Rec 123.00
Doc 11,812.50
Int 6,750.00
Total 18,685.50
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (the "Mortgage"), made as of the 14th day of August,
1995, between PLASMA-THERM, INC., a Florida corporation (the
"Mortgagor"), as mortgagor and debtor, whose principal place
of business is 0000 Xxxxxxxxxxxxx Xxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000, and NATIONSBANK OF FLORIDA, N.A., a national
banking association (the "Mortgagee"), as mortgagee and
secured party, whose address is 400 North Ashley Drive (FL1-
010-07-01), Xxxxx, Xxxxxxx 00000.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 Definitions. As used in this Mortgage and in
the exhibits attached hereto, the following terms shall have
the following meanings herein specified, such definition to be
applicable equally to the singular and plural forms of such
terms:
(a) Commitment: The commitment letter from
Mortgagee to Mortgagor dated May 1, 1995, as amended by letter
dated July 25, 1995.
(b) Default Rate: The Default Rate as defined
in the Note.
(c) Environmental Claim: Any investigative,
enforcement, cleanup, removal, containment, remedial or other
private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable
Environmental Requirement, against Mortgagor or against or
with respect to the Mortgaged Property or any condition, use
or activity on the Mortgaged Property (including any such
action against Mortgagee), and any claim at any time
threatened or made by any person against Mortgagor or against
or with respect to the Mortgaged Property or any condition,
use or activity on the Mortgaged Property (including any such
claim against Mortgagee), relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from or
in any way arising in connection with any Hazardous Material
or any Environmental Requirement.
(d) Environmental Law: Any federal, state or
local law, statute, ordinance, code, rule, regulation,
license, authorization, decision, order, injunction, decree,
or rule of common law, and any judicial or agency
interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the environment
(including but not limited to ground or air or water or noise
pollution or contamination, and underground or above ground
tanks) and shall include without limitation, the Solid Waste
Disposal Act, 42 U.S.C. section 6901 et seq.; the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. section 9601 et seq.
("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"); the Hazardous Materials
This instrument prepared by and returned to:
XXXX XX XXXXXX
Powell, Carney, Xxxxx, Xxxxx & Xxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xx. Xxxxxxxxxx, XX 00000-0000
Transportation Act, 49 U.S.C. section 1801 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. section 1251 et
seq.; the Clean Air Act, 42 U.S.C. section 7401 et seq.; the
Toxic Substances Control Act, 15 U.S.C. section 2601 et seq.;
the Safe Drinking Water Act, 42 U.S.C. section 300f et seq.;
the Florida Resource Recovery and Management Act, the Water
Quality Assurance Act of 1983, The Florida Resource
Conversation and Recovery Act, the Florida Air and Water
Pollution Control Act, The Florida Safe Drinking Water Act,
The Pollution Spill Prevention and Control Act and any other
local, state or federal environmental statutes, and all rules,
regulations, orders and decree now or hereafter promulgated
under any of the foregoing, as any of the foregoing now exist
or may be changed or amended or come into effect in the
future.
(e) Environmental Requirement: Any
Environmental Law, agreement or restriction (including but not
limited to any condition or requirement imposed by any
insurance or surety company), as the same now exists or may be
changed or amended or come into effect in the future, which
pertains to health, safety, any Hazardous Material, or the
environment, including but not limited to ground or air or
water or noise pollution or contamination, and underground or
above ground tanks.
(f) Events of Default: Those events described
in Article VII hereof.
(g) Fixtures: All property and equipment now
owned or hereafter acquired by Mortgagor and now or hereafter
located under, on, or above the Land, whether or not
permanently affixed, which, to the fullest extent permitted by
applicable law in effect from time to time, shall be deemed
fixtures and a part of the Land.
(h) Future Advances: Any loan of money from
Mortgagee to Mortgagor made within twenty (20) years from the
date hereof. The total amount of such loan or loans may
decrease or increase from time to time, but the total unpaid
aggregate balance secured by this Mortgage at any one time
shall not exceed $6,750,000.00, plus interest thereon, and any
disbursements made for the payment of the Impositions (whether
taxes, levies or otherwise), insurance, or other liens on the
Mortgaged Property, with interest on such disbursements. The
Mortgagee has no obligation, whatsoever, to make a Future
Advance.
(i) Governmental Authority: Any (domestic or
foreign) federal, state, county, municipal or other
governmental department, entity, authority, commission, board,
bureau, court, agency or any instrumentality of any of them.
(j) Governmental Requirement: Any law,
enactment, statute, code, ordinance, order, rule, regulation,
judgment, decree, writ, injunction, franchise, permit,
certificate, license, authorization, or other direction or
requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered, or issued
applicable to Mortgagee, Mortgagor or the Mortgaged Property,
including, without limitation, any Environmental Law.
(k) Hazardous Material: Any substance,
whether solid, liquid or gaseous which is listed, defined or
regulated as a "hazardous substance," "hazardous waste," or
"solid waste," or pesticide or otherwise classified as
hazardous or toxic, in or pursuant to any Environmental
Requirement; or which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation,
explosive or radioactive material, or motor fuel or other
petroleum hydrocarbons; which causes or poses a threat to
This instrument prepared by and returned to:
XXXX XX XXXXXX
Powell, Carney, Xxxxx, Xxxxx & Xxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xx. Xxxxxxxxxx, XX 00000-0000 2
cause a contamination or nuisance on the Mortgaged Property or
any adjacent property or a hazard to the environment or to the
health or safety of persons on the Mortgaged Property.
(l) Impositions: All (i) real estate and
personal property taxes and other taxes and assessments,
public or private; utility rates and charges including those
for water and sewer; all other governmental and non-
governmental charges and any interest or costs or penalties
with respect to any of the foregoing; and charges for any
public improvement, easement or agreement maintained for the
benefit of or involving the Mortgaged Property, general and
special, ordinary and extraordinary, foreseen and unforeseen,
of any kind and nature whatsoever that at any time prior to or
after the execution of this Mortgage may be assessed, levied
or imposed upon the Mortgaged Property or the Rent or income
received therefrom, or any use or occupancy thereof,
(ii) other taxes, assessments, fees and governmental and non-
governmental charges levied, imposed or assessed upon or
against Mortgagor or any of its properties and (iii) taxes
levied or assessed upon this Mortgage, the Note, and the other
Obligations, or any of them.
(m) Improvements: All buildings, structures,
appurtenances and improvements, including all additions
thereto and replacements and extensions thereof, now
constructed or hereafter to be constructed under, on or above
the Land, which term includes any part thereof.
(n) Junior Mortgage: Any mortgage permitted
by Mortgagee which now or hereafter encumbers all or any
portion of the Mortgaged Property and which is junior or
subordinate to the lien of this Mortgage, which term shall
collectively refer to all such mortgages and the note or notes
secured thereby.
(o) Land: The real property described in
Exhibit "A" attached hereto and made a part hereof, together
with all rights, privileges, tenements, hereditaments, rights-
of-way, easements, appendages, projections, appurtenances,
water rights including riparian and littoral rights, streets,
ways, alleys, and strips and gores of land now or hereafter in
any way belonging, adjoining, crossing or pertaining to the
Land.
(p) Leases: Any and all leases, subleases,
licenses, concessions, or grants of other possessory
interests, together with the security therefor, now or
hereafter in force, oral or written, covering or affecting the
Mortgaged Property or any part thereof.
(q) Loan: $3,375,000.00 as evidenced by the
Note.
(r) Loan Agreement: The construction loan
agreement of even date herewith between Mortgagor and
Mortgagee and that certain Amended and Restated Revolving
Credit Agreement between Mortgagee and Mortgagor dated January
19, 1995, as amended on even date herewith.
(s) Loan Documents: Those items required by
the Commitment and any other document or instrument executed,
submitted, or to be submitted by Mortgagor or others in
connection with the Loan, including but not limited to the:
i) Note, ii) Mortgage, iii) Loan Agreement, iv) financing
statements, v) Environmental Indemnity Agreement, and vi) any
other document or instrument executed by Mortgagor in
connection with the Loan.
(t) Mortgaged Property: The Land,
Improvements, Fixtures, Leases, Rents and Personal Property
together with:
(i) all judgments, awards of damages
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and settlements hereafter made resulting from condemnation
proceedings or the taking of the Mortgaged Property or any
part thereof under the power of eminent domain, or by
agreement in lieu thereof, or for any damage thereto caused by
any governmental action (whether by such taking or otherwise),
such as without limitation, any award for change of grade of
streets;
(ii) all judgments, awards and
settlements hereafter made, and all insurance proceeds
hereafter paid for any damage to the Mortgaged Property, and
all unearned insurance premiums on any insurance policies
maintained by the Mortgagor pursuant to this Mortgage;
(iii) all awards and refunds hereafter
made with respect to any Imposition; and
(iv) the estate, right, title,
interest, privilege, claim or demand whatsoever of Mortgagor,
now or hereafter, either at law or in equity, in and to the
Mortgaged Property.
The term Mortgaged Property includes any part of the foregoing
property described as Mortgaged Property, and all proceeds,
products, replacements, improvements, betterments, extensions,
additions, substitutions, renewals, accessories, and
appurtenances thereto and thereof.
(u) Mortgagee: NationsBank of Florida, N.A.,
a national banking association, its successors and assigns.
(v) Mortgagor: Plasma-Therm, Inc., a Florida
corporation.
(w) Note: The promissory note dated of even
date herewith from Mortgagor to Mortgagee, in the amount of
$3,375,000.00, by this reference made a part hereof to the
same extent as though set out in full herein, and any other
note given to Mortgagee evidencing a Future Advance as any of
said notes may from time to time hereafter be modified,
amended, extended or renewed. As used herein the term "Note"
shall refer to all of said notes collectively, as well as to
each of said notes individually, as the context may require.
(x) Obligations:
(i) Any and all of the indebtedness,
liabilities, covenants, promises, agreements, terms,
conditions, and other obligations of every nature whatsoever,
whether joint or several, direct or indirect, absolute or
contingent, liquidated or unliquidated, of Mortgagor to
Mortgagee, evidenced by, secured by, under and as set forth in
the Note, this Mortgage, the Guaranty or the other Loan
Documents;
(ii) Any and all other indebtedness,
liabilities and obligations of every nature whatsoever
(whether or not otherwise secured or to be secured) of
Mortgagor (whether as maker, endorser, surety, guarantor or
otherwise) to Mortgagee or any of Mortgagee's affiliates,
whether now existing or hereafter created or arising or now
owned or howsoever hereafter acquired by Mortgagee or any of
the Mortgagee's affiliates, whether such indebtedness,
liabilities and obligations are or will be joint or several,
direct or indirect, absolute or contingent, liquidated or
unliquidated, matured or unmatured, including, but not limited
to, any letter of credit issued by Mortgagee for the account
of Mortgagor; together with all expenses, attorneys' fees,
paralegals' fees and legal assistants' fees incurred by
Mortgagee in the preparation, execution, perfection or
enforcement of any document relating to any of the foregoing;
and
(iii) Any and all Future Advances.
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(y) Partnership: Any general or limited
partnership, joint venture, or other form of partnership,
howsoever designated.
(bb) Permitted Title Exceptions: Those
matters, if any, described in Schedule B to the title
insurance policy insuring Mortgagee's interest in this
Mortgage.
(cc) Person: Any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government, or agency or
political subdivision thereof, or any other form of entity.
(dd) Personal Property: All of the following
property of Mortgagor whether now owned or existing, or
hereafter acquired or arising, whether located in, on,
pertaining to, used or intended to be used in connection with
or resulting or created from the ownership, development,
management, or operation of the Land:
(i) all Improvements (to the extent
same are not deemed to be real property) and landscaping;
(ii) all Fixtures (to the extent same
are not deemed to be real property) and goods to become
Fixtures;
(iii) all machinery, equipment,
furniture, furnishings, building supplies and materials,
appliances, business machines, tools, and all warranties and
guaranties for any of the foregoing, but specifically
excluding all goods (including, without limitation, equipment
and machinery) held for sale or lease or to be furnished under
contracts of service, or raw materials, work-in-process or
materials used or consumed in a business;
(iv) all general intangibles relating
to the construction, maintenance or operation of the
Improvements (but not related to the Mortgagor's business
conducted in the Improvements), including without limitation,
corporate or other business records and books, computer
records whether on tape, disc or otherwise stored, blueprints,
surveys, architectural or engineering drawings, plans and
specifications, licenses, governmental approvals, franchises,
permits, payment and performance bonds, tax refund claims, and
agreements with utility companies, together with any deposits,
prepaid fees and charges paid thereon;
(v) all Leases and Rents (to the
extent same are not deemed to be real property);
(vi) all judgments, awards of damages
and settlements from any condemnation or eminent domain
proceedings regarding the Land, the Improvements or any of the
Mortgaged Property;
(vii) all insurance policies required
by this Mortgage, the unearned premiums therefor and all loss
proceeds thereof;
(viii) all construction contracts,
architectural contracts, service contracts, engineering
contracts, contracts for purchase and sale of any of the
Mortgaged Property, equipment leases, monies in escrow
accounts, reservation agreements, prepaid expenses, deposits
and down payments with respect to the sale or rental of any of
the Mortgaged Property, options and agreements with respect to
additional real property for use or development of the
Mortgaged Property (including any rights of first refusal to
purchase lands adjacent to the Mortgaged Property), end-loan
commitments, abstracts of title, all brochures, advertising
materials, condominium documents and prospectuses; and
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(ix) all proceeds, products,
replacements, additions, better-ments, extensions,
improvements, substitutions, renewals and accessions of any
and all of the foregoing.
