EXHIBIT 10.15
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made as of the ____
day of September, 1997, by EASTGROUP PROPERTIES, L.P. ("Mortgagor") to and in
favor of MERIDIAN INDUSTRIAL TRUST, INC. ("Mortgagee"):
W I T N E S S E T H :
RECITATION OF FACTS. Mortgagor, as borrower, is obligated to the Mortgagee
pursuant to a promissory note of even date in principal amount of $18,300,000.00
(the "Note"). The Note and all present and future obligations of Mortgagor to
Mortgagee of whatever nature, liquidated or contingent, incurred in connection
with the Note and this Mortgage, as they may be modified or extended, are herein
called the "Obligation."
NOW, THEREFORE, to secure the payment and performance of all covenants and
conditions in the Obligation and in order to charge the properties, interests
and rights described below with such payment and performance, Mortgagor does
hereby mortgage, sell, pledge, grant a security interest in, and assign to
Mortgagee:
THE MORTGAGED PROPERTY
(A) All of the land in the County of Xxxxx, State of Florida, described on
Exhibit A, together with all the improvements now or later erected on that land
and all fixtures now or later attached to that land, together with all
tenements, hereditaments, easements, crops, trees, oil, gas and minerals,
rights, powers, privileges, immunities and appurtenances now or later belonging
to or pertaining in any way to that land and the reversions, remainders and all
right, title, interest, homestead, right of dower, separate estate, property,
possession and claim whatsoever in law or equity of Mortgagor of, in and to such
land unto Mortgagee in fee simple.
(B) All equipment, fixtures and other tangible and intangible personal
property of all types in which Mortgagor has an interest and now or later
affixed to or located on or used in connection with the land described in
paragraph (A) above and all property described on
Exhibit B hereto.
(C) All rents, issues, profits, leases, oil, gas and mineral deeds and
leases, revenue, accounts, proceeds, royalties, income and other benefits now or
later derived from the property described in paragraph (A) and (B) above which
Mortgagor hereby assigns to Mortgagee; provided, however, that permission is
hereby given to Mortgagor, so long as no default has occurred under this
Mortgage, to collect, receive and use such benefits from the property as they
become due and payable, but not in advance thereof.
(D) Everything referred to in paragraphs (A), (B) and (C) above and all
replacements, proceeds and products of those assets and any additional property
hereafter acquired by Mortgagor and subject to the lien of this Mortgage or any
part of those properties is herein referred to as the "Mortgaged Property."
It is the specific intention of the parties to this Mortgage that this
Mortgage shall continue in full force and effect until satisfied by a written
satisfaction executed and delivered by Mortgagee to Mortgagor. The lien of this
Mortgage shall continue to secure future Obligations, including advances or
other extensions of credit to Mortgagor, notwithstanding that there may be no
present outstanding balance of the Obligation or the Obligation may have been
reduced to zero, whether under a revolving credit arrangement or otherwise, it
being the intent of this Mortgage to secure mandatory and optional future
advances and other extensions of credit.
Mortgagor covenants and agrees with Mortgagee as follows:
1. COMPLIANCE WITH OBLIGATION AND MORTGAGE; WARRANTY OF TITLE. Mortgagor
shall comply with all provisions of the Obligation, this Mortgage and of every
other instrument evidencing or securing the Obligation and will promptly pay to
Mortgagee the principal with interest thereon and all other sums required to be
paid by Mortgagor under the Obligation and pursuant to the provisions of this
Mortgage and of every other instrument evidencing or securing the Obligation.
Mortgagor hereby warrants to Mortgagee, and shall continue to warrant to
Mortgagee so long as this Mortgage is in effect that (i) Mortgagor has good and
marketable title to the Mortgaged Property real estate in fee simple, (ii) the
Mortgage lien and security interests created by this Mortgage are first liens
and security interests on the Mortgaged Property, superior to all other liens or
security interests on the Mortgaged Property, (iii) Mortgagor has the full power
and authority to, and has obtained all necessary consents and approvals to,
execute and deliver this Mortgage and carry out the terms hereof,
(iv) this Mortgage is valid and enforceable in accordance with its terms,
subject to the rights of creditors generally under bankruptcy and insolvency
laws, and judicial discretion in the enforcement of equitable remedies,
(v) Mortgagor shall protect and defend the Mortgage liens and security interests
created hereby against the claims of all other parties, and (vi) no part of the
Mortgaged Property is homestead property of any person named as Mortgagor.
2. TAXES; LIENS.
(a) Mortgagor shall pay promptly, when due, and shall promptly
deliver to Mortgagee receipts therefor, all taxes, assessments, rates, dues,
charges, fees, impositions, obligations and encumbrances of every kind
whatsoever now or hereafter imposed, levied or assessed upon or against the
Mortgaged Property or any part thereof, or upon or against this Mortgage or the
indebtedness or other sums secured hereby, or upon or against the interest of
Mortgagee in the Mortgaged Property, as well as all income taxes, assessments
and other governmental charges levied or imposed by any taxing authority upon or
against Mortgagor, the Mortgaged Property or any part thereof and any charge
which, if unpaid, would become a lien or charge upon the Mortgaged Property.
