EXHIBIT 10.5
MORTGAGE AND SECURITY AGREEMENT
CARDIAC CONTROL SYSTEMS, INC.,
MORTGAGOR
AND
COAST BUSINESS CREDIT(R), A DIVISION OF
SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION,
MORTGAGEE
DATED: AS OF JUNE 13, 1997
THIS INSTRUMENT WAS PREPARED BY: XXXX X. XXXXXX, ESQ., XXXXXX, XXXXXXXXXX &
XXXXXXXXX LLP, 000 XXXXX XXXXXXXX XXXXXX, XXXXX 0000, XXX XXXXXXX, XXXXXXXXXX
00000.
Record and Return to:
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Coast Business Credit
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Manager
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made as of
the 13 day of June, 1997, by CARDIAC CONTROL SYSTEMS, INC., a Delaware
corporation ("Mortgagor"), whose address is Three Xxxxxxxx Xxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx 00000, in favor of COAST BUSINESS CREDIT, a division of Southern
Pacific Thrift & Loan Association ("Mortgagee"), whose address is 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H:
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THAT FOR AND IN CONSIDERATION OF THE SUM OF TEN AND NO/100 DOLLARS
($10.00), AND OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH
IS HEREBY ACKNOWLEDGED, MORTGAGOR HEREBY IRREVOCABLY MORTGAGES, GRANTS,
BARGAINS, SELLS, CONVEYS, TRANSFERS, PLEDGES, SETS OVER AND ASSIGNS, AND GRANTS
A SECURITY INTEREST, TO MORTGAGEE, ITS SUCCESSORS AND ASSIGNS, with power of
sale, in all of Mortgagor's estate, right, title and interest in, to and under
any and all of the following described property, whether now owned or hereafter
acquired (collectively, the "Property"):
A. All that certain real property situated at Three Commerce
Boulevard, Palm Coast, County of Flagler, State of Florida, more particularly
described on Exhibit A attached hereto and incorporated herein by this reference
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(the "Real Estate"), together with all of the easements, rights, privileges,
franchises, tenements, hereditaments and appurtenances now or hereafter
thereunto belonging or in any way appertaining and all of the estate, right,
title, interest, claim and demand whatsoever of Mortgagor therein or thereto,
either at law or in equity, in possession or in expectancy, now or hereafter
acquired;
B. All structures, buildings and improvements of every kind and
description now or at any time hereafter located or placed on the Real Estate
(the "Improvements");
C. All furniture, furnishings, fixtures, goods, equipment, inventory
or personal property owned by Mortgagor and now or hereafter located on,
attached to or used in and about the Improvements, including, but not limited
to, all machines, engines, boilers, dynamos, elevators, stokers, tanks,
cabinets, awnings, screens, shades, blinds, carpets, draperies, lawn mowers, and
all appliances, plumbing, heating, air conditioning, lighting, ventilating,
refrigerating, disposals and incinerating equipment, and all fixtures and
appurtenances thereto, and such other goods and chattels and personal property
owned by Mortgagor as are now or hereafter used or furnished in operating the
Improvements, or the activities conducted therein, and all building materials
and equipment hereafter situated on or about the Real Estate or Improvements,
and all warranties and guaranties relating thereto, and all additions thereto
and substitutions and replacements therefor (exclusive of any of the foregoing
owned or leased by tenants of space in the Improvements);
D. All easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, and other emblements now or
hereafter located on the Real Estate or under or above the same or any part or
parcel thereof, and all estates, rights, titles, interests, tenements,
hereditaments and appurtenances, reversions and remainders whatsoever, in any
way belonging, relating or appertaining to the Real Estate and/or Improvements
or any part thereof, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by Mortgagor;
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E. All water, ditches, xxxxx, reservoirs and drains and all water,
ditch, well, reservoir and drainage rights which are appurtenant to, located on,
under or above or used in connection with the Real Estate or the Improvements,
or any part thereof, whether now existing or hereafter created or acquired;
F. All minerals, crops, timber, trees, shrubs, flowers and
landscaping features now or hereafter located on, under or above the Real
Estate;
G. All cash funds, deposit accounts and other rights and evidence of
rights to cash, now or hereafter created or held by Mortgagee pursuant to this
Mortgage or any other of the Loan Documents (as hereinafter defined);
H. All leases, licenses, concessions and occupancy agreements of the
Real Estate or the Improvements now or hereafter entered into and all rents,
royalties, issues, profits, revenue, income and other benefits (collectively,
the "Rents and Profits") of the Real Estate or the Improvements, now or
hereafter arising from the use or enjoyment of all or any portion thereof or
from any present or future lease, license, concession, occupancy agreement or
other agreement pertaining thereto or arising from any of the Contracts (as
hereinafter defined) or any of the General Intangibles (as hereinafter defined)
and all cash or securities deposited to secure performance by the tenants,
lessees or licensees, as applicable, of their obligations under any such leases,