Provided, however, that trade secrets and other proprietary
information owned by Mortgagor, such as trademarks, copyrights
and patents shall not be included within the definition of
Personal Property, and shall not be encumbered by the lien of
this Mortgage.
(ee) Rents: All rents, revenues, rental income
and profits from leases, franchises, concessions or licenses
of or on any part of the Mortgaged Property.
1.2 Rules of Construction. The use of any gender
shall include all other genders. The singular shall include
the plural and the plural shall include the singular. The
word "or" is not exclusive and the use of the word "and" may
be conjunctive or disjunctive in the sole and absolute
discretion of Mortgagee. The captions of Articles, Sections
and Subsections of this Mortgage are for convenient reference
only, and shall not affect the construction or interpretation
of any of the terms and provisions set forth herein.
1.3 Security Agreement. This Mortgage constitutes
a "Security Agreement" within the meaning of and shall create
a security interest under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida, with respect
to the Fixtures, Leases, Rents and Personal Property. A
carbon, photographic or other reproduction of this Mortgage or
of any financing statement shall be sufficient as a financing
statement. The debtor's principal place of business and the
secured party's address is set forth in the introduction to
this Mortgage.
ARTICLE II
GRANT
2.1 Grant. For good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
and to secure the payment, observance, performance and
discharge of the Obligations, Mortgagor does by these presents
give, transfer, grant, bargain, sell, alien, remise, release,
assign, mortgage, hypothecate, deposit, pledge, set over,
confirm, convey and warrant unto Mortgagee all estate, right,
title and interest of Mortgagor in and to the Mortgaged
Property, whether now owned or held or hereafter acquired by
Mortgagor, subject, however, to the Permitted Title
Exceptions, to have and to hold the Mortgaged Property unto
Mortgagee, its successors and assigns forever.
2.2 Condition of Grant. Subject to the provisions
of this Mortgage, the condition of these presents is such that
if Mortgagor shall pay, observe, perform and discharge the
Obligations, or cause same to be paid, observed, performed and
discharged in strict accordance with the terms thereof, then
this Mortgage and the estates, interests, rights and
assignments granted hereby shall be null and void, but
otherwise shall remain in full force and effect.
2.3 Subrogation. The Mortgagee is hereby
subrogated to the claims and liens of all parties whose claims
or liens are fully or partially discharged or paid with the
proceeds of the indebtedness secured by this Mortgage
notwithstanding that such claims or liens may have been
canceled and satisfied of record.
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ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
3.1 Assignment. The Mortgagor does hereby
absolutely and unconditionally assign and transfer to
Mortgagee all of Mortgagor's estate, right, title and interest
in and to the Leases and Rents, to have and to hold the Leases
and Rents unto Mortgagee, its successors and assigns forever.
From time to time, upon request of Mortgagee, Mortgagor shall
give further evidence of this assignment to Mortgagee by
executing and delivering to Mortgagee specific assignments of
the Leases and Rents, in form and content approved by
Mortgagee. All such specific assignments shall be of the same
dignity and priority as this Mortgage. From time to time,
upon request of Mortgagee, Mortgagor shall also execute and
deliver to Mortgagee any notification to tenants or other
document reasonably required by Mortgagee.
3.2 Payment of Rents to Mortgagor, as Trustee,
Until Default. So long as no Event of Default has occurred,
Mortgagor may, as trustee for the use and benefit of
Mortgagee, collect, receive and accept the Rents as they
become due and payable (but in no event for more than two (2)
months in advance); provided, however, that if the Rents
exceed the payments due under the Note, the Mortgagor may use
such excess, first, for the operation and benefit of the
Mortgaged Property and, second, for the general benefit of the
Mortgagor. Upon the occurrence of an Event of Default
Mortgagee may, at its option, remove the Mortgagor as trustee
for the collection of the Rents and appoint any other person
including, but not limited to, itself as a substitute trustee
to collect, receive, accept and use all such Rents in payment
of the Obligations, in such order as Mortgagee shall elect in
its sole and absolute discretion, whether or not Mortgagee
takes possession of the Mortgaged Property. Mortgagor hereby
directs each of the respective tenants under the Leases, and
any rental agent, to pay to Mortgagee all such Rents, as may
now be due or shall hereafter become due, upon demand for
payment thereof by Mortgagee without any obligation on the
part of any such tenant or rental agent to determine whether
or not an Event of Default has in fact occurred. Upon an
Event of Default, the permission hereby given to Mortgagor to
collect, receive and accept such Rents as trustee shall
terminate; however such permission shall be reinstated upon a
cure of the Event of Default with Mortgagee's specific written
consent. Further, upon the event of a Default, Mortgagor
shall immediately turn over to Mortgagee all Rents in the
actual or constructive possession of Mortgagor, its
affiliates, contractors, or its agents, together with an
accounting thereof. Exercise of Mortgagee's rights under
this Section, and the application of any such Rents to the
Obligations, shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant hereto,
but shall be cumulative and in addition to all other rights
and remedies of Mortgagee.
3.3 Performance Under Leases. Mortgagor covenants
that it shall, at its sole cost and expense, (a) duly and
punctually perform and discharge, or cause to be performed and
discharged, all of the obligations and undertakings of
Mortgagor or its agents under the Leases, (b) use its best
efforts to enforce or secure, or cause to be enforced or
secured, the performance of each and every obligation and
undertaking of the respective tenants under the Leases,
(c) promptly notify Mortgagee if Mortgagor receives any notice
from a tenant claiming that Mortgagor is in default under a
Lease and (d) appear in and defend any action or proceeding
arising under or in any manner connected with the Leases.
3.4 Leases In Good Standing. All Leases are in
full force and effect, and there are no defaults thereunder or
any defenses or offsets thereto on the part of any tenant.
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3.5 Provisions of Leases and Approval of Tenants.
All Leases shall be inferior and subordinate to the lien of
this Mortgage and the terms of each Lease shall so expressly
provide. Mortgagor covenants that all Leases hereafter
entered into by Mortgagor shall be in form and substance
satisfactory to Mortgagee. Further, the Mortgagee
specifically reserves the right to approve all proposed
tenants, and any assignee or sublessee of any existing tenant.
3.6 Termination or Modification. Mortgagor
covenants that it shall not, without the prior express written
consent of Mortgagee, enter into a Lease, or materially
modify, terminate, or consent to the cancellation or surrender
of any Lease, or permit any tenant under any Lease to assign
or sublet its rights thereunder.
3.7 No Obligation of Mortgagee. This Assignment
shall not be deemed or construed to constitute Mortgagee as a
mortgagee in possession of the Mortgaged Property nor shall it
obligate Mortgagee to take any action or to incur expenses or
perform or discharge any obligation, duty or liability of
Mortgagor under any Lease.
3.8 Cumulative Remedies. Each and every right,
remedy and power granted to Mortgagee by this Article shall be
cumulative and in addition to every other right, remedy and
power given by the Loan Documents and now or hereafter
existing in equity, at law, or by virtue of statute or
otherwise. The failure of Mortgagee to avail itself of any of
its rights, remedies and powers shall not be construed or
deemed to be a waiver thereof.
3.9 Notification of Mortgagee's Rights. Mortgagee
shall have the right, but not the obligation, at any time and
from time to time, to notify any tenant under any Lease of the
rights of Mortgagee as provided in this Article III and
Mortgagor, upon demand from Mortgagee, shall confirm to such
tenant the existence of such rights.
3.10 Attorney-in-Fact. To further effectuate
Mortgagee's rights under this Article III, Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said
attorney or attorneys in the name of Mortgagor, but at the
option of said attorney-in-fact, to (i) collect and receive
the Rents and to issue receipts therefor, (ii) to make, enter
into, extend, modify, amend, terminate, consent to the
cancellation or surrender of any Lease, or permit any tenant
to assign or sublet its rights thereunder, (iii) to execute,
acknowledge and deliver any and all instruments and documents
that Mortgagee may deem necessary or proper to implement its
rights as provided in this Article III, and (iv) to perform
and discharge any and all obligations and undertakings of
Mortgagor under any Lease.
3.11 Other Assignments. Mortgagor shall not further
assign or transfer the Leases or Rents except in favor of
Mortgagee as provided in this Article III, and shall not
create or permit to be created or to remain, any mortgage,
pledge, lien, encumbrance, claim, or charge on the Leases or
Rents. Any transaction prohibited under this Section shall be
null and void.
3.12 Section 697.07 of the Florida Statutes. The
assignments of Leases and Rents contained in this Mortgage are
intended to provide Mortgagee with all the rights and remedies
of mortgagees pursuant to Section 697.07 of the Florida
Statutes (hereinafter "Section 697.07"), as may be amended
from time to time. However, in no event shall this reference
diminish, alter, impair, or affect any other rights and
remedies of Mortgagee, including but not limited to, the
appointment of a receiver as provided in Article VIII, Section
8.1(e) herein, nor shall any provision in this Section 3.15
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diminish, alter, impair or affect any rights or powers of the
receiver in law or equity or as set forth in Article VIII,
Section 8.1(e) herein. In addition, this assignment shall be
fully operative without regard to value of the Mortgaged
Property or without regard to the adequacy of the Mortgaged
Property to serve as security for the obligations owed by
Mortgagor to Mortgagee, and shall be in addition to any rights
arising under Section 697.07. Further, except for the notices
required hereunder, if any, Mortgagor waives any notice of
default or demand for turnover of rents by Mortgagee, together
with any rights under Section 697.07 to apply to a court to
deposit the Rents into the registry of the court or such other
depository as the court may designate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Mortgagor
hereby represents and warrants to Mortgagee that:
(a) Organization, Corporate Power, Partnership
Power, Etc. Mortgagor (i) if a corporation, (A) is duly
organized, validly existing and in good standing under the
laws of the state or country of its incorporation, (B) has the
corporate power and authority to own its properties and to
carry on its business as now being conducted, and all of its
issued and outstanding stock is fully paid and nonassessable,
(C) is qualified to do business in the State of Florida,
(D) is in compliance with all Governmental Requirements, and
(E) has not amended or modified its articles or certificate of
incorporation or its bylaws except as previously disclosed in
writing to Mortgagee prior to the execution hereof.
(b) Validity of Loan Documents. (i) The
execution, delivery and performance by Mortgagor of the Loan
Documents, and the borrowing evidenced by the Note, (A) are
within the powers and purposes of Mortgagor, (B) have been
duly authorized by all requisite action of Mortgagor, (C) do
not require the approval of any Governmental Authority, and
(D) will not violate any Governmental Requirement, the
articles of incorporation and bylaws or the partnership
agreement of Mortgagor or any indenture, agreement or other
instrument to which Mortgagor is a party or by which it or any
of its property is bound, or be in conflict with, result in a
breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other
instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any
of its property or assets, except as contemplated by the
provisions of the Loan Documents; and (ii) the Loan Documents,
constitute the legal, valid and binding obligations of
Mortgagor and other obligors named therein, if any, in
accordance with their respective terms.
(c) Financial Statements. All balance sheets,
statements of profit and loss, and other financial data that
have been given to Mortgagee with respect to the Mortgagor and
the Guarantor, (i) are complete and correct in all material
respects, (ii) accurately present the financial condition of
said parties as of the dates, and the results of its or their
operations, for the periods for which the same have been
furnished, and (iii) have been prepared in accordance with
generally accepted accounting principles consistently followed
throughout the periods covered thereby; all balance sheets
disclose all known liabilities, direct and contingent, as of
their respective dates; and there has been no change in the
condition of the Mortgagor or the Guarantor, financial or
otherwise, since the date of the most recent financial
statements given to Mortgagee with respect to said parties,
other than changes in the ordinary course of business, none of
which changes has been materially adverse.
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(d) Other Agreements. Mortgagor is not a
party to any agreement or instrument materially and adversely
affecting it or its present or proposed businesses, properties
or assets, operation or condition, financial or otherwise, and
Mortgagor is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or
conditions set forth in any agreement or instrument to which
it is a party.