(b) Mortgagor shall not permit any mechanics', laborer's,
materialmen's, statutory or other lien to be created or to remain a lien upon
any of the Mortgaged Property, unless the same is removed or bonded off within
thirty (30) days after filing thereof.
(c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee each month
during the term of this Mortgage, an amount equal to one-twelfth (1/12) of the
yearly taxes and assessments as estimated by Mortgagee to be sufficient to
enable Mortgagee to pay at least thirty (30) days before they become due all
taxes, assessments and other similar charges against the Mortgaged Property.
Such deposits shall not be trust funds, but may be commingled with the general
funds of Mortgagee, and no interest shall be payable in respect thereof. Upon
demand by Mortgagee, Mortgagor shall deliver to Mortgagee such additional monies
as are required to pay such taxes, assessments and similar charges. In the
event of a default under any of the terms, covenants and conditions in the
Obligation or this Mortgage, Mortgagee may apply such deposits to the reduction
of the sums secured hereby.
3. INSURANCE.
(a) Mortgagor shall keep any improvements on the Mortgaged Property
and all personalty which is Mortgaged Property insured under standard fire and
extended coverage policies for the full replacement value of the Mortgaged
Property and for such other amounts, against such other risks and upon such
terms and for such periods as may be reasonably required by Mortgagee.
Mortgagor shall pay promptly, when due, any premiums on such
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insurance. All insurance shall be carried with companies approved by Mortgagee
and shall contain New York standard mortgagee clauses and waivers of subrogation
in favor of and in form acceptable to Mortgagee. All such policies shall show
Mortgagee as an additional insured and shall not be cancelable without thirty
(30) days prior written notice to Mortgagee. Mortgagor shall furnish Mortgagee
with copies of all such policies and renewals. In the event of loss, Mortgagor
shall give immediate notice by mail to Mortgagee and Mortgagee may make proof of
loss if not made promptly by Mortgagor. Mortgagor hereby authorizes each
insurance company to make payments for such loss directly to Mortgagee instead
of to Mortgagor or Mortgagor and Mortgagee jointly. Mortgagee is hereby
authorized, at its option, to settle and compromise any claims, awards, damages,
rights of action and proceeds, and any other payment or relief under any
insurance policy. In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment of the Obligation
secured hereby, all right, title and interest of Mortgagor in and to any
insurance policies then in force shall pass to the purchaser or grantee.
(b) Insurance proceeds or any part thereof may be applied by
Mortgagee at its option, after deducting therefrom all of its expenses including
attorneys' fees, either to the reduction of the amounts due on the Obligation or
repair of the property damaged; provided however, that if Mortgagee requires
Mortgagor to rebuild or restore the Mortgaged Property following a casualty, as
provided elsewhere in this Mortgage, Mortgagee shall make available to
Mortgagor, all insurance proceeds received as a result of such casualty, for
Mortgagor's use in connection with such repairs or restoration. Mortgagee may
place reasonable restrictions and requirements upon the disbursement of all such
funds in order to insure their proper application to defray costs of repair and
reconstruction, including without limitation, provisions for retainage and
provisions requiring Mortgagor to escrow any additional amounts in excess of
available insurance proceeds required for completion of such repairs or
restoration.
(c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee on a monthly
basis an amount equal to one-twelfth (1/12) of the yearly premiums for all
insurance. Such deposits shall not be trust funds, but may be commingled with
the general funds of Mortgagee, and no interest shall be payable in respect
thereof. Upon demand by Mortgagee, Mortgagor shall deliver to Mortgagee such
additional monies necessary to pay such premiums when due. In the event of
default under any of the terms, covenants and conditions in the Obligation or
this Mortgage, Mortgagee may apply to the reduction of the sums secured hereby,
in such manner as Mortgagee shall determine, any amount under this paragraph
remaining to Mortgagor's credit and any return premium received from
cancellation of any insurance policy by Mortgagee upon foreclosure of this
Mortgage.
4. CONDEMNATION. If the Mortgaged Property or any part thereof shall be
damaged
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or taken through condemnation (which term shall include any damage or taking by
any governmental authority or any other authority authorized by the laws of the
State of Florida or the United States of America to so damage or take, and any
transfer by private sale in lieu thereof) Mortgagee shall be entitled to all
awards, damages, claims, rights of action and proceeds of, or on account of any
damage or taking through condemnation and is hereby authorized, at its option,
to commence, appear in and prosecute, in its own or Mortgagor's name, any action
or proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. All such awards, damages, claims, rights of
action and proceeds, and any other payments or relief, and the right thereto,
are hereby assigned by Mortgagor to Mortgagee and Mortgagee after deducting
therefrom all its expenses including attorneys' fees may release to Mortgagor
any monies so received by it without affecting the lien of this Mortgage or may
apply the same, in such manner as Mortgagee shall determine, to the reduction of
the sums secured hereby; provided however, that if Mortgagee requires Mortgagor
to repair or restore damages to the remaining portion of the Mortgaged Property
not so taken, it shall make condemnation proceeds available to Mortgagor for
Mortgagor's use in defraying the costs thereof, subject to the same restrictions
as allowed to Mortgagee pursuant to paragraph 3(b) above with respect to
insurance proceeds. Any balance of such monies then remaining shall be paid to
Mortgagor. Mortgagor agrees to execute such further assignments of any awards,
damages, claims, rights of action and proceeds as Mortgagee may require.
