more of the damaged Projects satisfies the conditions of (a)
through (j) above (each a "Qualifying Project") and one or more of the damaged
Projects does not satisfy the conditions of (a) through (j) above (a "Non -
Qualifying Project"), insurance loss
proceeds allocated by Mortgagee shall be applied to restoration of each
Qualifying Project, as provided in the preceding paragraph. Such allocation of
insurance proceeds by Mortgagee shall be made in the same ratio that the
aggregate net rentable square feet of each Qualifying Project bears to the sum
of the aggregate net rentable square feet of each Qualifying Project plus the
aggregate net rentable square feet of each Non - Qualifying Project.
Condemnation. Mortgagor hereby assigns to Mortgagee (i) any award and any other
proceeds resulting from damage to, or the taking of, all or any portion of any
Project in connection with condemnation proceedings or the exercise of any power
of eminent domain and (ii) the proceeds from any sale or transfer in lieu
thereof (less expenses of collection), which shall be applied to restoration of
the affected Project, subject to the provisions stated above for application of
insurance loss proceeds and subject to the further condition that restoration or
replacement of the improvements on the Land to their functional and economic
utility prior to such damage or taking be possible within the Project in which
such taking occurred. Any portion of such award and proceeds not applied to
restoration shall, at Mortgagee's option, be applied on the Indebtedness,
whether due or not, or be released to Mortgagor, but such application or release
shall not cure or waive any default under any of the Loan Documents. If
Mortgagee elects to apply the condemnation award and proceeds on the
Indebtedness, no Prepayment Fee shall be due on the amount of award or proceeds
so applied.
Taxes and Special Assessments. Xxxxxxxxx agrees to pay before delinquency all
taxes and special assessments of any kind that have been or may be levied or
assessed against the Properties, this instrument, the Notes or the Indebtedness,
or upon the interest of Mortgagee in the Properties, this instrument, the Notes
or the Indebtedness, and to procure and deliver to Mortgagee a copy of the
official receipt of the proper officer showing timely payment of all such taxes
and assessments; provided, however, that Mortgagor shall not be required to pay
any such taxes or special assessments if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
and funds sufficient to satisfy the contested amount have been deposited in an
escrow satisfactory to Mortgagee or paid to the taxing authority.
Personal Property. With respect to the Personal Property, Mortgagor hereby
represents, warrants and covenants as follows:
(a) Except for the security interest granted hereby, Xxxxxxxxx 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 lien, security
interest, encumbrance or adverse claim thereon of any kind whatsoever subject,
however, to the rights of any tenants under their leases. Mortgagor shall notify
Mortgagee of, and shall indemnify and defend Mortgagee and the Personal Property
against, all claims and demands of all persons at any time claiming the Personal
Property or any part thereof or any interest therein.
(b) Except as otherwise provided above, Mortgagor shall not lease, sell,
convey or in any manner transfer the Personal Property without the prior consent
of Mortgagee.
(c) Xxxxxxxxx maintains a place of business at the address set forth in the
first paragraph of this instrument, and Xxxxxxxxx shall immediately notify
Mortgagee in writing of any change in its place of business.
(d) At the request of Mortgagee, Xxxxxxxxx shall join Mortgagee in
executing one or more financing statements and continuations and amendments
thereof pursuant to the Uniform Commercial Code of the jurisdiction in which the
Project is located in form satisfactory to Mortgagee, and Mortgagor shall pay
the cost of filing the same in all public offices wherever filing is deemed by
Mortgagee to be necessary or desirable.
Other Liens. Xxxxxxxxx agrees to keep the Properties free from all other
mortgage liens and from all liens prior to the lien created hereby. The creation
of any other mortgage lien, whether or not prior to the lien created hereby, the
creation of any prior lien on or the assignment or pledge by Mortgagor of its
revocable license to collect, use and enjoy rents and profits from the
Properties shall constitute a default under the terms of this instrument. The
term "mortgage" includes a mortgage, deed of trust, deed to secure debt or any
other security interest in the Project.
Leases. Mortgagor represents and warrants that there is no assignment or pledge
of any leases of, or rentals or income from, the Properties now in effect; and
covenants that, until the Indebtedness is fully paid, it (i) shall not make any
such assignment or pledge to anyone other than Mortgagee and (ii) shall not,
unless expressly permitted under another provision in this instrument, make any
assignment or pledge to anyone of its hereinafter described revocable license to
collect, use and enjoy the rents and profits.