licenses, concessions or occupancy agreements, whether said cash or securities
are to be held until the expiration of the terms of said leases, licenses,
concessions or occupancy agreements or applied to one or more of the
installments of rent coming due prior to the expiration of said terms, subject
to, however, the provisions contained in Section 1.11 hereinbelow;
I. All contracts and agreements now or hereafter entered into
covering any part of the Real Estate or the Improvements (collectively, the
"Contracts") and all revenue, income and other benefits thereof, including,
without limitation, management agreements, service contracts, maintenance
contracts, equipment leases, personal property leases and any contracts or
documents relating to construction on any part of the Real Estate or the
Improvements (including plans, drawings, surveys, tests, reports, bonds and
governmental approvals) or to the management or operation of any part of the
Real Estate or the Improvements;
J. All present and future monetary deposits given to any public or
private utility with respect to utility services furnished to any part to the
Real Estate or the Improvements;
K. All present and future funds, accounts, instruments, accounts
receivable, documents, causes of action, claims, general intangibles (including
without limitation, trademarks, trade names, servicemarks and symbols now or
hereafter used in connection with any part of the Real Estate or the
Improvements, all names by which the Real Estate or the Improvements may be
operated or known, all rights to carry on business under such names, and all
rights, interest and privileges which Mortgagor has or may have as developer or
declarant under any covenants, restrictions or declarations now or hereafter
relating to the Real Estate or the Improvements) and all notes or chattel paper
now or hereafter arising from or by virtue of any transactions related to the
Real Estate or the Improvements (collectively, the "General Intangibles");
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L. All water taps, sewer taps, certificates of occupancy, permits,
licenses, franchises, certificates, consents, approvals and other rights and
privileges now or hereafter obtained in connection with the Real Estate or the
Improvements and all present and future warranties and guaranties relating to
the Improvements or to any equipment, fixtures, furniture, furnishings, personal
property or components of any of the foregoing now or hereafter located or
installed on the Real Estate or the Improvements;
M. All building materials, supplies and equipment now or hereafter
placed on the Real Estate or in the Improvements and all architectural
renderings, models, drawings, plans, specifications, studies and data now or
hereafter relating to the Real Estate or the Improvements;
N. All right, title and interest of Mortgagor in any insurance
policies or binders now or hereafter relating to the Property including any
unearned premiums thereon;
O. All proceeds, products, substitutions and accessions (including
claims and demands therefor) of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards; and
P. All other or greater rights and interests of every nature in the
Real Estate or the Improvements and in the possession or use thereof and income
therefrom, whether now owned or hereafter acquired by Mortgagor.
FOR THE PURPOSES OF SECURING ALL OF THE FOLLOWING NOT TO EXCEED A
TOTAL LIABILITY OF $500,000 PLUS FEES AND COSTS OF MORTGAGEE INCURRED IN THE
ENFORCEMENT OF THIS MORTGAGE.
(1) All indebtedness and other obligations evidenced by that certain
Loan and Security Agreement dated on or about the date hereof, between Mortgagor
and Mortgagee, the Schedule thereto and all promissory notes executed from time
to time in connection therewith (as the same may be amended, modified, renewed
or extended from time to time, collectively, the "Loan Agreement");
(2) The full and prompt payment and performance of all of the
provisions, agreements, covenants and obligations herein contained and contained
in any other agreements, documents or instruments now or hereafter evidencing,
securing or otherwise relating to the indebtedness evidenced by the Loan
Agreement (the Loan Agreement, this Mortgage, and such other agreements,
documents and instruments, together with any and all renewals, amendments,
extensions and modifications thereof, are hereinafter collectively referred to
as the "Loan Documents") and the payment of all other sums therein covenanted to
be paid;
(3) Any and all additional advances made by Mortgagee to protect or
preserve the Property or the lien or security interest created hereby on the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided or for performance of any of Mortgagor's obligations hereunder or under
the other Loan Documents or for any other purpose
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provided herein or in the other Loan Documents (whether or not the original
Mortgagor remains the owner of the Property at the time of such advances); and
(4) Any and all other indebtedness now owing or which may hereafter be
owing by Mortgagor to Mortgagee, however and whenever incurred or evidenced,
whether express or implied, direct or indirect, absolute or contingent, or due
or to become due, and all renewals, modifications, consolidations, replacements
and extensions thereof.