(e) Other Information. All other information,
including reports, financial statements, certificates, papers,
data and otherwise, given and to be given to Mortgagee with
respect (i) to Mortgagor or any Guarantor, (ii) to the Loan
and (iii) to others obligated under the terms of the Loan
Documents, are true, accurate and correct in all material
respects and complete.
(f) Title. Mortgagor is indefeasibly seized
of and has and will have good and marketable fee simple title
to the Land and Improvements free and clear of any and all
mortgages, liens, encumbrances, claims, charges, equities,
covenants, conditions, restrictions, easements, rights-of-way
and all other matters affecting the Land and Improvements,
whether or not of record, except for the Permitted Title
Exceptions. Mortgagor has and will have good, absolute and
marketable title to the Fixtures and Personal Property all
free and clear of any and all liens, charges, encumbrances,
security interests and adverse claims whatsoever, except those
in favor of Mortgagee. Mortgagor will preserve its title to
the Mortgaged Property and will forever warrant and defend the
same to Mortgagee and will forever warrant and defend the
validity and priority of the lien of this Mortgage against the
claims of all persons and parties whomsoever.
(g) No Violations. No Governmental
Requirement (including, but not limited to, 21 U.S.C.
sectionsection 811 and 881, and 18 U.S.C. section1961), and no
covenant, condition, restriction, easement or similar matter
affecting the Land or Improvements has been violated, and
Mortgagor has not received any notice of violation from any
Governmental Authority or any other person with respect to any
of the foregoing matters.
(h) Taxes. Mortgagor has filed all federal,
state, county and municipal income tax returns required to
have been filed by it, and has paid all taxes that have become
due pursuant to such returns, pursuant to any assessments
received by it or pursuant to law, and Mortgagor does not know
of any basis for additional assessment with respect to such
taxes or additional taxes. The Land is (or will be prior to
the issuance of the first tax xxxx coming due after the date
of this Mortgage) assessed separately from all other adjacent
land for the purposes of real estate taxes and there is no
intended public improvements which may involve any charge
being levied or assessed, or which may result in the creation
of any lien upon the Mortgaged Property.
(i) Litigation. There are no judgments
outstanding against Mortgagor and there is no action, suit,
proceeding, or investigation now pending (or to the best of
Mortgagor's knowledge after diligent inquiry, threatened)
against, involving or affecting Mortgagor or the Mortgaged
Property, or any part thereof, at law, in equity or before any
Governmental Authority that if adversely determined as to the
Mortgaged Property or as to Mortgagor would result in a
material adverse change in the business or financial condition
of the Mortgagor or Mortgagor's operation and ownership of the
Mortgaged Property, nor is there any basis for such action,
suit, proceeding or investigation.
(j) Utilities. There is available to the Land
and Improvements through public or private easements or
rights-of-way abutting or crossing the Land (which would inure
to the benefit of Mortgagee in case of enforcement of this
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Mortgage) a water supply and a sanitary sewer service approved
by all health and other authorities having jurisdiction, and
electric, gas (if applicable) and telephone service, all of
sufficient capacity to serve the needs of the Land and
Improvements according to their intended purpose.
(k) Condition of Mortgaged Property. The
Mortgaged Property or any part thereof, now existing, is not
damaged or injured as a result of any fire, explosion,
accident, flood or other casualty. The Improvements, if any,
as of the date of this Mortgage, are free of any defects in
material, structure and construction and do not violate any
Governmental Requirements. There is no existing, proposed or
contemplated plan to modify or realign any street or highway
or any existing, proposed or contemplated eminent domain
proceeding that would result in the taking of all or any part
of the Mortgaged Property or that would adversely affect the
use or the operation of the Mortgaged Property.
(l) Zoning. The Land is zoned so as to permit
the Land and Improvements to be used for their intended
purpose.
(m) No Default. No default or Event of
Default exists under any of the Loan Documents; and no event
has occurred and is continuing which, with notice or the lapse
of time, or both, would constitute a default under any
provision thereof.
(n) Fictitious Name Statute. Mortgagor, if
applicable, has duly complied with all of the requirements of
the Florida Fictitious Name Statute.
(o) Junior Mortgage. No Junior Mortgage, if
any, existing as of the date hereof requires the consent of
any of the holders thereof to the Loan, the execution and
delivery of the Loan Documents, or to any transaction
contemplated under the Loan Documents. All Junior Mortgages
existing as of the date hereof, if any, are in good standing,
all principal, interest and other payments due thereunder have
been paid in accordance with the terms thereof, there is no
default thereunder and no event has occurred which with due
notice or the lapse of time, or both, would constitute a
default thereunder.
(p) Environmental Contamination/Hazardous
Material. Mortgagor and the Mortgaged Property are in full
compliance with all Environmental Laws, and there are no
civil, criminal or administrative actions, suits, demands,
claims, hearings, notices or demand letters, notices of
violation, investigations, or proceedings pending or
threatened against the Mortgagor or the Mortgaged Property
relating in any way to any Environmental Law or any agreement,
plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved under any
Environmental Law. There have never been nor are there
currently any Hazardous Material located on, in, or under the
Mortgaged Property or used in connection therewith, and
neither Mortgagor nor any other person has ever used the
Mortgaged Property for the manufacture, processing,
distribution, use, transport, handling, treatment, storage,
disposal, emission, discharge or release of any Hazardous
Material. No notice or advice has been received by Mortgagor
of any condition or state of facts that would be contributing
to a claim of pollution or any other damage to the environment
by reason of the conduct of any business on the Mortgaged
Property or operation of the Mortgaged Property, whether past
or present.
(q) Facilities For Handicapped: The
Improvements comply with all legal requirements regarding
access and facilities for handicapped or disabled persons,
including, without limitation, and to the extent applicable,
Part V of the Florida Building Construction Standards Act
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entitled "Accessibility by Handicapped Persons", Chapter 553,
Fla Stat.; the Federal Architectural Barriers Act of 1988 (42
U.S.C. section4151, et.seq.), The Fair Housing Amendment Act
of 1988 (42 U.S.C. section3601, et.seq), The Americans With
Disabilities Act of 1990 (42 U.S.C. section12101 et. seq.),
and The Rehabilitation Act of 1973 (29 U.S.C. section794).
(r) Representations and Warranties in Other
Loan Documents. All of the representations and warranties
contained in the other Loan Documents are true and correct.
Notwithstanding anything contained herein to the contrary, as
to the representations and warranties contained in subsections
(f) through and including (q), all of such representations and
warranties are made only to the best knowledge of the
Mortgagor. For purposes of this Mortgage, the phrase "the
best knowledge of Mortgagor" shall be deemed to mean the
actual knowledge or present recollection of the following
current officers of Mortgagor: Xxxxxx X. Xxxxxxxxx, Xxxxx X.
XxXxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxx.
4.2 Reliance on Representations. The Mortgagor
acknowledges that the Mortgagee has relied upon the
Mortgagor's representations, has made no independent
investigation of the truth thereof, is not charged with any
knowledge contrary thereto that may be received by an
examination of the public records in Tallahassee, Florida and
wherein the Land is located, or that may have been received by
any officer, director, agent, employee or shareholder of
Mortgagee.
ARTICLE V
AFFIRMATIVE COVENANTS
5.1 Payment and Performance. Mortgagor shall
promptly pay and punctually perform, or shall cause to be
promptly paid and punctually performed, all of the Obligations
as and when due and payable.
5.2 Existence. Mortgagor shall preserve and keep
in full force and effect its existence, rights, franchises,
trade names and qualification to transact business in the
State of Florida.
5.3 Compliance With Laws. Mortgagor shall promptly
and faithfully comply with, conform to and obey all
Governmental Requirements and the rules and regulations now
existing or hereafter adopted by every Board of Fire
Underwriters having jurisdiction, or similar body exercising
similar functions, that may be applicable to Mortgagor or to
the Mortgaged Property or to the use or manner of use,
occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of the Mortgaged Property, whether or
not such Governmental Requirement or rule or regulation shall
necessitate structural changes or improvements or interfere
with the use or enjoyment of the Mortgaged Property.
5.4 Impositions.
(a) Mortgagor shall pay all Impositions on the
Mortgaged Property and all taxes levied or assessed upon this
Mortgage, the Note and the Obligations, or any of them. In
the event of the passage, after the date of this Mortgage, of
any law (i) making it illegal for the Mortgagor to pay the
whole or any part of the Impositions, or charges or liens
herein required to be paid by Mortgagor, or (ii) rendering the
payment by Mortgagor of any and all taxes levied or assessed
upon this Mortgage, the Note, or the Obligations or the
interest in the Mortgaged Property represented by this
Mortgage unlawful, or (iii) rendering the covenants for the
payment of the matters set forth in Subparts (i) and (ii) of
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this Subsection by Mortgagor legally inoperative, the
Mortgagor shall pay, upon demand, the entire unpaid
Obligations notwithstanding anything in the Note, this
Mortgage, or the other Loan Documents to the contrary.
(b) Mortgagor shall pay all ad valorem taxes
on the Mortgaged Property on or before December 1st of each
year in which they become a lien on the Mortgaged Property,
and shall deliver to Mortgagee tax receipts evidencing said
payment on or before December 31 of each year. Mortgagor
shall also deliver to Mortgagee receipts evidencing the
payment of all other Impositions within thirty (30) days after
same become due and payable or before same shall become
delinquent, whichever is sooner.
5.5 Insurance. Until the Obligations shall have
been fully discharged by Mortgagor, Mortgagor shall cause to
be maintained, at Mortgagor's cost and expense, the following
insurance coverages in full force and effect at all times
throughout the term of the Loan:
(a) Hazard Insurance. Mortgagor shall keep
the Improvements and all Personal Property which now or
hereafter may constitute part of the Mortgaged Property
insured at all times against loss or damage by fire and other
hazards included within the term "all risk" or "extended
coverage" and against such other hazards as Mortgagee may
require in the full insurable value thereof (or such lesser
amount as Mortgagee may authorize in writing), with an insurer
satisfactory to Mortgagee. Such policy shall include a
Replacement Cost and Agreed Amount/Stipulated Value
Endorsement and a Sinkhole Endorsement, if deemed necessary by
Mortgagee.
(b) Liability Insurance. Mortgagor will
obtain and keep in full force a "Broad Form Comprehensive
General Liability" insurance coverage for both Mortgagor and
any contractor performing services to the Mortgaged Property
in the minimum coverage amount of One Million Dollars
($1,000,000.00) per occurrence and combined single limit
("CSL") of Five Million Dollars ($5,000,000.00) if the Loan
amount is less than $10,000,000.00 or CSL of Ten Million
Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00
or greater.
(c) Flood Insurance. If at any time the Land
or any portion thereof is located in a "Flood Hazard Area"
pursuant to the Flood Disaster Protection Act of 1973 or any
successor or supplemental act thereto, flood insurance in the
maximum amount available or such other amount as Mortgagee may
reasonably request.
(d) Builder's Risk Insurance. An "All risk",
non-reporting, completed value builder's risk insurance
policy, which policy shall include Agreed Amount, Replacement
Cost, Permit to Occupy and Vandalism/Malicious Mischief
Endorsements.
(e) Other Insurance. Boiler and machinery
insurance, worker's compensation insurance, wind damage
insurance, and other insurance coverages as Mortgagee may
reasonably require.
The policy or policies of insurance shall (i) be
from companies and in coverage amounts acceptable to
Mortgagee, (ii) contain a standard mortgagee clause in favor
of Mortgagee naming Mortgagee as a mortgagee and including a
lender's loss payee clause in such policy, as applicable (iii)
not be terminable or modified without thirty (30) days' prior
written notice to Mortgagee, and (iv) be evidenced by evidence
certificates or other certificates deemed acceptable to
Mortgagee, to be held by Mortgagee until the Obligations shall
have been fully paid and discharged. Mortgagor shall furnish
Mortgagee satisfactory evidence of payment of all premiums
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required and similar evidence of renewal or replacement
coverage not later than thirty (30) days prior to the date any
coverage will expire.
Each insurance policy or endorsement required herein
shall be written by an insurer having a rating not less than
"A-XII" Best's Rating according to the most current edition of
Best's Key Rating Guide as determined at the time of the
initial policy and at all times during the term hereof. All
policies shall indicate that notices related to such insurance
shall be sent to Mortgagee at:
000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01)
Xxxxx, Xxxxxxx 00000
Attn: Loan Administration Section,
Real Estate Banking Group
5.6 Restoration Following Casualty.
(a) If all or any part of the Mortgaged
Property shall be damaged or destroyed by a casualty,
Mortgagor shall immediately give written notice thereof to
Mortgagee and the appropriate insurer, and Mortgagee is
authorized and empowered (but not obligated or required) to
make proof of loss and to settle, adjust or compromise any
claims for loss, damage or destruction under any policies of
insurance required under this Mortgage. All proceeds of
insurance, as provided in Section 5.5, shall be paid to
Mortgagee and shall be applied first to the payment of all
costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
obtaining such proceeds, and second, at the option of
Mortgagee, either to the payment of the Obligations whether or
not due, in such order as Mortgagee may elect, or to the
restoration, repair, or replacement of the Mortgaged Property.