In consideration of the Indebtedness, Xxxxxxxxx, pursuant to the Absolute
Assignment, has assigned to Mortgagee all of Mortgagor's right, title and
interest in said leases, including Xxxxxxxxx's right to collect, use and enjoy
the rents and profits therefrom. Mortgagee has, in the Absolute Assignment,
granted to Mortgagor a license to collect, use and enjoy said rents and profits.
Such license is revocable by Mortgagee pursuant to the terms of the Absolute
Assignment.
Costs, Fees and Expenses. Xxxxxxxxx agrees to pay all costs, fees and expenses
of this instrument; to appear in and defend any action or proceeding purporting
to affect the security hereof or the rights or powers of Mortgagee hereunder; to
pay all costs and expenses, including the cost of obtaining evidence of title
and reasonable attorney's fees, incurred in connection with any such action or
proceeding; and to pay any and all attorney's fees and expenses of collection
and enforcement in the event the Notes are placed in the hands of an attorney
for collection, enforcement of any of the Loan Documents is undertaken or suit
is brought thereon.
Failure of Mortgagor to Act. If Mortgagor shall fail to make any payment or do
any act as herein provided, Mortgagee may, without obligation so to do, without
notice to or demand upon Mortgagor and without releasing Mortgagor from any
obligation hereof: (i) make or do the same in such manner and to such extent as
Mortgagee may deem necessary to protect the security hereof, Mortgagee being
authorized to enter upon the Properties for such purpose; (ii) appear in and
defend any action or proceeding purporting to affect the security hereof, or the
rights or powers of Mortgagee; (iii) pay, purchase, contest or compromise any
encumbrance, charge or lien which in the judgment of Mortgagee is prior or
superior hereto; and (iv) in exercising any such powers, pay necessary expenses,
employ counsel and pay its reasonable fees. Sums so expended shall be payable by
Xxxxxxxxx immediately upon demand with interest from date of expenditure at the
Default Rate (as defined in the Notes). All sums so expended by Mortgagee and
the interest thereon until paid shall be included in the Indebtedness and
secured by the lien of this instrument.
Event of Default. Any default by Mortgagor in making any required payment of the
Indebtedness or any default in any provision, covenant, agreement or warranty
contained in any of the Loan Documents shall, except as provided in the two
immediately succeeding paragraphs, constitute an "Event of Default".
Notice of Default. A default in any payment required in the Notes or any other
Loan Document (a "Monetary Default") shall not constitute an Event of Default
unless Mortgagee shall have given a written notice of such Monetary Default to
Mortgagor and Mortgagor shall not have cured such Monetary Default by payment of
all amounts in default (including payment of interest at the Default Rate, as
defined in the Notes, from the date of default to the date of cure on amounts
owed to Mortgagee) within five (5) business days after the date on which
Mortgagee shall have given such notice to Mortgagor.
Any other default under the Notes or under any other Loan Document (a
"Non-Monetary Default") shall not constitute an Event of Default unless
Mortgagee shall have given a written notice of such Non-Monetary Default to
Mortgagor and Mortgagor shall not have cured such Non-Monetary Default within
thirty (30) days after the date on which Mortgagee shall have given such notice
of default to Mortgagor (or, if the Non-Monetary Default is not curable within
such 30-day period, Mortgagor shall not have diligently undertaken and continued
to pursue the curing of such Non-Monetary Default and deposited an amount
sufficient to cure such Non-Monetary Default in an escrow account satisfactory
to Mortgagee).
For purposes of this provision, written notice may be delivered personally or
sent by certified mail or reputable courier service with charges prepaid, by
telecopier or by such other method whereby the receipt thereof may be confirmed.
Notice shall be deemed given on the date received. Any notice which is rejected,
the acceptance of which is refused or which is incapable of being delivered for
any reason shall be deemed received as of the date of attempted delivery.
In no event shall the notice and cure period provisions recited above constitute
a grace period for the purposes of commencing interest at the Default Rate (as
defined in the Notes).
Appointment of Receiver. Upon commencement of any proceeding to enforce any
right under this instrument, including foreclosure thereof, Mortgagee (without
limitation or restriction by any present or future law, without regard to the
solvency or insolvency at that time of any party liable for the payment of the
Indebtedness, without regard to the then value of any Project, whether or not
there exists a threat of imminent harm, waste or loss to any Project and whether
or not the same shall then be occupied by the owner of the equity of redemption
as a homestead) shall have the absolute right to the appointment of a receiver
of the Properties and of the revenues, rents, profits and other income
therefrom, and said receiver shall have (in addition to such other powers as the
court making such appointment may confer) full power to collect all such income
and, after paying all necessary expenses of such receivership and of operation,
maintenance and repair of said Properties, to apply the balance to the payment
of any of the Indebtedness then due.