(All of the sums referred to in Paragraphs (1) through (4) above are
herein sometimes referred to as the "secured indebtedness" or the "indebtedness
secured hereby").
TO HAVE AND TO HOLD the Property unto Mortgagee, its successors and
assigns forever, for the purposes and uses herein set forth.
PROVIDED, HOWEVER, that if the principal and interest and all other
sums due or to become due under the Loan Agreement, including, without
limitation, any prepayment fees required pursuant to the terms of the Loan
Agreement, shall have been paid at the time and in the manner stipulated therein
and all other sums payable hereunder and all other indebtedness secured hereby
shall have been paid and all other covenants contained in the Loan Documents
shall have been performed, and Mortgagee shall have no further commitments under
the Loan Agreement, then, in such case, this Mortgage shall be satisfied and the
estate, right, title and interest of Mortgagee in the Property shall cease, and
upon payment to Mortgagee of all costs and expenses incurred for the preparation
of the release hereinafter referenced and all recording costs if allowed by law,
Mortgagee shall release this Mortgage and the lien hereof by proper instrument.
Article I
COVENANTS OF MORTGAGOR
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For the purpose of further securing the indebtedness secured hereby
and for the protection of the security of this Mortgage, for so long as the
indebtedness secured hereby or any part thereof remains unpaid, Mortgagor
covenants and agrees as follows:
1.1 Warranties of Mortgagor. Mortgagor, for itself and its successors and
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assigns, does hereby represent, warrant and covenant to and with Mortgagee, its
successors and assigns, that:
(a) Mortgagor has good and marketable fee simple title to the
Property, subject only to those matters expressly set forth on Exhibit B
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attached hereto and by this reference incorporated herein (the "Permitted
Exceptions"), and has full power and lawful authority to grant, bargain, sell,
convey, assign, transfer and mortgage its interest in the Property in the manner
and form hereby done or intended. Mortgagor will preserve its interest in and
title to the Property and will forever warrant and defend the same to Mortgagee
against any and all claims whatsoever and will forever warrant and defend the
validity and priority of the lien and security interest created herein against
the claims of all persons and parties whomsoever, subject to the Permitted
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Exceptions. The foregoing warranty of title shall survive the foreclosure of
this Mortgage and shall inure to the benefit of and be enforceable by Mortgagee
in the event Mortgagee acquires title to the Property pursuant to any
foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or
contemplated by Mortgagor or, to the best knowledge of Mortgagor, against
Mortgagor or by or against any party directly or contingently liable for the
obligations secured hereby;
(c) All reports, certificates, affidavits, statements and other data
furnished by Mortgagor to Mortgagee in connection with the loan evidenced by the
Loan Agreement are true and correct in all material respects and do not omit to
state any fact or circumstance necessary to make the statements contained
therein not misleading;
(d) The execution, delivery and performance of this Mortgage, the Loan
Agreement and all of the other Loan Documents have been duly authorized by all
necessary action to be, and are, binding and enforceable against Mortgagor in
accordance with the respective terms thereof and do not contravene, result in a
breach of or constitute (upon the giving of notice or the passage of time or
both) a default under the articles of incorporation or other organizational
documents of Mortgagor or any contract or agreement of any nature to which
Mortgagor is a party or by which Mortgagor or any of its property may be bound
and do not violate or contravene any law, order, decree, rule or regulation to
which Mortgagor is subject;
(e) The Real Estate and the Improvements, and the intended use thereof
by Mortgagor comply with all applicable restrictive covenants, zoning
ordinances, subdivision and building codes, flood disaster laws, applicable
health and environmental laws and regulations and all other ordinances, orders
or requirements issued by any state, federal or municipal authorities having or
claiming jurisdiction over the Property. The Real Estate and Improvements
constitute a separate tax parcel for purposes of ad valorem taxation. The Real
Estate and Improvements do not require any rights over, or restrictions against,
other property in order to comply with any of the aforesaid governmental
ordinances, orders or requirements.