If Mortgagee elects to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property,
such proceeds shall be disbursed to Mortgagor as work
progresses pursuant to a construction and disbursing agreement
in form and content satisfactory to Mortgagee in its sole
discretion, and Mortgagor shall promptly and diligently,
regardless of whether there shall be sufficient insurance
proceeds therefor, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior
to the casualty. During the period of restoration and repair,
Mortgagor shall continue to duly and promptly pay, perform,
observe and comply with all of the Obligations. The election
by Mortgagee to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property
shall not affect the lien of this Mortgage or affect or reduce
the Obligations.
(b) If all or any of the Mortgaged Property
shall be damaged or destroyed by a casualty not covered by
insurance under Section 5.5, or, if so covered, the insurer
fails or refuses to pay the claim within thirty (30) days
following the filing thereof, Mortgagor shall immediately give
written notice thereof to Mortgagee, and Mortgagor shall
promptly and diligently, at Mortgagor's sole cost and expense,
restore, repair and rebuild the Mortgaged Property to the
equivalent of its condition immediately prior to the casualty.
During the period of restoration and repair, Mortgagor shall
continue to duly and promptly pay, perform, observe and comply
with all of the Obligations.
(c) If any work required to be performed under
Subsections (a) or (b) above, or both, shall involve an
estimated expenditure of more than $25,000.00, no such work
shall be undertaken until plans and specifications therefor,
prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
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5.7 Condemnation.
(a) Mortgagor shall immediately notify
Mortgagee upon obtaining any knowledge of the institution of
any proceedings for the condemnation of the Mortgaged Property
or any part thereof.
(b) If all or any part of the Mortgaged
Property shall be damaged or taken through condemnation (which
term when used in this Mortgage shall include any damage or
taking by any Governmental Authority and any transfer by
private sale in lieu thereof, either temporarily or
permanently), Mortgagee at its option may declare all of the
unpaid Obligations to be immediately due and payable, and upon
ten (10) days written notice from Mortgagee to Mortgagor all
such Obligations shall immediately become due and payable as
fully and to the same effect as if such date were the date
originally specified for the final payment or maturity
thereof. The Mortgagee shall be entitled to all compensation,
awards and other payments resulting from such condemnation and
is hereby authorized, at its option, to commence, appear in
and prosecute, in its own or in Mortgagor's name, any action
or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such
compensation, awards, damages, claims, rights of action and
proceeds and the right thereto are hereby assigned by
Mortgagor to Mortgagee and shall, be applied first to the
payment of all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee in connection with any action or proceeding under
this Section 5.7, and second, at the option of Mortgagee,
either to the payment of the Obligations whether or not due,
in such order as Mortgagee may elect, or to the restoration,
repair or alteration of the Mortgaged Property. If Mortgagee
elects to apply the condemnation awards to the restoration,
repair or alteration of the Mortgaged Property, such awards
shall be disbursed to Mortgagor as work progresses pursuant to
a construction and disbursing agreement in form and content
satisfactory to Mortgagee in its sole discretion, and
Mortgagor shall promptly and diligently, regardless of whether
there shall be sufficient condemnation awards therefor,
restore, repair and alter the Mortgaged Property in a manner
satisfactory to Mortgagee. During the period of restoration,
repair and alteration, the Mortgagor shall continue to duly
and promptly pay, perform, observe and comply with all of the
Obligations. The election by Mortgagee to apply the
condemnation awards to the restoration, repair or alteration
of the Mortgaged Property shall not affect the lien of this
Mortgage or affect or reduce the Obligations. If any
restoration, repair or alteration of the Mortgaged Property
shall involve an estimated expenditure of more than
$25,000.00, same shall not be commenced until plans and
specifications therefor, prepared by an architect satisfactory
to Mortgagee, have been submitted to and approved by
Mortgagee.
5.8 Mortgagor's Right to Rebuild the Mortgaged
Property.
(a) Notwithstanding the provisions of Sections
5.6 and 5.7 hereof to the contrary, in the event that any
portion or portions of the Mortgaged Property are damaged or
destroyed by fire or by any other casualty, or are the subject
of a "de minimis" (for purposes of this Section 5.8, the term
"de minimis" shall mean an amount, as determined by Mortgagee
in its sole discretion, which does not adversely affect the
actual use of the Improvements) condemnation, and such damage,
destruction, or condemnation results in the need for repair,
rebuilding, or restoration work to be performed on the Mort-
gaged Property (such repair, rebuilding, or restoration is
referred to herein as the "Work"), Mortgagee shall allow
Mortgagor to use the amount by which the proceeds of all
insurance policies, judgments, settlements, or awards
collected with respect to such damage, destruction, or
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condemnation (except such amounts as are attributable to a
loss of rents) exceed the cost, if any, to Mortgagee for the
recovery of such proceeds (said net amount is defined herein
as the "Reconstruction Funds"), to perform the Work, so long
as the following conditions have been met:
(i) No Event of Default exists
hereunder, under the Note, or under any other of the Loan
Documents;
(ii) Mortgagor shall have
delivered evidence satisfactory to Mortgagee that the
Improvements may be reconstructed in accordance with all
applicable zoning and building codes, and all rules,
regulations, and ordinances of Governmental Authorities and
that, upon completion of the Work, the condition of the
Improvements will be at least equal in value and general
utility to that which existed immediately prior to such
casualty or condemnation;
(iii) Mortgagor shall have delivered
evidence satisfactory to Mortgagee that sufficient funds,
including the Reconstruction Funds, are available to perform
the Work and that the Work is capable of completion prior to
the then effective maturity date of the Note; and
(iv) Mortgagee shall be satisfied, in
its sole discretion, that the work can be completed and the
Improvements can be ready for occupancy at least three (3)
months prior to the maturity of the Loan;
(v) All parties having existing or
expected possessory interest in the Property agree in a manner
satisfactory to Mortgagee that they will continue or extend
their intent and arrangements for the contract terms then in
effect following the work;
(vi) All parties having operating,
management, or franchise interest in, and arrangement
concerning the Property agree that they will continue their
interest and arrangements for the contract terms then in
effect following the work; and
(vii) Mortgagee shall be satisfied
that it will not incur any liability to any other person as a
result of such use or release of insurance proceeds.
(b) In the event that the conditions set forth
in Section 5.8(a) above are satisfied, Mortgagee shall make
the Reconstruction Funds available to Mortgagor for the Work
only under the following procedures, terms, and conditions:
(viii) Mortgagor shall execute and
deliver to Mortgagee a copy of a contract with a licensed
contractor acceptable to Mortgagee setting forth a fixed price
for the Work and a completion date acceptable to Mortgagee;
(ix) Mortgagor shall demonstrate to
Mortgagee that the Reconstruction Funds are at least equal to
the fixed price of the Work as set forth in said contract or
shall deposit with Mortgagee funds in the amount by which such
fixed price exceeds the Reconstruction Funds;
(x) The Work shall be supervised by
an architect or engineer and performed in accordance with
plans and specifications prepared by such architect or
engineer and approved by Mortgagee;
(xi) The Reconstruction Funds, plus
any additional funds deposited by Mortgagor, shall be received
and held by Mortgagee and disbursed in accordance with the
terms and conditions used by Mortgagee in connection with the
a loan disbursing agreement to be prepared by Mortgagee and
Mortgagor's expense, and Mortgagor shall reimburse Mortgagee
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for costs and expenses incurred in connection with such
disbursements;
(xii) Upon completion of and final
payment for the Work, any remaining Reconstruction Funds
shall, at the option of Mortgagee, be applied to the
Obligations in such order as Mortgagee shall elect or paid
over to Mortgagor; provided, however, that in either event,
any remaining additional funds deposited by Mortgagor for
excess costs shall be refunded to Mortgagor; and
(xiii) Mortgagor shall otherwise comply
with the terms and conditions of this Mortgage and the other
Loan Documents during the performance of the Work.
(c) In the event any one or more of the
conditions set forth in Subsection 5.8(a) and 5.8(b) above is
not satisfied, Mortgagee may elect, in its sole discretion, to
apply the Reconstruction Funds against the balance of the
Obligations, whether or not due, in such manner as Mortgagee
shall elect.
(d) If an Event of Default shall occur
hereunder, or if Mortgagor shall fail diligently to pursue and
complete the Work, Mortgagee may, in its sole discretion,
apply any undisbursed Reconstruction Funds and any of
Mortgagor's deposits against the balance of the Obligations,
whether or not due, in such manner as Mortgagee shall elect.
5.9 Tax and Insurance Escrow. Supplementing the
provisions of Sections 5.4 and 5.5 hereof, and if required by
Mortgagee, Mortgagor shall pay to Mortgagee on the payment
date of installments of interest as provided in the Note,
together with and in addition to such installments of
interest, an installment of the Impositions and insurance
premiums for such insurance as is required hereunder, next due
on the Mortgaged Property in an amount sufficient, as
estimated by Mortgagee, to accumulate the sum required to pay
such Impositions and insurance, as applicable, thirty (30)
days prior to the due date thereof. Amounts held hereunder
shall not be, nor be deemed to be, trust funds, but may be
commingled with the general funds of Mortgagee, and no
interest shall be payable with respect thereto. Upon demand
of Mortgagee, Mortgagor shall deliver to Mortgagee, within ten
(10) days after such demand, such additional money as is
necessary to make up any deficiencies in the amounts necessary
to enable Mortgagee to pay such Impositions and insurance
premiums when due. In case of an Event of Default, Mortgagee
may apply any amount under this Section remaining to
Mortgagor's credit to the reduction of the Obligations, at
such times and in such manner as Mortgagee shall determine.
Notwithstanding anything contained herein to the contrary,
Mortgagee will not enforce its rights to require an escrow
hereunder unless an Event of Default has occurred or if a
material adverse change in the financial condition of
Mortgagor shall occur.
5.10 Repair. Mortgagor shall keep the Mortgaged
Property in good order and condition and make all necessary or
appropriate repairs and replacements thereof and betterments
and improvements thereto, ordinary and extraordinary, foreseen
and unforeseen, and use its best efforts to prevent any act
that might impair the value or usefulness of the Mortgaged
Property.
5.11 Inspection. Mortgagor shall permit Mortgagee
and its agents to inspect the Mortgaged Property at any time
during normal business hours and at all other reasonable
times.
5.12 Contest of Tax Assessments, Etc. After prior
written notice to Mortgagee, Mortgagor, at its own expense,
may contest by appropriate legal proceedings, promptly
initiated and conducted in good faith and with due diligence,
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the amount, validity or application, in whole or in part, of
(a) any of the Governmental Requirements referred to in
Section 5.3, or (b) any Imposition; provided that: (i) in the
case of any unpaid Imposition, such proceedings shall suspend
the collection thereof from Mortgagor and from the Mortgaged
Property, (ii) the Mortgaged Property or any part thereof will
not be in danger of being sold, forfeited, terminated,
canceled or lost, (iii) the use of the Mortgaged Property or
any part thereof for its present or future intended purpose or
purposes will not be interrupted, lost or terminated,
(iv) Mortgagor shall have set aside adequate reserves with
respect thereto, and (v) Mortgagor shall have furnished such
security as may be required in the proceedings or as may be
reasonably requested by Mortgagee.
5.13 Expenses.
(a) Mortgagor shall pay all costs and expenses
in connection with the Loan and the preparation, execution,
and delivery of the Loan Documents including, but not limited
to, fees and disbursements of counsel appointed by Mortgagee,
and all recording costs and expenses, documentary stamp tax
and intangible tax on the entire amount of funds disbursed
under the Loan, and other taxes, surveys, appraisals, premiums
for policies of title and other insurance and all other fees,
costs and expenses, if any, set forth in the Commitment, the
Loan Agreement, or otherwise connected with the Loan
transaction.
(b) Mortgagor shall pay or reimburse Mortgagee
for all costs, charges, expenses, and reasonable attorneys'
fees paid or incurred by Mortgagee pursuant to this Mortgage
including but not limited to those costs, charges, expenses
and fees paid or incurred for the payment of the Impositions,
insurance, completion of construction, repairs, appraisal
fees, environmental assessment fees, or any other fees paid or
incurred in any action, proceeding or dispute of any kind in
which Mortgagee is a party because of any Obligation not being
duly and promptly performed or being violated, including, but
not limited to, the foreclosure or other enforcement of this
Mortgage, any condemnation or eminent domain action involving
the Mortgaged Property or any part thereof, any action to
protect the security hereof, or any proceeding in probate,
reorganization, bankruptcy, arbitration, or forfeiture in rem.