Foreclosure. Upon the occurrence of an Event of Default, the entire unpaid
Indebtedness shall, at the option of Mortgagee, become immediately due and
payable for all purposes without any notice or demand, except as required by
law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO
EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in
addition to exercising any rights it may have with respect to the Personal
Property under the Uniform Commercial Code of the jurisdiction in which the
Project is located, institute proceedings in any court of competent jurisdiction
to foreclose this instrument as a mortgage, or to enforce any of the covenants
hereof, or Mortgagee may, either personally or by agent or attorney in fact,
enter upon and take possession of the Properties and may manage, rent or lease
the Properties or any portion thereof upon such terms as Mortgagee may deem
expedient, and collect, receive and receipt for all rentals and other income
therefrom and apply the sums so received as hereinafter provided in case of
sale. Mortgagee is hereby further authorized and empowered, as agent or attorney
in fact, either after or without such entry, to sell and dispose of the
Properties en masse or in separate parcels (as Mortgagee may think best), and
all the right, title and interest of Mortgagor therein, by advertisement or in
any manner provided by the laws of the jurisdiction in which the Properties is
located, (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH
SALE), and to issue, execute and deliver a deed of conveyance, all as then may
be provided by law; and Mortgagee shall, out of the proceeds or avails of such
sale, after first paying and retaining all fees, charges, costs of advertising
the Properties and of making said sale, and attorneys' fees as herein provided,
apply such proceeds to the Indebtedness, including all sums advanced or expended
by Mortgagee or the legal holder of the Indebtedness, with interest from date of
advance or expenditure at the Default Rate (as defined in the Notes), rendering
the excess, if any, as provided by law; such sale or sales and said deed or
deeds so made shall be a perpetual bar, both in law and equity, against
Xxxxxxxxx, the heirs,
successors and assigns of Mortgagor, and all other persons claiming the
Properties aforesaid, or any part thereof, by, from, through or under Mortgagor.
The legal holder of the Indebtedness may purchase the Properties or any part
thereof, and it shall not be obligatory upon any purchaser at any such sale to
see to the application of the purchase money.
Due on Sale. The present ownership and management of the Properties is a
material consideration to Mortgagee in making the loan secured by this
instrument, and Xxxxxxxxx shall not convey or enter into any contract to convey
(land contract/installment sales contract/contract for deed) title to all or any
part of the Properties (other than office leases located in one of the
Projects), except as provided in the MASTER LOAN AGREEMENT. Any violation of
this provision shall constitute a default under the terms of this instrument.
Notwithstanding the foregoing, a default will not occur if Mortgagor mergers
with, or is consolidated with, another entity provided the successor to
Mortgagor shall have entered into and agreed to be bound by all of Mortgagor's
obligations under the Loan Documents and the Environmental Indemnity Agreements.
Financial Statements. Xxxxxxxxx agrees to furnish to Mortgagee, at Mortgagor's
expense and within ninety (90) days after the close of each fiscal year
("Financial Statements Due Date"), annual audited financial statements on the
Mortgagor in form and substance currently required to be filed on Form 10-K for
annual reports pursuant to section 13 or 15(d) of the Securities Exchange Act of
1934 for which no other form is prescribed (the "Company Statements"). The
Company Statements shall be prepared in accordance with generally accepted
accounting principles and shall be audited by an independent certified public
accountant acceptable to Mortgagee (Mortgagee hereby approves the firms commonly
known, or formerly known, as "Big Six").
In addition to the Company Statements, Xxxxxxxxx agrees to furnish to Mortgagee
annual financial statements on each Project in the form attached to the Notes C
and D Loan Commitment as Exhibit D for each Project and all Projects in the
aggregate including
(a) a statement of operations with a detailed line item breakdown of all
operating expenses, capitalized costs associated with tenant
improvements, lease commissions and capital improvements.
(b) a current rent roll in the form attached to the Notes C and D Loan
Commitment as Exhibit E (the "Rent Roll);
(c) if requested by Mortgagee, a report detailing cost reimbursements to
tenants, options and other major variations from standard form leases
(collectively referred to herein as the "Project Statements").
The Project Statements shall be certified as to the accuracy and completeness of
the applicable information and be signed by either a Chief Executive Officer,
Chief Financial Officer or Chief Accounting Officer of Mortgagor (the
"Certification").