(f) All utility services necessary and sufficient for the full use,
occupancy, operation and disposition of the Real Estate and the Improvements for
their intended purposes are available to the Property, including water, storm
sewer, sanitary sewer, gas, electric, cable and telephone facilities, through
public rights-of-way or perpetual private easements approved by Mortgagee;
(g) All streets, roads, highways, bridges and waterways necessary for
access to and full use, occupancy, operation and disposition of the Real Estate
and the Improvements have been completed, have been dedicated to and accepted by
the appropriate municipal authority and are open and available to the Real
Estate and the Improvements without further condition or cost to Mortgagor;
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(h) All curb cuts, driveways and traffic signals shown on the survey
delivered to Mortgagee prior to the execution and delivery of this Mortgage are
existing and have been fully approved by the appropriate governmental authority;
(i) There are no judicial, administrative, mediation or arbitration
actions, suits or proceedings pending or threatened against or affecting
Mortgagor or the Property which, if adversely determined, would materially
impair either the Property or Mortgagor's ability to perform the covenants or
obligations required to be performed under the Loan Documents;
(j) The Property is free from delinquent water charges, sewer rents,
taxes and assessments;
(k) As of the date of this Mortgage, the Property is free from
unrepaired damage caused by fire, flood, accident or other casualty;
(l) As of the date of this Mortgage, no part of the Real Estate or the
Improvements has been taken in condemnation, eminent domain or like proceeding
nor is any such proceeding pending or to Mortgagor's knowledge and belief,
threatened or contemplated;
(m) Mortgagor possesses all franchises, patents, copyrights,
trademarks, tradenames, licenses and permits adequate for the conduct of its
business substantially as now conducted;
(n) The Improvements are structurally sound, in good repair and free
of defects in materials and workmanship and have been constructed and installed
in substantial compliance with the plans and specifications relating thereto.
All major building systems located within the Improvements, including, without
limitation, the heating and air conditioning systems and the electrical and
plumbing systems, are in good working order and condition;
(o) To the extent requested by Mortgagee, Mortgagor has delivered to
Mortgagee true, correct and complete copies of all Contracts and all amendments
thereto or modifications thereof;
(p) Mortgagor and the Property are free from any past due
obligations for sales and payroll taxes; and
(q) There are no security agreements or financing statements affecting
any of the Property other than (i) as disclosed in writing by Mortgagor to
Mortgagee prior to the date hereof and (ii) the security agreements and
financing statements created in favor of Mortgagee.
1.2 Defense of Title. If, while this Mortgage is in force, the title to
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the Property or the interest of Mortgagee therein shall be the subject, directly
or indirectly, of any action at law or in equity, or be attached directly or
indirectly, or endangered, clouded or adversely affected in any manner,
Mortgagor, at Mortgagor's expense, shall take all necessary and proper steps for
the defense of said title or interest, including the employment of counsel
approved by Mortgagee, the prosecution or defense of litigation, and the
compromise or discharge of claims made against said
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title or interest. Notwithstanding the foregoing, in the event that Mortgagee
determines that Mortgagor is not adequately performing its obligations under
this Section, Mortgagee may, without limiting or waiving any other rights or
remedies of Mortgagee hereunder, take such steps, with respect thereto as
Mortgagee shall deem necessary or proper and any and all costs and expenses
incurred by Mortgagee in connection therewith, together with interest thereon at
the default interest rate provided in the Loan Agreement ("Default Interest
Rate") from the date incurred by Mortgagee until actually paid by Mortgagor,
shall be immediately paid by Mortgagor on demand and shall be secured by this
Mortgage and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Loan Agreement.
1.3 Performance of Obligations. Mortgagor shall pay when due the
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principal of and the interest on the indebtedness evidenced by the Loan
Agreement. Mortgagor shall also pay all charges, fees and other sums required
to be paid by Mortgagor as provided in the Loan Documents, and shall observe,
perform and discharge all obligations, covenants and agreements to be observed,
performed or discharged by Mortgagor set forth in the Loan Documents in
accordance with their terms. Further, Mortgagor shall promptly and strictly
perform and comply with all covenants, conditions, obligations and prohibitions
required of Mortgagor in connection with any other document or instrument
affecting title to the Property, or any part thereof, regardless of whether such
document or instrument is superior or subordinate to this Mortgage.