5. CARE OF MORTGAGED PROPERTY. Mortgagor shall not cut or remove any
material amount of timber, sever, remove or grant any rights in any oil, gas,
minerals, limerock, phosphate, soil or other materials or remove or demolish any
building or other property forming a part of the Mortgaged Property without the
prior written consent of Mortgagee. Mortgagor shall not permit, commit or
suffer any waste, impairment or deterioration of the Mortgaged Property or any
part thereof, and shall keep the same and improvements thereon in good condition
and repair; including without limitation, any repairs or restoration required as
a result of casualty or condemnation. Mortgagor shall notify Mortgagee in
writing within five (5) days of any damage or impairment of the Mortgaged
Property. Mortgagor shall comply with all laws and regulations applicable to
the Mortgaged Property, including, without limitation, all zoning,
environmental, land use and toxic or hazardous waste disposal laws. Mortgagee
may, at Mortgagee's discretion, have the Mortgaged Property inspected at any
time and Mortgagor shall pay all reasonable costs incurred by Mortgagee in
executing such inspection.
6. MORTGAGEE'S RIGHT TO MAKE CERTAIN PAYMENTS. In the event Mortgagor
fails to complete any improvements to the Mortgaged Property, pay or discharge
the taxes, assessments, levies, liabilities, obligations (including obligations
under any leases) or encumbrances affecting the Mortgaged Property, or fails to
keep the Mortgaged Property insured or to deliver the policies, premiums paid,
or fails to repair the Mortgaged Property as
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herein agreed, or fails to make any payment required under any other mortgage or
security agreement relating to the Mortgaged Property (whether or not the
existence of such mortgage or security agreement is permitted by this Mortgage),
or fails to take any actions reasonably necessary to preserve the value of the
Mortgaged Property, or Mortgagor otherwise defaults in any covenant herein or in
any loan agreement or other document evidencing or securing the Obligation,
Mortgagee may at its option, without waiving or curing any default by Mortgagor,
expend funds to complete such improvements, pay or discharge any taxes,
assessments, levies, or liabilities, pay off or cure any default under
obligations and encumbrances, procure and pay for insurance or make and pay for
repairs as is deemed necessary or appropriate by Mortgagee, otherwise perform
any action required to be performed by Mortgagor and take such action to
preserve the value of the Mortgaged Property. Mortgagee shall have no
obligation on its part to determine the validity or necessity of any payment and
any such payment shall not waive or affect any option, lien, equity or right of
Mortgagee under or by virtue of this Mortgage. The full amount of each and
every such payment shall be immediately due and payable and shall bear interest
from the date thereof until paid at the Default Rate, as defined below, and
together with such interest, shall be secured by the lien of this Mortgage.
Nothing herein contained shall be construed as requiring Mortgagee to advance or
expend monies for any of the purposes mentioned in this paragraph. No such
payments shall be deemed to waive or cure any default hereunder.
7. PAYMENT OF EXPENSES. Mortgagor shall pay all of the costs, advances,
charges and expenses, including reasonable attorneys' fees, disbursements and
cost of abstracts of title, documentary and intangibles taxes (and any penalties
or interest with respect thereto) incurred in connection with the Obligation
(including future advances) or this Mortgage or the enforcement thereof or paid
at any time by Mortgagee due to the failure on the part of Mortgagor promptly
and fully to perform, comply with and abide by each and every stipulation,
agreement, condition and covenant of the Obligation and this Mortgage. Without
limiting the generality of the foregoing, the Mortgagee is specifically
authorized to advance funds necessary to complete the construction of
improvements on the Mortgaged Property. Such costs, charges and expenses shall
be immediately due and payable, whether or not there be notice, demand, attempt
to collect or suit pending. The full amount of each and every such payment made
by Mortgagee shall bear interest from the date thereof until paid at the Default
Rate, as hereinafter defined. All such costs, charges and expenses so incurred
or paid, together with such interest, shall be secured by the lien of this
Mortgage and any other instrument securing the Obligation. No such payments
shall be deemed to waive or cure any default hereunder. The provisions of this
paragraph shall survive the payment of the Obligation and satisfaction of this
Mortgage.
8. AFTER ACQUIRED PROPERTY. The lien of this Mortgage will automatically
attach, without further act, to all after acquired property of whatever kind
located in, on or contiguous to, or attached to, or used or intended to be used
in connection with or in the operation of the
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Mortgaged Property.