In addition, Mortgagor shall furnish to Mortgagee 10K and 10Q reports at the
time they are submitted to the Securities and Exchange Commission. At the time
the 10K and 10Q reports are submitted to Mortgagee, Mortgagor shall also forward
its computation of the calculations required under the "Financial Covenants" set
forth in the Master Loan Agreement along with a Certification verifying
compliance with such covenants. Mortgagor acknowledges that Mortgagee requires
the Company Statements and Project Statements (collectively, the "Financials"),
Rent Roll and Certification in order to record accurately the value of the
Projects for financial and regulatory reporting.
If Mortgagor does not furnish, or cause to be furnished, the Financials, Rent
Roll and Certification to Mortgagee by the Financial Statements Due Date, within
30 days after Mortgagee shall have given written notice to Mortgagor that the
Financials, Rent Roll and/or Certification have not been received as required,
(x) interest on the unpaid principal balance of the Indebtedness shall
as of the Financial Statements Due Date, accrue and become payable at a
rate equal to the sum of the Interest Rate (as defined in each of the
Notes) plus one percent (1%) per annum (the "Increased Rate"); and
(y) Mortgagee may elect to obtain an independent appraisal and audit of
the Project at Xxxxxxxxx's expense, and Xxxxxxxxx agrees that it will,
upon request, promptly make Xxxxxxxxx's books and records regarding the
Project available to Mortgagee and the person(s) performing the
appraisal and audit (which obligation Xxxxxxxxx agrees can be
specifically enforced by Mortgagee).
The amount of the payments due under the Notes during the time in which the
Increased Rate shall be in effect shall be changed to an amount which is
sufficient to amortize the then unpaid principal balance at the Increased Rate
during the then remaining portion of a period of 25 years commencing with the
Amortization Period Commencement Date (as defined in the Notes). Interest shall
continue to accrue and be due and payable monthly at the Increased Rate until
the Financials, Rent Roll and Certification shall be furnished to Mortgagee as
required. Commencing on the date on which the Financials, Rent Roll and
Certification are received by Mortgagee, interest on the unpaid principal
balance shall again accrue at the Interest Rate and the payments due during the
remainder of the term of the Notes shall be changed to an amount which is
sufficient to amortize the then unpaid principal balance at the Interest Rate
during the then remaining portion of a period of 25 years commencing with the
Amortization Period Commencement Date. Notwithstanding the foregoing, Mortgagee
shall have the right to conduct an independent audit at its own expense at any
time.
Notwithstanding the above, the Financial Statements Due Date may be extended up
to sixty (60) days if Mortgagor receives an extension from the Securities and
Exchange Commission for filing of its annual report of Form 10K.
Property Substitution. Xxxxxxxxx has the right to substitute properties as
collateral for the Indebtedness, subject to the terms of the MASTER LOAN
AGREEMENT.
Full and Partial Releases. Xxxxxxxxx has the right to request release of some or
all of the Projects from the lien hereof pursuant to the terms of the MASTER
LOAN AGREEMENT.
Additional Collateral/Cross-Default. Each of the Notes is cross-defaulted with
the others, and Xxxxxxxxx has granted to Mortgagee a lien on properties
described in the Other Lien Instruments in addition to those described herein as
additional security for the Notes, all as further described in the Master Loan
Agreement.
Deposits by Mortgagor. To assure the timely payment of real estate taxes and
special assessments, Mortgagee shall have the option upon the occurrence of an
Event of Default to require Mortgagor to deposit funds with Mortgagee, in
monthly or other periodic installments in amounts estimated by Mortgagee from
time to time sufficient to pay real estate taxes and special assessments as they
become due. If at any time the funds so held by Mortgagee, or in such other
account, shall be insufficient to pay any of said expenses, Mortgagor shall,
upon receipt of notice thereof, immediately deposit such additional funds as may
be necessary to remove the deficiency. All funds so deposited shall be
irrevocably appropriated to Mortgagee to be applied to the payment of such real
estate taxes and special assessments and, at the option of Mortgagee after an
Event of Default, the Indebtedness then due, by acceleration or otherwise.
Notwithstanding the above, upon the occurrence of an Event of Default, Mortgagee
shall, so long as no delinquency would occur, cooperate with Mortgagor to attain
payment discounts available to Mortgagor and permit Mortgagor to contest the
amount of such taxes.