1.4 Insurance. Mortgagor shall, at Mortgagor's expense, maintain in force
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and effect on the Property at all times while this Mortgage continues in effect
the following insurance:
(a) Insurance against loss or damage to the Property by fire,
windstorm, tornado and hail and against loss and damage by such other, further
and additional risks as may be now or hereafter embraced by an "all-risk" form
of insurance policy. The amount of such insurance shall be not less than one
hundred percent (100%) of the full replacement (insurable) cost of the
Improvements, furniture, furnishings, fixtures, equipment and other items
(whether personalty or fixtures) included in the Property and owned by Mortgagor
from time to time, without reduction for depreciation. The determination of the
replacement cost amount shall be adjusted annually to comply with the
requirements of the insurer issuing such coverage or, at Mortgagee's election,
by reference to such indices, appraisals or information as Mortgagee determines
in its reasonable discretion. Full replacement cost, as used herein, means,
with respect to the Improvements, the cost of replacing the Improvements without
regard to deduction for depreciation, exclusive of the cost of excavations,
foundations and footings below the lowest basement floor, and means, with
respect to such furniture, furnishings, fixtures, equipment and other items, the
cost of replacing the same, in each case, with inflation guard coverage to
reflect the effect of inflation, or annual valuation. Each policy or policies
shall contain a replacement cost endorsement and either an agreed amount
endorsement (to avoid the operation of any co-insurance provisions) or a waiver
of any co-insurance provisions, all subject to Mortgagee's approval.
(b) Comprehensive Commercial General Liability Insurance for personal
injury, bodily injury, death and property damage liability in amounts not less
than $3,000,000.00 per occurrence and $4,000,000.00 in the aggregate (both
inclusive of umbrella coverage). During any construction on the Property,
Mortgagor's general contractor for such construction shall also
8
provide the insurance required in this Subsection (b). Mortgagee hereby retains
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the right to periodically review the amount of said liability insurance being
maintained by Mortgagor and to require an increase in the amount of said
liability insurance should Mortgagee deem an increase to be reasonably prudent
under then existing circumstances.
(c) General boiler and machinery insurance coverage is required if
steam boilers or other pressure-fired vessels are in operation at the Property.
Minimum liability amount per accident must equal the greater of the replacement
(insurable) value of the Improvements housing such boiler or pressure-fired
machinery or $2,000,000.00.
(d) If the Property or any part thereof is identified by the Secretary
of Housing and Urban Development as being situated in an area now or
subsequently designated as having special flood hazards (including, without
limitation, those areas designated as Zone A or Zone V), flood insurance in an
amount equal to the lesser of: (i) the minimum amount required, under the terms
of coverage, to compensate for any damage or loss on a replacement basis (or the
unpaid balance of the indebtedness secured hereby if replacement cost coverage
is not available for the type of building insured); or (ii) the maximum
insurance available under the appropriate National Flood Insurance
Administration program.
(e) During the period of any construction on the Property or
renovation or alteration of the Improvements, a so-called "Builder's All-Risk
Completed Value" or "Course of Construction" insurance policy in non-reporting
form for any Improvements under construction, renovation or alteration in an
amount approved by Mortgagee and Worker's Compensation Insurance covering all
persons engaged in such construction, renovation or alteration.
(f) Loss of rents or loss of business income insurance in amounts
sufficient to compensate Mortgagor for all Rents and Profits during a period of
not less than one year in which the Property may be damaged or destroyed.
(g) Such other insurance on the Property or on any replacements or
substitutions thereof or additions thereto as may from time to time be required
by Mortgagee against other insurable hazards or casualties which at the time are
commonly insured against in the case of property similarly situated, due regard
being given to the height and type of buildings, their construction, location,
use and occupancy.
All such insurance shall (i) be with insurers authorized to do
business in the state within which the Property is located and who have and
maintain a rating of at least (A) A from Standard & Poors or (B) "A: V" from
A.M. Best, (ii) contain the complete address of the Property (or a complete
legal description), (iii) be for terms of at least one year, (iv) contain
deductibles which do not exceed $10,000.00 or, with respect to the policy
described in clause (d) above $3,000, and (v) be subject to the approval of
Mortgagee as to insurance companies, amounts, content, forms of policies, method
by which premiums are paid and expiration dates.