9. ADDITIONAL DOCUMENTS. At all times that this Mortgage is in effect,
upon Mortgagee's request, Mortgagor shall at Mortgagor's expense make, execute
and deliver to Mortgagee any and all such further mortgages, financing
statements, instruments of further assurance, certificates and other documents
as Mortgagee may consider reasonably necessary or desirable in order to
effectuate, complete, perfect, continue or preserve the obligations of Mortgagor
under the Obligation and this Mortgage, and the lien of this Mortgage as a
paramount first lien upon all the Mortgaged Property. Upon any failure by
Mortgagor to do so, Mortgagee may make, execute, record, file, re-record or
refile any and all such mortgages, instruments, certificates and documents for
and in the name of Mortgagor. Mortgagor hereby irrevocably appoints Mortgagee
as agent and attorney-in-fact of Mortgagor to do all things necessary to
effectuate or assure compliance with this Mortgage.
10. EVENT OF DEFAULT. Any one of the following shall constitute an event
of default:
(a) Failure by Mortgagor to pay as and when the same are due and
payable, any principal or interest due under the Obligation, or any deposits for
taxes and assessments or insurance premiums due hereunder, or any other sums to
be paid by Mortgagor hereunder or under any loan agreement or other instrument
evidencing or securing the Obligation, which failure is not cured within ten
(10) days after the due date.
(b) Failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Obligation, this Mortgage, or any loan
agreement or other instrument now or hereafter evidencing or securing the
Obligation for a period of thirty (30) days after Mortgagee gives written notice
to Mortgagor specifying the breach.
(c) If Mortgagor or any guarantor or endorser of the Obligation:
(i) files a voluntary petition in bankruptcy, or (ii) files any petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
liquidation, dissolution or similar relief for itself under any law relating to
bankruptcy, insolvency or other relief for debtors, or (iii) seeks or consents
to or acquiesces in the appointment of any trustee, receiver, master or
liquidator of itself or of any substantial part of the Mortgaged Property or of
the rents, revenues, issues, earnings, profits or income thereof, or (iv) any
such trustee, liquidator, receiver or master is appointed, or a bankruptcy or
other insolvency proceeding is brought against any such person without the prior
written consent of Mortgagee, which appointment or proceeding shall remain
unvacated and unstayed for an aggregate of sixty (60) days whether or not
consecutive.
(d) Any breach of any warranty or material untruth of any
representation of Mortgagor or any guarantor or endorser of the Obligation,
contained in the Obligation, this Mortgage or any loan agreement or other
instrument evidencing, securing or given in
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connection with the Obligation.
(e) Any default under any instrument guaranteeing or endorsing the
Obligation or under any other mortgage or security agreement encumbering all or
any part of the Mortgaged Property whether prior to or junior to this Mortgage
and whether or not the existence of such lien is permitted hereby, if such
default continues in effect for more than thirty (30) days after written notice
thereof to the Mortgagor; provided that no notice and grace period shall be
required to be given if any action to foreclose or sell any Mortgaged Property
is taken by any third party.
(f) If this Mortgage, the Obligation or any instrument evidencing,
securing, endorsing or guaranteeing the Obligation shall be invalid or
unenforceable in whole or material part or any guarantor, endorser or obligor
under an instrument securing the Obligation shall terminate or repudiate its
obligations.
(g) Any default by Mortgagor with respect to any material obligations
now or hereafter owed by such person to Mortgagee, including without limitation,
obligations owed pursuant to a Note and Mortgage of even date made by Mortgagor
to Mortgagee evidencing and securing indebtedness in the principal amount of
$26,700,000.
11. ACCELERATION. If an event of default shall have occurred, Mortgagee
may declare the outstanding principal amount of the Obligation and the interest
accrued thereon, and all other sums secured hereby, to be due and payable
immediately. Upon such declaration all principal and interest and other sums
shall immediately be due and payable without demand or notice. If any part of
the Obligation is payable on demand, nothing herein shall be deemed to limit the
right of the holder of such Obligation to demand payment.
12. REMEDIES AFTER DEFAULT. Upon an event of default, Mortgagee may
proceed by suit or suits at law or in equity or by any other appropriate
proceeding or remedy to take any one or more of the following actions:
(a) enforce payment of the Obligation or the performance of any term hereof or
any other right; (b) foreclose this Mortgage and sell, as an entirety or in
separate lots or parcels, the Mortgaged Property under the judgment or decree of
a court or courts of competent jurisdiction; (c) collect and, at its option,
apply to the Obligation, all rents, issues, profits, accounts, proceeds,
revenue, income and other benefits from the Mortgaged Property; (d) obtain the
appointment of a receiver to enter upon and take possession of the Mortgaged
Property and to collect all rents, issues, profits, revenue, accounts, proceeds,
income and other benefits thereof and apply the same as a court may direct; and
(e) pursue any other remedy available to it including, but not limited to, all
remedies available under the Uniform Commercial Code as in effect from time to
time in Florida ("UCC"). Mortgagee shall take action either by such proceedings
or by the exercise of its power with respect to entry or taking possession, or
both, as Mortgagee may determine, and Mortgagor irrevocably
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appoints Mortgagee as its attorney-in-fact to take any such actions and to
deliver deeds, bills of sale and other instruments of conveyance relating to any
Mortgaged Property as may be permitted by law. The Mortgagee is hereby
irrevocably appointed attorney-in-fact for the Mortgagor with the power to
endorse or transfer on behalf of the Mortgagor any checks or other instruments
received as proceeds, profits, rents or revenues from the Mortgaged Property.