All such amounts paid or incurred by Mortgagee, together with
interest thereon at the Default Rate from the date incurred by
Mortgagee, shall be secured by this Mortgage and shall be due
and payable by Mortgagor immediately, whether or not there be
notice or demand therefor.
(c) Any reference in this Mortgage to
attorneys' or counsels' fees paid or incurred by Mortgagee
shall be deemed to include paralegals' fees and legal
assistants' fees. Moreover, wherever provision is made herein
for payment of attorneys' or counsels' fees or expenses
incurred by the Mortgagee, said provision shall include, but
not be limited to, such fees or expenses incurred in any and
all judicial, bankruptcy, reorganization, administrative, or
other proceedings, including appellate proceedings, whether
such fees or expenses arise before proceedings are commenced
or after entry of a final judgment.
5.14 Preservation of Agreements. Mortgagor shall
preserve and keep in full force and effect all agreements,
approvals, permits and licenses necessary for the development,
use and operation of the Mortgaged Property for its intended
purpose or purposes.
5.15 Books and Records. The Mortgagor shall keep
and maintain, at all times, full, true and accurate books of
accounts and records, adequate to correctly reflect the cost,
performance, maintenance or condition of the Mortgaged
Property. Upon advance notice to Mortgagor, the Mortgagee
shall have the right to examine such books and records and to
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make such copies or extracts therefrom as the Mortgagee shall
require.
5.16 Estoppel Affidavits. Mortgagor, within ten
(10) days after written request from Mortgagee, shall furnish
a written statement, duly acknowledged, setting forth the
unpaid principal balance of, and interest on, the Obligations
secured by this Mortgage, and whether or not any off-sets or
defenses exist thereto.
5.17 Indemnification.
(a) Mortgagor shall at its own expense, and
does hereby agree to, protect, indemnify, reimburse, defend
and hold harmless Mortgagee and its directors, officers,
agents, employees attorneys, successors and assigns from and
against any and all liabilities (including strict liability),
losses, suits, proceedings, settlements, judgments, orders,
penalties, fines, liens, assessments, claims, demands,
damages, injuries, obligations, costs, disbursements, expenses
or fees, of any kind or nature (including attorneys' fees and
expenses paid or incurred in connection therewith) arising out
of or by reason of (i) an incorrect legal description of the
Land; (ii) any action, or inaction of Mortgagee in connection
with the Note, this Mortgage, the other Loan Documents or the
Mortgaged Property; (iii) the construction of any
Improvements; (iv) the use and operation of the Mortgaged
Property; (v) any acts or omissions of Mortgagor or any other
Person at, on or about the Mortgaged Property regarding the
contamination of air, soil, surface waters or groundwaters
over, on or under the Mortgaged Property; (vi) the presence,
whether past, present or future, of any Hazardous Material on,
in or under the Mortgaged Property; or (vii) any past, present
or future events, conditions, circumstances, activities,
practices, incidents, actions or plans involving the
manufacture, processing, distribution, use, transport,
handling, treatment, storage, disposal, cleanup, emission,
discharge, seepage, spillage, leakage, release or threatened
release of any Hazardous Material on, in, under or from the
Mortgaged Property, in connection with Mortgagor's operations
on the Mortgaged Property, or otherwise; all of the foregoing
regardless of whether within the control of Mortgagee.
(b) The indemnifications of this Section 5.17
shall survive the full payment and performance of the
Obligations and the satisfaction of this Mortgage.
5.18 Mortgagor to Furnish Financial Statements.
Mortgagor shall submit annual and interim financial statements
and other accounting data as required in the Loan Agreement.
Such statements shall include, at a minimum: a balance sheet;
an income and expense statement; and a statement showing
contingent liabilities. Each unaudited statement must contain
a certification to Mortgagee of the statement's accuracy and
completeness signed by an authorized officer or the
individual, as applicable. Unless otherwise specified in the
Loan Agreement, annual statements of business entities
(including corporations) shall be audited and bear the
unqualified opinion of an acceptable certified public
accountant. The annual statements shall be submitted when
required in the Loan Agreement, or if not specified then no
later than April 30 of each year of the Loan term. Interim
statements shall be submitted as required in the Loan
Agreement.
5.19 Further Assurances. Mortgagor, at its sole
expense, upon the request of Mortgagee, shall execute,
acknowledge and deliver such further instruments and do such
further acts as may, in the opinion of the Mortgagee, be
necessary, desirable, or proper to carry out more effectively
the purpose of this Mortgage and to subject to the lien hereof
any property intended by the terms hereof to be covered
hereby, including, without limitation, any proceeds, renewals,
additions, substitutions, replacements, products, betterments,
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accessions and appurtenances thereto and thereof.
5.20 Junior Mortgage(s) and Rights of Mortgagee.
(a) Mortgagor shall, with respect to any
Junior Mortgage, (i) promptly observe and perform all of the
covenants and conditions contained in the Junior Mortgage,
(ii) duly and promptly make all payments required by the terms
of the Junior Mortgage, (iii) promptly notify Mortgagee in
writing upon receipt by Mortgagor of any notice that Mortgagor
is in default under the Junior Mortgage or that an event has
occurred which with due notice or the lapse of time, or both,
would constitute a default under the Junior Mortgage, and to
promptly cause a copy of each such notice given by the holder
thereof to be delivered to Mortgagee, and (iv) from time to
time upon demand of Mortgagee submit evidence to Mortgagee
that Mortgagor has maintained and is maintaining the Junior
Mortgage in good standing. Upon receipt by Mortgagee of any
such aforesaid notice, Mortgagee may rely thereon even though
the existence of such default or the nature thereof may be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor.
(b) If Mortgagor fails to make any payment
required under the Junior Mortgage as and when due, or fails
to perform any condition, covenant, or term of the Junior
Mortgage, then Mortgagee may on behalf of Mortgagor, but
without obligation to do so, and without notice to and demand
upon Mortgagor, and without releasing Mortgagor from any
Obligation and without waiving any Event of Default hereunder,
take any action Mortgagee deems necessary or desirable to
prevent or cure any such default by Mortgagor, including, but
without limitation, the right to pay any and all payments of
principal and interest, insurance premiums, taxes and
assessments and other sums due or to become due under the
Junior Mortgage. Mortgagor hereby expressly grants to
Mortgagee and agrees that Mortgagee and its agents shall have
the absolute and immediate right to enter upon the Land and
the Improvements or any part thereof to such extent and as
often as Mortgagee in its sole discretion deems necessary or
desirable in order to prevent or cure any such default by
Mortgagor. All payments and all costs and expenses incurred
by Mortgagee in connection with any such prevention or cure
(including, without limitation, reasonable attorneys' fees and
expenses), together with interest thereon at the Default Rate
from the date incurred by Mortgagee, shall be secured by this
Mortgage and shall be due and payable by Mortgagor
immediately, whether or not there be notice, demand, an
attempt to collect same, or suit pending.
(c) Nothing in this Section 5.20 shall in any
manner be construed as consent by Mortgagee to the further
encumbering or mortgaging of the Mortgaged Property.
5.21 Financing Statements. Mortgagor shall execute
and deliver to Mortgagee, in form and substance satisfactory
to Mortgagee, such financing statements, continuation
statements, and such further assurances as Mortgagee may from
time to time consider reasonably necessary to create, perfect,
preserve and maintain in full force and effect Mortgagee's
lien upon the Fixtures, Leases, Rents and Personal Property;
and, Mortgagee, at the expense of Mortgagor, may cause such
statements and assurances to be recorded and rerecorded, filed
and re-filed, in the name of Mortgagor, and Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said
attorney or attorneys in the name of Mortgagor, but at the
option of said attorney-in-fact, to execute and file any and
all financing statements.
5.22 Withholding Taxes.
(a) If under any applicable law or regulation
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or the interpretation thereof by any Governmental Authority
charged with the administration thereof, Mortgagor shall be
required to make any withholding or deduction from any payment
of the Obligations (whether of principal, interest or
otherwise) to be made by or on behalf of Mortgagor to
Mortgagee for or in respect of any present or future taxes,
levies, imposts, duties, charges, or fees of any nature
(excepting only Mortgagee's income taxes of the United States
of America and its political subdivisions), the amount due to
Mortgagee from Mortgagor in respect of such payment shall be
increased to the extent necessary to ensure that after making
such withholding or deduction and any withholdings or
deductions required to be made in respect to any such
increase, Mortgagee shall receive an amount equal to the
amount which Mortgagee would have received had no such
withholding or deduction been required to be made. In the
event of any such withholding or deduction, Mortgagor shall
deliver to Mortgagee forthwith after receipt thereof the
official receipt or other official documentation evidencing
the payment of the amount so withheld or deducted.
(b) If Mortgagor shall fail to make any
withholding or deduction so required to be made, Mortgagee
reserves the right to make payment thereof to the appropriate
Governmental Authority. If Mortgagee makes such payment under
any applicable law or regulation or if as a result of the
interpretation thereof by any Governmental Authority charged
with the administration thereof in respect of any such
payment, whether of principal, interest or otherwise made or
to be made by Mortgagor, Mortgagee shall be required to pay
any tax, levy, impost, duty, charge or fee of any nature
(excepting only Mortgagee's income taxes of the United States
of America and its political subdivisions), Mortgagor shall
and does hereby indemnify Mortgagee against and shall
forthwith upon demand of Mortgagee pay to Mortgagee the amount
of such payment, together with any interest, penalties, and
expenses in connection therewith, and interest thereon at the
Default Rate; and in the event any of the aforesaid amounts,
interest, penalties or expenses shall be subject to
withholding or deduction, the amount thereof shall be
increased to the extent necessary to ensure that after making
such withholding or deduction and any withholdings or
deductions in respect of any such increase, Mortgagee shall
receive an amount equal to the amount which Mortgagee would
have received had no such withholding or deduction been
required to be made.
(c) Any increased amount required to be paid
by Mortgagor in accordance with the provisions of this
Section 5.22 shall have the same character as the amount in
respect of which such increased amount is determined, but
shall not (i) if characterized as principal, be applied in
reduction of the principal amount outstanding under the
Obligations or (ii) if characterized as interest, be applied
in reduction of accrued, unpaid interest under the
Obligations.
5.23 Hazardous Material. Mortgagor hereby
discloses to Mortgagee that in the course of conducting
Mortgagor's business upon the Mortgaged Property, Mortgagor
will use various chemicals in its manufacturing and assembly
processes, some of which may constitute a Hazardous Material,
such as by way of example, chlorine gas. Mortgagee hereby
recognizes that such chemicals may be used in the ordinary
course of Mortgagor's business operations upon the Property.
Provided, however, that any such use, handling and storage of
Hazardous Material must be in compliance with all
Environmental Requirements and Environmental Laws, and shall
not constitute a violation of such Environmental Requirements
and Environmental Laws or this Mortgage.
(a) Mortgagor shall immediately notify
Mortgagee orally and in writing (i) if Mortgagor becomes aware
of the presence of any Hazardous Material or other
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environmental problem or liability on, in, under, released
from or associated with the Mortgaged Property except as to
Hazardous Material lawfully used by the Mortgagor in the
ordinary course of Mortgagor's business operations on the
Mortgaged Property, or (ii) if an Environmental Claim is then
existing with respect to the Mortgaged Property. Mortgagor
shall forthwith transmit to Mortgagee all information it has
received with respect to the Environmental Claim.
(b) Mortgagor shall, at its own cost and
expense, take any action necessary or advisable for the
cleanup of any unlawfully used Hazardous Material on, in,
under, released from or associated with the Mortgaged
Property, including any removal, containment or remedial
actions in accordance with all applicable Environmental Laws,
and shall pay or cause to be paid all cleanup, administrative,
enforcement and other costs, expenses or fines which may be
asserted against Mortgagor, Mortgagee, the Mortgaged Property,
or any other Person in connection therewith.
(c) Mortgagee shall have the right but not the
obligation, and without any limitation of Mortgagee's other
rights under this Mortgage, to enter onto the Mortgaged
Property or to take any action as it deems necessary or
advisable to cleanup, remove, resolve or minimize the impact
of, or otherwise deal with, any Hazardous Material or any
Environmental Claim following receipt of any notice from any
Person or Governmental Authority asserting the existence of
any Hazardous Material or an Environmental Claim pertaining to
the Mortgaged Property or any part thereof which, if true,
could result in an order, suit or other action against
Mortgagor or Mortgagee which, in the sole opinion of
Mortgagee, could jeopardize Mortgagee's security under this
Mortgage. All costs and expenses incurred by Mortgagee in the
exercise of any such rights shall be secured by this Mortgage
and shall be payable by Mortgagor upon demand.