Mortgagor shall as of the date hereof deliver to Mortgagee
evidence that said insurance policies have been paid current as of the date
hereof and certified copies of such
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insurance policies and original certificates of insurance signed by an
authorized agent of the applicable insurance companies evidencing such insurance
satisfactory to Mortgagee. Mortgagor shall renew all such insurance and deliver
to Mortgagee certificates evidencing such renewals at least thirty (30) days
before any such insurance shall expire. Without limiting the required
endorsements to the insurance policies, Mortgagor further agrees that all such
policies shall include a standard, non-contributory, mortgagee clause naming:
Coast Business Credit
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(a) as an additional insured under all liability insurance policies, (b) as the
first mortgagee on all property insurance policies and (c) as the lender's loss
payee on all loss of rents or loss of business income insurance policies.
Mortgagor further agrees that all such insurance policies: (a) shall provide for
at least thirty (30) days' prior written notice to Mortgagee prior to any
cancellation or termination thereof and prior to any modification thereof which
affects the interest of Mortgagee; (b) shall contain an endorsement or agreement
by the insurer that any loss shall be payable to Mortgagee in accordance with
the terms of such policy notwithstanding any act or negligence of Mortgagor
which might otherwise result in forfeiture of such insurance; (c) shall waive
all rights of subrogation against Mortgagee; (d) in the event that the Property
constitutes a legal non-conforming use, shall include an ordinance or law
coverage endorsement which will contain "Demolition Cost", "Loss Due to
Operation of Law" and "Increased Cost of Construction" coverages; (e) in the
event that any lease requires that any insurance policies affecting the Property
contain a waiver of subrogation provision, shall, either by their terms or by
endorsement, provide such a waiver; and (f) may be in the form of blanket
policies provided that either such policies contain an endorsement, or Mortgagee
receives other evidence satisfactory to Mortgagee, to the effect that the
coverage provided thereby will not be affected by the failure to pay any portion
of the premium therefore which is not allocable to the Property or by any other
action not relating to the Property which would otherwise permit the issuer
thereof to cancel the coverage thereof. The delivery to Mortgagee of the
insurance policies or the certificates of insurance as provided above shall
constitute an assignment of all proceeds payable under such insurance policies
relating to the Property by Mortgagor to Mortgagee as further security for the
indebtedness secured hereby. In the event of foreclosure of this Mortgage, or
other transfer of title to the Property in extinguishment in whole or in part of
the secured indebtedness, all right, title and interest of Mortgagor in and to
all proceeds payable under such policies then in force concerning the Property
shall thereupon vest in the purchaser at such foreclosure, or in Mortgagee or
other transferee in the event of such other transfer of title. Approval of any
insurance by Mortgagee shall not be a representation of the solvency of any
insurer or the sufficiency of any amount of insurance. In the event Mortgagor
fails to provide, maintain, keep in force or deliver and furnish to Mortgagee
the policies of insurance required by this Mortgage or evidence of their renewal
as required herein, Mortgagee may, but shall not be obligated to, procure such
insurance and Mortgagor shall pay all amounts advanced by Mortgagee therefor,
together with interest thereon at the Default Interest Rate from and after the
date advanced by Mortgagee until actually repaid by Mortgagor, promptly upon
demand by Mortgagee. Any amounts so advanced by Mortgagee, together with
interest
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thereon, shall be secured by this Mortgage and by all of the other Loan
Documents securing all or any part of the indebtedness secured hereby. Mortgagee
shall not be responsible for nor incur any liability for the insolvency of the
insurer or other failure of the insurer to perform, even though Mortgagee has
caused the insurance to be placed with the insurer after failure of Mortgagor to
furnish such insurance.
1.5 Payment of Taxes. Mortgagor shall pay or cause to be paid all taxes
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and assessments which are or may become a lien on the Property or which are
assessed against or imposed upon the Property. Mortgagor shall furnish
Mortgagee with receipts (or if receipts are not immediately available, with
copies of canceled checks evidencing payment with receipts to follow promptly
after they become available) showing payment of such taxes and assessments at
least fifteen (15) days prior to the applicable delinquency date therefor.