13. NO WAIVER. No delay or omission of Mortgagee or of any holder of the
Obligation to exercise any right, power or remedy accruing upon any event of
default shall exhaust or impair any such right, power or remedy or shall be
construed to waive any event of default or to constitute acquiescence therein.
14. NON-EXCLUSIVE REMEDIES. No right, power or remedy conferred upon or
reserved to Mortgagee by the Obligation, this Mortgage, or any other instrument
now or hereafter evidencing or securing the Obligation is exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or under the Obligation or any loan agreement or other
instrument evidencing or securing the Obligation, now or hereafter existing at
law, in equity or by statute. No action taken by Mortgagee shall be deemed an
election of remedies.
15. SUCCESSORS AND ASSIGNS BOUND. Whenever one of the parties hereto is
named or referred to herein, the heirs, successors and assigns of such party
shall be included and all covenants and agreements contained in this Mortgage,
by or on behalf of Mortgagor or Mortgagee, shall bind and inure to the benefit
of their respective heirs, successors and assigns, whether or not so expressed.
All references herein to Mortgagee shall mean the holder of the Note from time
to time.
16. SEPARATE PROVISIONS. In the event that any of the covenants,
agreements, terms or provisions contained in the Obligation, this Mortgage or
any other instrument securing the Obligation shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained herein and in the Obligation and any
other instrument securing the Obligation shall be in no way affected, prejudiced
or disturbed thereby.
17. ATTORNEYS' FEES. The term "attorneys' fees" as used in this Mortgage
includes any and all reasonable legal fees paid or incurred by Mortgagee of
whatever nature and whether or not incurred at or before trial, on appeal, in
bankruptcy proceedings or administrative actions.
18. FUTURE ADVANCES. [Intentionally deleted]
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19. OBLIGATION OF MORTGAGOR. Mortgagor shall pay the cost of releasing or
satisfying this Mortgage of record.
20. NO SALE, JUNIOR LIEN OR OTHER TRANSFER. It is understood and agreed
by Mortgagor that as part of the inducement to Mortgagee to make the extension
of credit evidenced by the Obligation, Mortgagee has considered and relied on
the reliability of Mortgagor and Mortgagor's ownership and management of the
Mortgaged Property, and the fact that there are no other liens on the Mortgaged
Property. To induce such reliance, Mortgagor covenants and agrees not to
directly or indirectly sell, convey, transfer, mortgage, or otherwise dispose of
any interest in or any part of the Mortgaged Property without the prior written
consent of Mortgagee to be given or withheld in Mortgagee's sole discretion, and
any such sale, conveyance, transfer or mortgage made without Mortgagee's prior
written consent shall be void. If any person should obtain an interest in all
or any part of the Mortgaged Property pursuant to the execution or enforcement
of any lien, security interest or other right, whether superior, equal or
subordinate to this Mortgage or the lien hereof, such event shall be deemed to
be a transfer by Mortgagor and an event of default hereunder. If Mortgagor is
other than an individual, any direct or indirect sale, assignment, pledge,
transfer, grant of a security interest in or other disposition of more than 25%
of the legal or equitable interests (which percentage shall be calculated, at
Mortgagee's option, based upon value, voting interests, capital or income
interests) in the Mortgagor within any thirty-six (36) month period after the
date of this Mortgage shall constitute a transfer of the Mortgaged Property in
violation of this section. Transfer or other disposition by merger,
consolidation or operation of law (other than transfers upon death) shall be
considered "transfers" within the meaning of this Paragraph 20. The provisions
of this section shall be in addition to and not in lieu of any provisions in any
loan agreement or other instrument relating to the Obligation restricting change
of control of Mortgagor or transfer of the Mortgaged Property.
21. PARTIAL RELEASES. Mortgagee may, at its sole discretion, but shall
not be required to, release portions of the Mortgaged Property on such terms and
conditions as it deems acceptable and any person having an interest in the
Mortgaged Property takes such interest subject to such discretionary releases.
22. DEFAULT RATE. The Default Rate shall be the highest rate of interest
after maturity contained in any note or other evidence of any portion of the
Obligation, but if none is stated then it shall be four percent (4%) per annum
in excess of the rate stated in any note or other evidence of any portion of the
Obligation which would have been applicable had such Obligation not matured or
no default had occurred.