(d) Except as to Hazardous Material lawfully
used by the Mortgagor in the ordinary course of Mortgagor's
business operations on the Mortgaged Property, if Mortgagee
shall have reason to believe that any other Hazardous Material
affects the Mortgaged Property, or if required by any
Governmental Authority or Governmental Requirement, or if any
Environmental Claim is made or threatened, or if an Event of
Default shall have occurred hereunder or under any of the Loan
Documents, or if the lien of the Mortgage is foreclosed upon
or upon a conveyance by deed in lieu of foreclosure wherein
possession of the Mortgaged Property has been given to and
accepted by the purchaser or grantee, then Mortgagor shall,
within forty-five (45) days of Mortgagee's written request,
cause to be prepared an environmental assessment of the
Mortgaged Property (but not more frequently than annually
unless an Environmental Claim is then outstanding) and, if
required by Mortgagee, an environmental assessment (as
hereinafter defined) of the Mortgaged Property including
Hazardous Material waste management practices and Hazardous
Material waste disposal sites thereon. As used herein, the
term "Environmental Assessment" means a report (including all
drafts thereof) of an environmental assessment of the
Mortgaged Property of such scope (including but not limited to
the taking of soil borings and air and groundwater samples and
other above and below ground testing) as Mortgagee may
request, by a consulting firm acceptable to Mortgagee, made in
accordance with Mortgagee's established guidelines and at
Mortgagor's sole cost and expense. Should Mortgagor fail to
provide such Environmental Assessment within said forty-five
(45) day period, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform
and prepare same. All costs and expenses incurred by
Mortgagee in the exercise of such rights shall be secured by
this Mortgage and shall be payable by Mortgagor upon demand or
charged to Mortgagor's loan balance at the discretion of
Mortgagee. In the event Mortgagee causes an Environmental
Assessment of the Mortgaged Property to be conducted,
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Mortgagee agrees to provide a copy of such Environmental
Assessment to Mortgagor, upon Mortgagor's request.
5.24 Financial Reports, Etc. Mortgagor shall, at
Mortgagor's sole cost and expense, provide Mortgagee with any
financial statements, financial reports, appraisals or other
documentation with respect to Mortgagor or the Mortgaged
Property which may be required from time to time by any
Governmental Authority having regulatory authority over
Mortgagee. Such information shall be provided by Mortgagor
within thirty (30) days after written request from Mortgagee.
5.25 Appraisals. In addition to the appraisals
required by Mortgagee prior to closing of the Loan, updated
appraisals shall be prepared at Mortgagor's expense when
requested by Bank or when required in connection with any
extension options in the Note. Such appraisals shall be
prepared in accordance with written instructions from
Mortgagee by a professional appraiser selected and engaged by
Mortgagee. Mortgagor shall cooperate fully with the appraisal
process and shall allow the appraisers reasonable access to
the Mortgaged Property and its tenants. Notwithstanding
anything contained herein to the contrary, Mortgagee shall not
request updated appraisals pursuant to this Section unless an
Event of Default has occurred, or if required by any
governmental law or regulation, or for good cause (i.e.
Mortgagee has reason to believe the value of the Mortgaged
Property has declined such that the Original Loan-to-Value
Ratio [as defined below] is no longer maintained).
5.26 Reappraisal of Mortgaged Property. Mortgagor
acknowledges that Mortgagee was induced to enter into the
subject Loan transaction based upon a specific loan-to-value
ratio (the "Original Loan-to-Value Ratio"). The Original
Loan-to-Value Ratio was based upon the appraised value (the
"Original Appraised Value") of the Mortgaged Property set
forth in the appraisal Mortgagor submitted to Mortgagee prior
to the closing of the subject Loan transaction. If any
updated appraisal received by Mortgagee pursuant to Section
5.25 above reflects that the appraised value of the Mortgaged
Property has decreased from the Original Appraised Value and
if such decrease results in a loan-to-value ratio which is
higher than the Original Loan-to-Value Ratio, Mortgagor shall
within ten (10) days of Mortgagee's written request make a
principal payment (the "Prepayment") under the Note in an
amount sufficient to maintain the Original Loan-to-Value
Ratio. Such Prepayment shall not entitle Mortgagor to a
release of any of the Mortgaged Property.
5.27 Performance of Loan Documents. Mortgagor shall
duly and punctually perform all covenants, terms and
agreements expressed as binding upon it under all of the Loan
Documents.
5.28 Performance of Other Agreements. Mortgagor
shall duly and punctually perform all covenants, terms and
agreements expressed as binding upon it under any Permitted
Title Exception, or any other agreement of any nature
whatsoever binding upon it with respect to the Mortgaged
Property.
5.29 Construction Loan Agreement. The Loan
evidenced by the Note and secured by this Mortgage is to be
disbursed in accordance with the terms and provisions of the
Loan Agreement. The Note, this Mortgage and the Loan
Agreement shall always be taken and read together as
constituting parts of one transaction. All sums disbursed
pursuant to the terms of the Loan Agreement shall be secured
by this Mortgage with the same priority as if advanced on the
date hereof. Mortgagor shall fully, duly and promptly
discharge each and every of its agreements contained in the
Loan Agreement and comply with, abide by and perform all of
the provisions and conditions thereof.
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ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations, Etc. Mortgagor shall not use
the Mortgaged Property or allow the same to be used or
occupied for any unlawful purpose or in violation of any
Governmental Requirement or restrictive covenant covering,
affecting or applying to the ownership, use or occupancy
thereof, commit or permit or suffer any act to be done or any
condition to exist on the Mortgaged Property or any article to
be brought thereon that may be dangerous, or that may in any
way increase any ordinary fire or other hazard, unless
safeguarded as required by law, or that may, in law,
constitute a nuisance, public or private.
6.2 Care of the Mortgaged Property.
(a) Mortgagor shall not commit or permit any
waste, impairment, or deterioration of the Mortgaged Property,
or (except as may be provided for in the Loan Agreement)
perform any clearing, grading, filling or excavation of the
Mortgaged Property, or make or permit to be made to the
Mortgaged Property any alterations or additions that would
have the effect of materially diminishing the value thereof
(in Mortgagee's sole opinion) or take or permit any action
that will in any way increase any ordinary fire or other
hazard arising out of the construction or operation thereof.
(b) Mortgagor shall not, without the prior
written consent of Mortgagee, remove, demolish or
substantially alter, or permit the removal, demolishment or
substantial alteration of, any Improvements on the Land. In
the event such consent is given and if any work to be
performed shall involve an estimated expenditure of more than
$25,000.00, no such work shall be undertaken until plans and
specifications therefor, prepared by an architect satisfactory
to Mortgagee, shall have been submitted to and approved by
Mortgagee.
(c) Mortgagor shall not permit any of the
Fixtures or Personal Property to be demolished or to be
removed from the Land, without the prior written consent of
Mortgagee. In the event such consent is given, the Mortgagee
may require that said Fixture or Personal Property be replaced
by an article of equal suitability and value, owned by
Mortgagor free and clear of any vendor's lien, chattel
mortgage, or security interest of any kind, except such as may
be approved in writing by Mortgagee, and that such replacement
article be encumbered by the lien of this Mortgage.
Notwithstanding the foregoing, the Mortgagor may remove or
demolish any Fixture or Personal Property without first
obtaining the Mortgagee's prior written consent provided
(i) the value of such article does not exceed in value at the
time of disposition thereof $50,000.00 for any single item, or
a total of $150,000.00 in any one year for all such items and
(ii) that said article is replaced and subject to the lien of
this Mortgage as aforesaid.
6.3 Other Liens and Mortgages.
(a) Mortgagor shall not, without the prior
written consent of Mortgagee, create or permit to be created
or to remain, any mortgage, pledge, construction lien or other
lien, conditional sale or other title retention agreement,
encumbrance, claim, or charge on (whether prior or subordinate
to the lien of this Mortgage or the other Loan Documents) the
Mortgaged Property or income therefrom, other than this
Mortgage, the other Loan Documents and the Permitted Title
Exceptions. Any transaction prohibited under this Section
shall be null and void.
(b) Mortgagor shall not, without the prior
written consent of Mortgagee, (i) enter into any agreement
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either oral or in writing, whereby any permitted Junior
Mortgage is modified or amended in any manner whatsoever,
(ii) permit the release of any guarantor or modification of
any guaranty affecting any permitted Junior Mortgage, or
(iii) incur any additional indebtedness secured thereby.
(c) Mortgagor shall not directly or
indirectly, take, acquire, or permit to be taken or acquired
by any other party, any interest whatsoever in any permitted
Junior Mortgage without the prior written consent of
Mortgagee.
6.4 Transfer of Mortgaged Property. Except as may
otherwise be expressly permitted in the Loan Agreement (if
any) executed in connection with this Mortgage, Mortgagor
shall not sell, convey, or transfer or permit to be sold,
conveyed or transferred any interest in the Mortgaged Property
or any part thereof. A contract to deed or agreement for
deed, or an assignment, pledge, or encumbrance of a beneficial
interest in any land trust, or a lease for all or
substantially all of the Land or Improvements shall constitute
a transfer prohibited by the provisions of this Section and
shall be null and void.
6.5 Mortgagor's Certificate of Incorporation and
Partnership Agreement. Mortgagor, if a corporation or a
Partnership, shall not, without the prior written consent of
Mortgagee, materially amend or modify its articles or
certificate of incorporation or bylaws or its certificate of
Partnership or Partnership agreement.
6.6 Environmental Contamination/Hazardous Material.
Mortgagor and the Mortgaged Property shall at all times remain
in full compliance with all Environmental Laws. Except as to
Hazardous Material lawfully used by the Mortgagor in the
ordinary course of Mortgagor's business operations on the
Mortgaged Property, Mortgagor shall not, nor permit any other
person to manufacture, process, distribute, use, transport,
handle, treat, store, dispose, emit, discharge, leak, spill or
release any Hazardous Material on, in, under or from the
Mortgaged Property.
ARTICLE VII
EVENTS OF DEFAULT
7.1 Events of Default. An "Event of Default", as
used in this Mortgage, shall occur at any time or from time to
time:
(a) Failure to Pay. If any Obligation or any
installment thereof is not paid as and when due and payable;
(b) Failure to Perform. If any Obligation
other than an Obligation requiring the payment of money or the
occurrence of an event described in Subsections 7.1(e), (g),
(i), (l) or (m) below is not duly and promptly performed or is
violated and such non-performance or violation is not curable,
or if curable continues for a period of ten (10) days after
written notice thereof from Mortgagee to Mortgagor, provided,
however, if such non-performance or violation may not
reasonably be cured within such ten (10) day period, an Event
of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be
cured. Notwithstanding the foregoing, it shall be an Event of
Default if such non-performance or violation has not been
cured within sixty (60) days after notice thereof;
(c) False Representation. If any
representation or warranty made in any Loan Document by or on
behalf of Mortgagor or any Guarantor is at any time false,
misleading, or breached;
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(d) Judgment. If a final judgment for the
payment of money is rendered against Mortgagor or any
Guarantor, and the same remains unsatisfied except for such
period of time as execution on the judgment is effectively
stayed;
(e) Voluntary Bankruptcy, Etc. If Mortgagor
or any Guarantor (i) is voluntarily adjudicated a bankrupt or
insolvent, (ii) seeks or consents to the appointment of a
receiver or trustee for itself or for all or any part of its
property, (iii) files a petition seeking relief, including
reorganization, arrangement or similar relief, under the
present Bankruptcy Code or other similar present or future
applicable laws of the United States or any state or any other
competent jurisdiction, (iv) makes a general assignment for
the benefit of creditors or (v) admits in writing its
inability to pay its debts as they mature;
(f) Involuntary Bankruptcy, Etc. If a
receiver or trustee is appointed for Mortgagor or any
Guarantor or for all or any part of their respective
properties without their respective consents and such
appointment is not vacated within one hundred twenty (120)
days, or if a petition is filed against Mortgagor or any
Guarantor seeking relief, including reorganization,
arrangement or similar relief, under the present Bankruptcy
Code or other similar present or future applicable laws of the
United States or any state or other competent jurisdiction,
and such petition is not dismissed within one hundred twenty
(120) days after the filing thereof;
(g) Dissolution. If Mortgagor or any
Guarantor voluntarily or involuntarily dissolves or
liquidates;
(h) Financial Condition. If a material
adverse change has occurred, at any time or times subsequent
to the date hereof, in the financial condition, results of
operations, operations, business, properties, or prospects of
Mortgagor, its subsidiaries, parent or affiliates;
(i) Default Under Loan Documents. If any
default occurs under any of the other Loan Documents or if any
obligation of Mortgagor under any of the other Loan Documents
is not fully performed;
(j) Foreclosure of Other Liens. If the holder
of any mortgage or other lien on the Mortgaged Property,
whether a Permitted Title Exception or not (without hereby
implying Mortgagee's consent to any such mortgage or other
lien) institutes foreclosure or other proceedings for the
enforcement of any of its remedies thereunder;
(k) Notice Limiting Future Advances. If
Mortgagor, pursuant to Florida Statutes 697.04(1)(b) as
amended from time to time, files for record a notice limiting
the maximum amount which may be secured by this Mortgage;
(l) Default Under Junior Mortgage. If any
default or any event of default occurs under any permitted
Junior Mortgage, whether or not foreclosure or other
proceedings have been instituted thereunder; or
(m) Other Events of Default. If a general
partner of Mortgagor, if Mortgagor is a limited partnership,
or any partner of Mortgagor, if Mortgagor is a general
partnership, is the subject of any occurrence described in
Subsections (d) through (h), inclusive, of this Article.