Modification of Terms. Without affecting the liability of Mortgagor or any other
person (except any person expressly released in writing) for payment of the
Indebtedness or for performance of any obligation contained herein and without
affecting the rights of Mortgagee with respect to any security not expressly
released in writing, Mortgagee may, at any time and from time to time, either
before or after the maturity of the Notes, without notice or consent: (i)
release any person liable for payment of all or any part of the Indebtedness or
for performance of any obligation; (ii) make any agreement extending the time or
otherwise altering the terms of payment of all or any part of the Indebtedness,
or modifying or waiving any obligation, or subordinating, modifying or otherwise
dealing with the lien or charge hereof; (iii) exercise or refrain from
exercising or waive any right Mortgagee may have; (iv) accept additional
security of any kind; (v) release or otherwise
deal with any property, real or personal, securing the Indebtedness, including
all or any part of the Properties.
Exercise of Options. Whenever, by the terms of this instrument, of the Notes or
any of the other Loan Documents, Mortgagee is given any option, such option may
be exercised when the right accrues, or at any time thereafter, and no
acceptance by Mortgagee of payment of Indebtedness in default shall constitute a
waiver of any default then existing and continuing or thereafter occurring.
Nature and Succession of Agreements. Each of the provisions, covenants and
agreements contained herein shall inure to the benefit of, and be binding on,
the heirs, executors, administrators, successors, grantees, lessees and assigns
of the parties hereto, respectively, and the term "Mortgagee" shall include the
owner and holder of the Notes.
Legal Enforceability. No provision of this instrument, the Notes or any other
Loan Documents shall require the payment of interest or other obligation in
excess of the maximum permitted by law. If any such excess payment is provided
for in any Loan Documents or shall be adjudicated to be so provided, the
provisions of this paragraph shall govern and Mortgagor shall not be obligated
to pay the amount of such interest or other obligation to the extent that it is
in excess of the amount permitted by law.
Limitation of Liability. Notwithstanding any provision contained herein to the
contrary, the personal liability of Mortgagor shall be limited as provided in
the Notes.
Captions. The captions contained herein are for convenience and reference only
and in no way define, limit or describe the scope or intent of, or in any way
affect this instrument.
Governing Law. The laws of the State named in the upper left-hand corner of the
cover page of this instrument shall govern and control the interpretation of
this lien instrument and the rights, obligations, duties and liabilities of the
parties hereto.
(remainder of page intentionally left blank)
IN WITNESS WHEREOF, this instrument has been executed by the Mortgagor and
Mortgagee as of the day and year first above written.
XXXXX EQUITY, INC., a Florida
Signed in presence of: corporation
s/Xxxxxx X. Xxxxxxx By: s/Xxxxxx Xxxxxxxxx
------------------------------------ ---------------------------
Xxxxxx X. Xxxxxxx Vice President
--------------------------- -------------------------
Name Typed or Printed 000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
s/Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------
Name Typed or Printed
(corporate seal)
(signatures continued on next page)
S-1
(signatures continued from previous page)
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, a
Wisconsin corporation
By: Northwestern Investment
Management Company,
LLC, a Delaware limited
liability company, its
wholly-owned affiliate
and authorized
representative
Signed in presence of:
s/Xxxxx X. Xxxxxxxxx By: s/Xxxxxx X. Xxxxx
------------------------------------ ------------------
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx,
Managing Director
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
s/Xxxxx X. Xxxxxx Attest: s/Xxxxxx X. Xxxxx
--------------------------- ------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxx,
--------------------------- Assistant Secretary
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(corporate seal)
S-2
STATE OF FLORIDA )
)ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 6th day of December,
2001, by Xxxxxx Xxxxxxxxx, as Vice President for XXXXX EQUITY, INC., a Florida
corporation, on behalf of the corporation. They are personally known to me or
have produced as identification.
NOTARY PUBLIC:
Signature s/Xxxxx X. Xxxx
----------------------
Xxxxx X. Xxxx
--------------------------------
Name (typed or printed)
State of Florida at Large
My Commission Expires: October 30, 2003
My Commission # CC 850933
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this 3rd day of December,
2001, by Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx, as Managing Director and Assistant
Secretary for Northwestern Investment Management Company, LLC, on behalf of THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation. They are
personally known to me or have produced a Wisconsin Drivers License as
identification.
NOTARY PUBLIC:
Signature: s/Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx
-----------------------------
Name (typed or printed)
State of Wisconsin
My Commission Expires: May 9, 2004
S-3
EXHIBIT "A"
(Description of Property)
(All new property in Seminole County, Florida )
Ex-A-1