23. AMENDMENT OF DOCUMENTS. Mortgagor agrees that the Obligation and any
other document or instrument evidencing, guaranteeing or securing the Obligation
may be amended,
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restated, renewed, extended, increased, decreased or otherwise changed by the
parties thereto and any such changes, or the release or modification of any
security for or guaranty or endorsement of the Obligation, or any forbearance,
indulgence, delay or waiver in enforcing the Obligation or any instrument
evidencing, securing or guaranteeing the Obligation, or any other action, delay
or omission of Mortgagee or other person in connection with the Obligation, any
such instruments or this Mortgage shall not in any way diminish the obligations
of Mortgagor or the liens granted hereunder. Neither the bankruptcy of the
Mortgagor nor any discharge of, or defense against payment of, the Obligation
(except the defense of payment in full) shall affect the lien of this Mortgage
or the rights of the Mortgagee. The Mortgagor waives presentment, protest,
notice of protest and notice of dishonor and any and all other notices and
requirements otherwise necessary to bind the Mortgagor.
24. USURY. Notwithstanding anything contained in this instrument or in
any other instrument evidencing, describing or securing the Obligation to the
contrary, in no event will the interest due hereunder or under the Obligation
exceed the maximum amount allowed by law from time to time while any part of the
indebtedness or Obligation secured hereby is outstanding, and in the event any
amount in excess of the lawful maximum is charged by the Mortgagee or paid by
the Mortgagor, Mortgagor shall be entitled to an immediate refund of the amount
of such excess together with interest on such excess amount from the date paid
until reimbursed at the maximum lawful rate in effect at the time of the
overcharge.
25. TIME OF ESSENCE. Time shall be of the essence in the performance of
each and every one of the Mortgagor's obligations hereunder.
26. JOINT AND SEVERAL OBLIGATIONS. If more than one person is named as
Mortgagor, the obligations, agreements and representations herein shall be joint
and several. Any matter which is an event of default with respect to Mortgagor
shall be an event of default if it occurs with respect to any person named as
Mortgagor.
27. OTHER ENCUMBRANCES. If the Mortgaged Property is subject to other
encumbrances, Mortgagor shall not permit such encumbrances to secure more than
the amount presently so secured reduced from time to time by any presently
scheduled reductions in the amount secured and will not permit the principal
amount so secured from time to time to be increased through additional advances
or otherwise. The Mortgagor shall give immediate telephonic and written notice
to Mortgagee of any breach or default under any such instruments evidencing such
other encumbrances. The Mortgagor shall not permit the extension, amendment or
other modification of such other encumbrances without the prior written consent
of the Mortgagee. Upon the occurrence of a default under such encumbrance,
Mortgagee may, but shall not be required to cure such default, satisfy such
encumbrance or obtain release of all or any of the Mortgaged Property from such
encumbrance and any funds spent by Mortgagee in so doing shall be considered
future advances secured by this Mortgage. Any such payments
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shall not be deemed to cure any default hereunder.
28. NOTICES. Notices shall be given to the parties at the following
addresses or such other addresses as designated in writing from time to time:
If to Mortgagor: c/o EastGroup Properties
300 One Xxxxxxx Place
000 Xxxx Xxxxxxx Xx.
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx XX, President
If to Mortgagee: Meridian Industrial Trust, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Executive Vice President
29. LEASES, EASEMENTS, RESTRICTIONS.
(a) All leases of the Mortgaged Property shall contain an express
clause satisfactory to the Mortgagee subordinating the interest of the lessee to
this Mortgage and agreeing that, at the election of the Mortgagee, such lessee
will attorn to the Mortgagee or other person acquiring Mortgagor's title by
foreclosure or otherwise, notwithstanding such subordination. The Mortgagor
shall perform all its obligations as and when due under any leases of the
Mortgaged Property and, except in the ordinary course of business, agrees not to
modify or agree to the termination of any such lease or any guaranty or security
therefor, accept more than one month's advance rent under any such lease, or
waive any material right under any such lease or any guaranty or security
therefor (whether or not given the option to consent to such waiver in the lease
or guaranty).
(b) Mortgagor shall not grant or impose any covenants, restrictions
or easements affecting the Mortgaged Property without the prior written consent
of Mortgagee. The Mortgagor shall not amend or terminate, or waive any rights
under, any easements, restrictions or covenants affecting the Mortgaged Property
without the express written consent of the Mortgagee. The Mortgagee is hereby
granted the irrevocable right for itself or for Mortgagor to take any action
required of Mortgagor, as lessor, by any lease if the Mortgagor should fail to
do so and is irrevocably appointed as the Mortgagor's attorney-in-fact for such
purposes. Any amounts expended by Mortgagee in fulfilling the Mortgagor's
obligations shall bear interest at the Default Rate specified herein and shall
be secured by this Mortgage.
30. SECURITY AGREEMENT. This Mortgage is intended to be a "security
agreement" as defined in Section 9-105 of the UCC and the Mortgagor and
Mortgagee are "debtor" and
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"secured party" respectively, as such terms are defined in Section 9-105 of the
UCC. In addition to other rights granted herein, the Mortgagee shall have a
security interest in, and the right to set off, any money, deposits, securities
or other assets of any Mortgagor now or hereafter in the possession or control
of Mortgagee or its agents or correspondents for whatever reason or purpose,
including items in the process of collection.
31. PRINCIPAL OFFICE. The chief executive office (or principal residence
address if Mortgagor is an individual) of Mortgagor is at the address set forth
in Section 28. Mortgagor agrees to give at least thirty (30) days' prior
written notice to Mortgagee prior to moving its chief executive office or
residence address.