ARTICLE VIII
RIGHTS AND REMEDIES
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8.1 Remedies. If an Event of Default shall have
occurred, Mortgagee may, at its option, exercise any, some or
all of the following remedies, concurrently or consecutively.
(a) Acceleration. Mortgagee may declare all
of the unpaid Obligations, together with all accrued interest
thereon, to be due and payable without notice or demand which
are hereby expressly waived, and upon such declaration all
such Obligations shall immediately become due and payable as
fully and to the same effect as if the date of such
declaration were the date originally specified for the full
payment or maturity thereof.
(b) Mortgagee's Right to Enter and Take
Possession, Operate and Apply Income.
(i) Mortgagee may demand that
Mortgagor surrender the actual possession of the Mortgaged
Property and upon such demand, Mortgagor shall forthwith
surrender same to Mortgagee and, to the extent permitted by
law, Mortgagee itself, or by such officers or agents as it may
appoint, may enter and take possession of all of the Mortgaged
Property and may exclude Mortgagor and its agents and
employees wholly therefrom. Notwithstanding anything to the
contrary contained herein, the surrender of possession of the
Mortgaged Property by Mortgagor herein shall under no
circumstances be construed to mean Mortgagor's surrender of
the business operated on the Mortgaged Property.
(ii) If Mortgagor shall for any
reason fail to surrender or deliver the Mortgaged Property or
any part thereof after Mortgagee's demand, Mortgagee may
obtain a judgment or order conferring on Mortgagee the right
to immediate possession or requiring the Mortgagor to deliver
immediate possession to Mortgagee, to the entry of which
judgment or decree the Mortgagor hereby specifically consents.
(iii) Mortgagee may from time to time:
(A) continue and complete construction of, hold, store, use,
operate, manage and control the Mortgaged Property and conduct
the business thereof; (B) make all reasonably necessary
maintenance, repairs, renewals, replacements, additions,
betterments and improvements thereto and thereon and purchase
or otherwise acquire additional Fixtures and Personal
Property; (C) insure or keep the Mortgaged Property insured;
(D) exercise all the rights and powers of the Mortgagor in its
name or otherwise with respect to the same; and (E) enter into
agreements with others (including, without limitation, new
Leases or amendments, extensions, or cancellations to existing
Leases) all as Mortgagee from time to time may determine in
its sole discretion. Mortgagor hereby constitutes and
irrevocably appoints Mortgagee its true and lawful attorney-
in-fact, which appointment is coupled with an interest, with
full power of substitution, and empowers said attorney or
attorneys in the name of Mortgagor, but at the option of said
attorney-in-fact, to do any and all acts and execute any and
all agreements that Mortgagee may deem necessary or proper to
implement and perform any and all of the foregoing.
(iv) The Mortgagee may, with or
without taking possession of the Mortgaged Property as
hereinabove provided, collect and receive all the Rents
therefrom, including those past due as well as those accruing
thereafter, and shall apply the monies so received first, to
the payment of all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee and its agents in connection with the collection
of same, whether or not in possession of the Mortgaged
Property, and second, in such order as Mortgagee may elect, to
the payment of the Obligations.
(c) Proceedings To Recover Sums Due.
(i) If any installment or part of
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any Obligation shall fail to be paid when due, Mortgagee shall
be entitled to xxx for and to recover judgment against the
Mortgagor for the amount so due and unpaid together with all
costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest
thereon at the Default Rate from the date incurred by
Mortgagee. All such costs and expenses shall be secured by
this Mortgage and shall be due and payable by Mortgagor
immediately.
(ii) If Mortgagor shall fail to pay
upon the Mortgagee's demand, after acceleration as provided in
Subsection 8.1(a), all of the unpaid Obligations, together
with all accrued interest thereon, Mortgagee shall be entitled
to xxx for and to recover judgment against the Mortgagor for
the entire amount so due and unpaid together with all costs
and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest
thereon at the Default Rate from the date incurred by
Mortgagee. All such costs and expenses shall be secured by
this Mortgage and shall be payable by Mortgagor immediately.
Mortgagee's right under this Sub-section (ii) may be exercised
by Mortgagee either before, after or during the pendency of
any proceedings for the enforcement of this Mortgage,
including appellate proceedings.
(iii) No recovery of any judgment as
provided in Subsections (i) and (ii) above and no attachment
or levy of any execution upon any of the Mortgaged Property or
any other property shall in any way affect the lien of this
Mortgage upon the Mortgaged Property or any part thereof, or
any lien, rights, powers, or remedies of Mortgagee hereunder,
but such lien, rights, powers and remedies shall continue
unimpaired as before.
(d) Foreclosure.
(i) Mortgagee may institute
proceedings for the partial or complete foreclosure of this
Mortgage and Mortgagee may, pursuant to any final judgment of
foreclosure, sell the Mortgaged Property as an entirety or in
separate lots, units, or parcels.
(ii) In case of a foreclosure sale of
all or any part of the Mortgaged Property, the proceeds of
sale shall be applied in accordance with Section 8.8 hereof,
and the Mortgagee shall be entitled to seek a deficiency
judgment against the Mortgagor to enforce payment of any and
all Obligations then remaining due and unpaid, together with
interest thereon, and to recover a judgment against the
Mortgagor therefor.
(iii) The Mortgagee is authorized to
foreclose this Mortgage subject to the rights of any tenants
of the Mortgaged Property, or Mortgagee may elect which
tenants Mortgagee desires to name as parties defendant in such
foreclosure and failure to make any such tenants parties
defendant to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by the Mortgagor to
be, a defense to any proceedings instituted by the Mortgagee
to collect the unpaid Obligations or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged
Property.
(e) Receiver. Mortgagee may apply to any
court of competent jurisdiction to have a receiver appointed
to enter upon and take possession of the Mortgaged Property,
collect the Rents therefrom and apply the same as the court
may direct, such receiver to have all of the rights and powers
permitted under the laws of the State of Florida. The right
of the appointment of such receiver shall be a matter of
strict right without regard to the value or the occupancy of
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the Mortgaged Property or the solvency or insolvency of
Mortgagor. The expenses, including receiver's fees,
attorneys' fees, costs and agent's commission incurred
pursuant to the powers herein contained, together with
interest thereon at the Default Rate, shall be secured hereby
and shall be due and payable by Mortgagor immediately without
notice or demand. Notwithstanding the appointment of any
receiver or other custodian, Mortgagee shall be entitled as
pledgee to the possession and control of any cash or deposits
at the time held by, payable, or deliverable under the terms
of this Mortgage to the Mortgagee, and the Mortgagee shall
have the right to offset the unpaid Obligations against any
such cash or deposits in such order as Mortgagee may elect.
(f) Remedies as to Personal Property.
Mortgagee may exercise any or all of its rights and remedies
under the Uniform Commercial Code-Secured Transactions as
adopted by the State of Florida or other applicable law as
well as all other rights and remedies possessed by Mortgagee,
all of which shall be cumulative. Mortgagee is hereby
authorized and empowered to enter the Mortgaged Property or
other place where the Personal Property may be located without
legal process, and to take possession of the Personal Property
without notice or demand, which hereby are waived to the
maximum extent permitted by the laws of the State of Florida.
Upon demand by Mortgagee, Mortgagor shall make the Personal
Property available to Mortgagee at a place reasonably
convenient to Mortgagee. Mortgagee may sell at one or more
public or private sales and for such price as Mortgagee may
deem commercially reasonable, any and all of the Personal
Property secured by this Mortgage, and any other security or
property held by Mortgagee and Mortgagee may be the purchaser
of any or all of the Personal Property.
(g) Other. Mortgagee may institute and
maintain any suits and proceedings as the Mortgagee may deem
advisable (i) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or in violation of
this Mortgage, (ii) to preserve or protect its interest in the
Mortgaged Property, and (iii) to restrain the enforcement of
or compliance with any Governmental Requirement that may be
unconstitutional or otherwise invalid, if the enforcement of
or compliance with such Governmental Requirement might impair
the security hereunder or be prejudicial to the Mortgagee's
interest.
8.2 Remedies Cumulative and Concurrent. No right,
power or remedy of Mortgagee as provided in the Note, this
Mortgage, the Guaranty, or the other Loan Documents is
intended to be exclusive of any other right, power, or remedy
of Mortgagee, but each and every such right, power and remedy
shall be cumulative and concurrent and in addition to any
other right, power or remedy available to Mortgagee now or
hereafter existing at law or in equity and may be pursued
separately, successively or together against Mortgagor, any
Guarantor, or any endorser, co-maker, surety or guarantor of
the Obligations, or the Mortgaged Property or any part
thereof, or any one or more of them, at the sole discretion of
Mortgagee. The failure of Mortgagee to exercise any such
right, power or remedy shall in no event be construed as a
waiver or release thereof.
8.3 Waiver, Delay or Omission. No waiver of any
Event of Default hereunder shall extend to or affect any
subsequent or any other Event of Default then existing, or
impair any rights, powers or remedies consequent thereon, and
no delay or omission of Mortgagee to exercise any right, power
or remedy shall be construed to waive any such Event of
Default or to constitute acquiescence therein.
8.4 Credit of Mortgagee. To the maximum extent
permitted by the laws of the State of Florida, upon any sale
made under or by virtue of this Article, Mortgagee may bid for
and acquire the Mortgaged Property, or any part thereof, and
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in lieu of paying cash therefor may apply to the purchase
price, any portion of or all of the unpaid Obligations in such
order as Mortgagee may elect.
8.5 Sale. Any sale or sales made under or by
virtue of this Article shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever at law or
in equity, of the Mortgagor and all Persons, except tenants
pursuant to Leases approved by Mortgagee, claiming by, through
or under Mortgagor in and to the properties and rights so
sold, whether sold to Mortgagee or to others.
8.6 Proofs of Claim. In the case of any
receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition, seizure of the Mortgaged
Property by any Governmental Authority, or other judicial
proceedings affecting the Mortgagor, any Guarantor, any
endorser, co-maker, surety, or guarantor of the Obligations,
or any of their respective properties, the Mortgagee, to the
extent permitted by law, shall be entitled to file such proofs
of claim and other documents as may be necessary or advisable
in order to have its claim allowed in such proceedings for the
entire unpaid Obligations at the date of the institution of
such proceedings, and for any additional amounts which may
become due and payable after such date.
8.7 Waiver of Redemption, Notice, Marshalling, Etc.
Mortgagor hereby waives and releases, for itself and anyone
claiming through, by, or under it, to the maximum extent
permitted by the laws of the State of Florida:
(a) all benefit that might accrue to Mortgagor
by virtue of any present or future law exempting the Mortgaged
Property, or any part of the proceeds arising from any sale
thereof, from attachment, levy or sale on execution, or
providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time
for payment,
(b) unless specifically required herein, all
notices of default, or Mortgagee's actual exercise of any
option or remedy under the Loan Documents, or otherwise, and
(c) any right to have the Mortgaged Property
marshalled.
8.8 Application of Proceeds. The proceeds of any
sale of all or any portion of the Mortgaged Property shall be
applied by Mortgagee first, to the payment of receiver's fees
and expenses, if any, and to the payment of all costs and
expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Mortgagee, together with
interest thereon at the Default Rate from the date so
incurred, in connection with any entry, action or proceeding
under this Article and, second, in such order as Mortgagee may
elect, to the payment of the Obligations. Mortgagor shall be
and remain liable to Mortgagee for any difference between the
net proceeds of sale and the amount of the Obligations until
all of the Obligations have been paid in full.
8.9 Discontinuance of Proceedings. If Mortgagee
shall have proceeded to enforce any right under any Loan
Document and such proceedings shall have been discontinued or
abandoned for any reason, then except as may be provided in
any written agreement between Mortgagor and Mortgagee
providing for the discontinuance or abandonment of such
proceedings, Mortgagor and Mortgagee shall be restored to
their former positions and the rights, remedies and powers of
Mortgagee shall continue as if no such proceedings had been
instituted.
8.10 Mortgagee's Actions. Mortgagee may, at any
time without notice to any Person and without consideration,
do or refrain from doing any or all of the following actions,
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and neither the Mortgagor, any Guarantor, any endorser, co-
maker, surety or guarantor of the Obligations, nor any other
Person (hereinafter in this Section 8.10 collectively referred
to as the "Obligor") now or hereafter liable for the payment
and performance of the Obligations shall be relieved from the
payment and performance thereof, unless specifically released
in writing by Mortgagee: (a) renew, extend or modify the
terms of the Note, this Mortgage, the Guaranty and the other
Loan Documents, or any of them; (b) forbear or extend the time
for the payment or performance of any or all of the
Obligations; (c) apply payments by any Obligor to the
reduction of the unpaid Obligations in such manner, in such
amounts, and at such times and in such order and priority as
Mortgagee may see fit; (d) release any Obligor; (e) substitute
or release in whole or in part the Mortgaged Property or any
other collateral or any portion thereof now or hereafter held
as security for the Obligations without affecting, disturbing
or impairing in any manner whatsoever the validity and
priority of the lien of this Mortgage upon the Mortgaged
Property which is not released or substituted, or the validity
and priority of any security interest of the Mortgagee in such
other collateral which is not released or substituted;
(f) subordinate the lien of this Mortgage or the lien of any
other security interest in any other collateral now or
hereafter held as security for the Obligations; (g) join in
the execution of a plat or replat of the Land; (h) join in and
consent to the filing of a declaration of condominium or
declaration of restrictive covenants regarding all or any part
of the Land; (i) consent to the granting of any easement on
the Land; and (j) generally deal with any Obligor or any other
party as Mortgagee may see fit.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Regulation of Mortgagee.
Mortgagee is subject to various Governmental Authorities and
the laws, rules and regulations enacted, adopted and
promulgated by them. To the extent that Mortgagee's authority
to perform its obligations (if any) under this Mortgage, now
or hereafter, may be limited or regulated by such Governmental
Authorities, Mortgagee is hereby excused from such
performance.
9.2 Mortgagee's Failure to Perform. If Mortgagee
fails to perform its obligations (if any) under this Mortgage
(except to the extent excused therefrom as provided in Section
9.1 above), Mortgagor shall notify Mortgagee in writing (the
"Notice") within thirty (30) days after Mortgagor's obtaining
knowledge of such failure. Each such Notice shall describe in
detail the act or event constituting the non-performance by
Mortgagee. Mortgagee shall have thirty (30) days after its
receipt of the Notice to cure any such failure to perform,
unless such cure can not be accomplished using reasonable
efforts within said thirty (30) day period, in which case
Mortgagee shall have such additional time as may be necessary,
using reasonable efforts, to cure such non-performance (the
"Mortgagee Cure Period").
9.3 Mortgagor's Rights and Remedies. The giving of
the Notice and the expiration of the Mortgagee Cure Period
shall be conditions precedent to any right of the Mortgagor to
bring an action against Mortgagee. Mortgagor hereby expressly
agrees that its sole remedy against Mortgagee in any such
action shall be that of specific performance.
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ARTICLE X
MISCELLANEOUS
10.1 Maximum Rate of Interest. Nothing contained
herein, in the Note, or in any other Loan Document, or the
Commitment, or in any instrument or transaction related
thereto, shall be construed or so operate as to require the
Mortgagor or any person liable for the payment of the Loan
made pursuant to the Note, or liable for the payment of any
Obligations, to pay interest, or any charge in the nature of
interest, in an amount or at a rate which exceeds the maximum
rate of interest allowed by applicable law, as amended from
time to time. Should any interest or other charges in the
nature of interest received by Mortgagee or paid by the
Mortgagor or any parties liable for the payment of the Loan
made pursuant to the Note, or liable for the payment of any
Obligations, exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, then such excess
sum shall be credited against the principal balance of the
Note or the balance of the other Obligations, as applicable,
unless the Mortgagor or such other parties liable for such
payments, as applicable, shall notify the Mortgagee, in
writing, that the Mortgagor or such other party elects to have
such excess sum returned to it forthwith, it being the intent
of the parties hereto that under no circumstances shall the
Mortgagor or any parties liable for any of the aforesaid
payments be required to pay interest in excess of the maximum
rate of interest allowed by applicable law, as amended from
time to time. The Mortgagee may, in determining the maximum
rate of interest allowed under applicable law, as amended from
time to time, take advantage of any state or federal law, rule
or regulation in effect from time to time which may govern the
maximum rate of interest which may be reserved, charged or
taken.
10.2 Continuing Agreement. This Mortgage and all of
the Mortgagor's representations, warranties and covenants
herein, Mortgagee's security interest in the Mortgaged
Property and all of the rights, powers and remedies of
Mortgagee hereunder shall continue in full force and effect
until all of the Obligations have been paid and performed in
full; until Mortgagee has no further obligation to make any
advances under the Loan; and until Mortgagee, upon the request
of the Mortgagor, has executed a satisfaction of mortgage.
Furthermore, if for any reason no Obligations are owing,
notwithstanding such occurrence, this Mortgage shall remain
valid and in full force and effect as to subsequent
Obligations, so long as Mortgagee has not executed a
satisfaction of mortgage; provided, however, that the
indemnifications set forth in Article V of this Mortgage shall
survive the satisfaction of this Mortgage.
10.3 Survival of Warranties and Covenants. The
warranties, representations, covenants and agreements set
forth in this Mortgage shall survive the making of the Loan
and the execution and delivery of the Note, and shall continue
in full force and effect until all of the Obligations shall
have been paid and performed in full.
10.4 No Representation By Mortgagee. By accepting
or approving anything required to be observed, performed or
fulfilled, or to be given to Mortgagee, pursuant to this
Mortgage, or the other Loan Documents, or the Commitment,
including, but not limited to, any officer's certificate,
balance sheet, statement, survey or appraisal, Mortgagee shall
not be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not be or constitute any
warranty or representation with respect thereto by Mortgagee.
10.5 Notice. All notices, demands, requests and
other communications required under this Mortgage may be given
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orally (either in person or by telephone if confirmed in
writing within three (3) days thereafter), by telex, telegram,
or telecopy, or in writing delivered by hand or mail and shall
be conclusively deemed to have been received if delivered or
attempted to be delivered by United States first class mail,
return receipt requested, postage prepaid, addressed to the
party for whom it is intended at its address set forth in the
introduction to this Mortgage. Any party may designate a
change of address by written notice to the other party,
received by such other party at least ten (10) days before
such change of address is to become effective.
10.6 Mortgagee's Right to Pay and Perform. If
Mortgagor shall fail to duly pay or perform any of the
Obligations required by this Mortgage, then at any time
thereafter without notice to or demand upon Mortgagor, and
without waiving or releasing any right, remedy, or power of
Mortgagee, and without releasing any of the Obligations or any
Event of Default, Mortgagee may pay or perform such Obligation
for the account of and at the expense of Mortgagor, and shall
have the right to enter and to authorize others to enter upon
the Mortgaged Property for such purpose and to take all such
action thereon and with respect to the Mortgaged Property as
may be necessary or appropriate for such purpose. All
payments made and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee, together with interest thereon at the Default
Rate from the date incurred by Mortgagee shall be secured by
this Mortgage and shall be due and payable by Mortgagor
immediately, whether or not there be notice, demand, an
attempt to collect same, or suit pending.
10.7 Covenants Running With the Land. All covenants
contained in this Mortgage shall be binding on the Mortgagor
and shall run with the Land.
10.8 Successors and Assigns. All of the terms of
this Mortgage shall apply to and be binding upon, and inure to
the benefit of, the heirs, devisees, personal representatives,
successors and assigns of Mortgagor and Mortgagee,
respectively, and all persons claiming under or through them.
10.9 Invalidity.
(a) If any one or more of the provisions
contained in this Mortgage is declared or found by a court of
competent jurisdiction to be invalid, illegal, or
unenforceable, such provision or portion thereof shall be
deemed stricken and severed and the remaining provisions
hereof shall continue in full force and effect.
(b) If any one or more of the Obligations is
declared or found by a court of competent jurisdiction to be
invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining Obligations shall continue in
full force and effect.
10.10 Modification. No agreement unless in writing
and signed by an authorized officer of Mortgagee and no course
of dealing between the parties hereto shall be effective to
change, waive, terminate, modify, discharge, or release in
whole or in part any provision of this Mortgage. No waiver of
any rights or powers of Mortgagee or consent by it shall be
valid unless in writing signed by an authorized officer of
Mortgagee and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
10.11 Applicable Law. This Mortgage shall be
construed, interpreted, enforced and governed by and in
accordance with the laws of the State of Florida (excluding
the principles thereof governing conflicts of law), and
federal law, in the event federal law permits a higher rate of
interest than Florida law.
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10.12 Replacement of Note. Upon receipt of
evidence reasonably satisfactory to Mortgagor of the loss,
theft, destruction or mutilation of the Note, or any amendment
or modification thereto, including without limitation any
renewal note or additional note, and in the case of any such
loss, theft, or destruction, upon delivery of any indemnity
agreement, reasonably satisfactory to Mortgagor or, in the
case of any such mutilation, upon surrender of such mutilated
note, Mortgagor will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the Note
and dated as of the date of the Note and upon such execution
and delivery all references in any of the Loan Documents to
the Note shall be deemed to refer to the replacement Note.
10.13 Strict Performance. It is specifically
agreed that time is of the essence as to all matters provided
for in this Mortgage and that no waiver of any Obligation
hereunder or secured hereby shall at any time thereafter be
held to be a waiver of the Obligations.
10.14 Joint and Several Liability. If more
than one Person executes this Mortgage, each is and shall be
jointly and severally liable hereunder; and if Mortgagor is a
general partnership, then all partners in Mortgagor (and if
Mortgagor is a limited partnership, then all general partners
in Mortgagor) shall be jointly and severally liable hereunder,
notwithstanding any contrary provision in the partnership laws
of the State of Florida.
10.15 MANDATORY ARBITRATION. ANY CONTROVERSY
OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT
LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS MORTGAGE
OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED
BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
MORTGAGE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM
TO WHICH THIS MORTGAGE APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN TAMPA, FLORIDA AND ADMINISTERED BY ENDISPUTE,
INC., d/b/a J.A.M.S./ENDISPUTE WHO WILL APPOINT AN ARBITRATOR;
IF J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE,
BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP
TO AN ADDITIONAL 60 DAYS.
(b) RESERVATIONS OF RIGHTS. NOTHING IN THIS
MORTGAGE SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS MORTGAGE; OR (ii) BE A WAIVER BY THE
MORTGAGEE OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC.
91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT
THE RIGHT OF THE MORTGAGEE HERETO (A) TO EXERCISE SELF HELP
REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR
(C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE
APPOINTMENT OF A RECEIVER. THE MORTGAGEE MAY EXERCISE SUCH
SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO
THIS MORTGAGE. AT MORTGAGEE'S OPTION, FORECLOSURE UNDER A
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DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE
FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF
TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF TRUST
OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF
ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
10.16 No Cross-Collateralization.
Notwithstanding anything contained in this Mortgage or the
Loan Documents to the contrary, Mortgagor and Mortgagee do not
intend for the Loan to be cross-collateralized with that
certain loan which is the subject of the Amended and Restated
Revolving Credit Agreement between Mortgagor and Mortgagee
dated January 19, 1995, as amended on even date herewith;
provided, however, that said loans are intended to be cross-
defaulted.
IN WITNESS WHEREOF, Mortgagor has executed this
instrument as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
PLASMA-THERM, INC., a Florida
corporation
/s/Xxxx X. Xxxxxxxxx
(Signature of Witness) By: /s/Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxxx
(Print Name of Witness) President
/s/Xxxxx X. Xxxxxxxx
(Signature of Witness) (CORPORATE SEAL)
Xxxxx X. Xxxxxxxx
(Print Name of Witness)
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by XXXXXX X. XXXXXXXXX, as the
President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me or
has produced drivers license
as identification.
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
Xxxxx X. Xxxxxxx
My Commission # CC483663
Expires
August 3, 1999
Bonded thru Xxxx Xxxx Insurance
Inc.
Prpared By: NationsBank of
Florida
000 X. Xxxxxx Xxxxx
Xxxxx, XX
Return to: Lawyers Title Ins.
Corp.
00000 Xxxxxxxxxx
Xxxxxx Xx.
Xxxxx, XX 00000
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EXHIBIT "A"
LEGAL DESCRIPTION
Lots 28, 29, 30, 31 and the Northerly 130 feet of
Lot 27, all in Block C of METROPOINTE COMMERCE PARK
PHASE II, according to the map or plat thereof
recorded in Plat Book 103, pages 25 and 26, Public
Records of PINELLAS County, Florida.
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