32. POWERS. All powers of attorney and other rights granted to Mortgagee
herein are coupled with an interest and are irrevocable.
33. CONSENTS. Unless otherwise specified, any approvals or consents of
the Mortgagee required herein may be given or withheld in the discretion of the
Mortgagee.
34. ENVIRONMENTAL CONDITION OF PROPERTY; INDEMNIFICATION.
(a) Mortgagor warrants and represents to Mortgagee after thorough
investigation that to the best of Mortgagor=s knowledge:
(i) The Mortgaged Property described herein is now and at all
times hereafter will continue to be in full compliance with all federal,
state and local environmental laws and regulations (collectively,
"Environmental Laws"), including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
Public Law Xx 00-000, 00 Xxxx. 0000, 00 X.X.X. Sections 9601, ET SEQ., the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), Public Law
Xx. 00-000, 000 Xxxx. 0000, the Resource Conservation and Recovery Act of
1976, the Florida Resource Recovery and Management Act, as they have been
amended to date, or any other applicable federal, state or local laws or
ordinances relating to the environment;
(ii) The Mortgagor has received no notice from any governmental
entity of the existence or suspected or alleged existence of any violation
of any Environmental Law; and
(iii) (A) As of the date hereof there are no hazardous or toxic
materials, substances, wastes or other environmentally regulated
substances, including, without limitation, oil, petroleum or chemical
liquids, solids or gaseous products or any materials containing asbestos,
the presence of which is limited, regulated or prohibited
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by any state, federal or local governmental authority or agency having
jurisdiction in the premises, or which are otherwise known to pose a hazard
to health or safety (collectively, "Hazardous Materials"), located on, in
or under the Mortgaged Property or used in connection therewith, or
(B) Mortgagor has fully disclosed to Mortgagee in writing the existence,
extent and nature of any such Hazardous Materials, which Mortgagor is
legally authorized and empowered to maintain on, in or under the Mortgaged
Property or use in connection therewith, and Mortgagor has obtained and
will maintain all licenses, permits and approvals with respect thereto, and
is in full compliance with all of the terms, conditions and requirements of
such licenses, permits and approvals.
(b) Mortgagor covenants that it will promptly notify Mortgagee of any
change in the nature or extent of any Hazardous Materials existing on, in or
under the Mortgaged Property or used in connection therewith, and will transmit
to Mortgagee copies of any citations, orders, notices or other material
governmental or other communication received with respect to any other Hazardous
Materials affecting the Mortgaged Property.
(c) Mortgagor shall not permit the use, storage, manufacture or
production of Hazardous Material on, in or under, or in connection with, the
Mortgaged Property except as specifically permitted in writing by the Mortgagee
and then only in strict conformity with all Environmental Laws.
(d) Mortgagor shall indemnify and hold Mortgagee harmless from and
against any and all damages, penalties, fines, claims, liens, suits,
liabilities, costs (including clean-up costs), judgments and expenses (including
attorneys', consultants' or experts' fees and expenses) of every kind and nature
suffered by or asserted against Mortgagee as a direct or indirect result of any
warranty or representation made by Mortgagor in this section being false or
untrue in any material respect or any requirement under any law, regulation or
ordinance, local, state or federal, which requires the elimination or removal of
any Hazardous Materials by Mortgagee, Mortgagor or any transferee of Mortgagor
or Mortgagee or imposes any fines, liabilities or other penalty on any such
person. The indemnities herein shall be without regard to any fault or
knowledge of Mortgagor.
(e) Upon discovery of any Hazardous Materials at levels which violate
Environmental Laws, Mortgagee shall have the right to require from time to time
such environmental audits or inspections as it may deem necessary to ensure
compliance with this section and payment of the cost of any such audits or
inspections shall be the responsibility of the Mortgagor.
(f) Mortgagor's obligations hereunder shall not be limited to any
extent by the term of the Obligation secured hereby, and, as to any act or
occurrence prior to payment in
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full and satisfaction of said Obligation which gives rise to liability
hereunder, shall continue, survive and remain in full force and effect
notwithstanding payment in full and satisfaction of said Obligation and this
Mortgage or foreclosure under this Mortgage, or delivery of a deed in lieu of
foreclosure.
35. WAIVER OF JURY TRIAL. THE MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS MORTGAGE OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE NOTE, THIS MORTGAGE AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE EXTENDING
CREDIT TO THE MORTGAGOR.
IN WITNESS WHEREOF, the undersigned Mortgagor has executed this instrument
as of the day and year first above written.
Signed, Sealed and Delivered
in the presence of: EASTGROUP PROPERTIES, L.P.
By: EastGroup Properties General Partners, Inc.
By:
------------------------------- --------------------------------------------
------------------------------- --------------------------------------------
Print Name Print Name Its
------------------------
By:
------------------------------- --------------------------------------------
------------------------------- --------------------------------------------
Print Name Print Name Its
STATE OF -----------------------
-----------------------
COUNTY OF
---------------------
The foregoing instrument was acknowledged before me this ______ day of
September, 1997, by _______________________________________ and
____________________________, the ____________________ and ___________________,
respectively, of EastGroup Properties General Partners, Inc., general partner of
EastGroup Properties, L.P., a Delaware limited partnership, on behalf of the
partnership. They are personally known to me or produced
_________________________ as identification.
--------------------------------------------
--------------------------------------------
Print Name
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Notary Public, County and State aforesaid
Commission Number
-----------------------
My commission expires:
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EXHIBIT A
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EXHIBIT B
The following, whether now owned or hereafter acquired:
All minerals, soil, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter on the Property described on Exhibit A hereto
(herein referred to as "Property") or under or above the same or any part or
parcel thereof.
All machinery, apparatus, equipment, fittings, fixtures, actually or
constructively attached to the Property and including all trade, domestic and
ornamental fixtures and articles of personal property of every kind and nature
whatsoever now or hereafter located in, upon or under the Property or any part
thereof and used or usable in connection with any present or future operation of
the Property, including, but without limiting the generality of the foregoing,
all heating, air-conditioning, freezing, lighting, laundry, incinerating and
power equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards;
plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating,
ventilating and communication apparatus; boilers, ranges, furnaces, oil burners
or units thereof; appliances; air-cooling and air-conditioning apparatus; vacuum
cleaning systems; elevators; escalators; shades; awnings; screens; storm doors
and windows; stoves; wall beds; built-in refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies; furniture and
furnishings; together with all building materials and equipment now or hereafter
delivered to the Property and intended to be installed therein, including but
not limited to lumber, plaster, cement, shingles, roofing, plumbing fixtures,
pipe, lath, wallboard, cabinets, nails, sinks, toilets, furnaces, heaters,
brick, tile, water heaters, screens, window frames, glass, doors, flooring,
paint, lighting fixtures and unattached refrigerating, cooking, heating and
ventilation appliances and equipment; together with all additions and accessions
thereto and replacements thereof.
All of the water, sanitary and storm sewer systems which are now or
hereafter located by, over, and upon the Property or any part and parcel
thereof, and which water system includes all water mains, service laterals,
hydrants, valves and appurtenances, and which sewer system includes all sanitary
sewer lines, including mains, laterals, manholes and appurtenances.
All paving for streets, roads, walkways or entrance ways now or hereafter
located on the Property or any part or parcel thereof.
All interest as lessor in and to all leases or rental arrangements of the
Property, or any part thereof, heretofore made and entered into, and in and to
all leases or rental arrangements hereafter made and entered into, together with
any and all guarantees of such leases or rental arrangements and including all
present and future security deposits and advance rentals.
All rights under agreements to sell or otherwise convey the Property or any
collateral listed herein and all cash and noncash proceeds thereof, including
purchase money, promissory notes and installment sales agreements, and any
rights in collateral or guaranties securing any such notes or other proceeds.
Any and all awards or payments, including interest thereon, and the right
to receive the same, as a result of (a) the exercise of the right of eminent
domain, (b) the alteration of the grade of any street, or (c) any other injury
to, taking of, or decrease in the value of the Property, all improvements
thereof and other collateral in this Exhibit.
All unearned premiums accrued, accruing or to accrue under any and all
insurance policies now or hereafter provided pursuant to the terms of security
agreements, and all proceeds or sums payable for the loss of or damage to
(a) the Property, any improvements thereto, or the collateral described herein,
or (b) rents, revenues, income, profits or proceeds from leases, franchises,
concessions or licenses or on any part of the Property.
All contracts, contract rights, accounts receivable and general intangibles
arising from contracts entered into in connection with development, construction
upon, operation or sale of part or all of the Property, including contract or
sales deposits, and all proceeds thereof.
All rights to any fictitious or other names or trade names used in
conjunction with the property.
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All furniture, furnishings, appliances and equipment and all other tangible
personal property now or hereafter owned or acquired and now or hereafter
located or installed at or in any other improvements on the Property or
elsewhere at or on the Property, together with all accessories and parts now
attached to or used in connection with any such property or which may hereafter
at any time be placed in or added thereto and also any and all replacements and
proceeds of any such Property.
All architectural and engineering plans and specifications, surveys, site
plans, appraisals, feasibility studies and development proposals, building
permits, easements, licenses, permits, agreements and other general intangibles
now or hereafter existing pertaining to the Property.
All rights under payment, performance, and other types of bonds relating to
the ownership, development, construction or operation of the Property of any
improvements thereto and all rights under governmental and nongovernmental
permits, licenses and agreements relating to the ownership, development,
construction or operation of the Property or improvements thereto, including
rights under any land sale or condominium registrations, development orders and
other agreements, permits, orders or rights relating to land use.
All rights under any covenants or restrictions, party wall agreements,
set-back agreements, cross-easement agreements and similar agreements now or
hereafter affecting the Property, including the right to grant waivers and
releases and all other rights of the owner or declarant thereunder.
All substitutions for, amendments to or modifications, extensions or
renewals of any collateral described herein and all proceeds thereof, in
whatever form.
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