Notwithstanding the foregoing, Mortgagor may in good faith, by appropriate
proceedings and upon notice to Mortgagee, contest the validity, applicability or
amount of any asserted tax or assessment so long as (a) such contest is
diligently pursued, and (b) Mortgagee determines, in its subjective opinion,
that such contest suspends the obligation to pay the tax and that nonpayment of
such tax or assessment will not result in the sale, loss, forfeiture or
diminution of the Property or any part thereof or any interest of Mortgagee
therein; provided, however, that Mortgagor shall promptly cause to be paid any
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amount adjudged by a court of competent jurisdiction to be due, with all
interest, costs and penalties thereon, promptly after such judgment becomes
final; and provided, further, that in any event each such contest shall be
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concluded, the taxes, assessments, interest, costs and penalties shall be paid
prior to the date any writ or order is issued under which the Property may be
sold, lost or forfeited. Mortgagee may establish reserves under the Loan
Agreement for amounts so contested by Mortgagor.
1.6 Intentionally Omitted.
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1.7 Intentionally Omitted.
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1.8 Intentionally Omitted.
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1.9 Casualty and Condemnation. Mortgagor shall give Mortgagee prompt
-------------------------
written notice of the occurrence of any casualty affecting, or the institution
of any proceedings for eminent domain or for the condemnation of, the Property
or any portion thereof. All insurance proceeds on the Property, and all causes
of action, claims, compensation, awards and recoveries for any damage,
condemnation or taking of all or any part of the Property or for any damage or
injury to it for any loss or diminution in value of the Property, are hereby
assigned to and shall be paid to Mortgagee not to exceed $500,000 plus fees and
costs as set forth on page 4 hereof. Mortgagee may participate in any suits or
proceedings relating to any such proceeds, causes of action, claims,
compensation, awards or recoveries and Mortgagee is hereby authorized, in its
own name or in Mortgagor's name, to adjust any loss covered by insurance or any
condemnation claim or cause of action, and to settle or compromise any claim or
cause of action in connection therewith, and Mortgagor shall from time to time
deliver to Mortgagee any instruments required to permit such participation;
provided, however, that Mortgagee shall not have the right to participate in
-------- -------- ----
the adjustment of any loss which is not in excess of the lesser of (i) ten
percent (10%) of the then
11
outstanding principal balance of the secured obligations and (ii) $50,000.00.
Mortgagee shall apply any sums received by it under this Section first to the
payment of all of its costs and expenses (including, but not limited to, legal
fees and disbursements) incurred in obtaining those sums, and then, as follows:
(a) In the event that less than sixty percent (60%) of the Improvements
located on the Real Estate have been taken or destroyed, then if:
(1) no default is then continuing hereunder or under any of the other
Loan Documents and no event has occurred which, with the giving of notice of the
passage of time or both, would constitute a default hereunder or under any of
the other Loan Documents, and
(2) the Property can, in Mortgagee's judgment, with diligent
restoration or repair, be returned to a condition at least equal to the
condition thereof that existed prior to the casualty or partial taking causing
the loss or damage within the earlier to occur of (i) six (6) months after the
receipt of insurance proceeds or condemnation awards by either Mortgagor of
Mortgagee and (ii) the stated maturity date of the secured obligations, and
(3) all necessary governmental approvals can be obtained to allow the
rebuilding and reoccupancy of the Property as described in Section 1.9(a)(2)
above, and
(4) there are sufficient sums available (through insurance proceeds or
condemnation awards and contributions by Mortgagor, the full amount of which
shall at Mortgagee's option have been deposited with Mortgagee) for such
restoration or repair (including, without limitation, for any costs and expenses
of Mortgagee to be incurred in administering said restoration or repair) and for
payment of principal and interest to become due on the secured obligations
during such restoration or repair, and
(5) the economic feasibility of the Improvements after such
restoration or repair will be such that income from their operation is
reasonably anticipated to be sufficient to pay operating expenses of the
Property and debt service on the indebtedness secured hereby in full with the
same coverage ratio considered by Mortgagee in its determination to make the
loan secured hereby, and
(6) Mortgagor shall have delivered to Mortgagee, at Mortgagor's sole
cost and expense, an appraisal report in form and substance satisfactory to
Mortgagee appraising the value of the Property as so restored or repaired to be
not less than the appraised value of the Property considered by Mortgagee in its
determination to make the loan secured hereby, and
(7) Mortgagor so elects by written notice delivered to Mortgagee
within five (5) days after settlement of the aforesaid insurance or condemnation
claim,
then, Mortgagee shall, solely for the purposes of such restoration or repair,
advance so much of the remainder of such sums as may be required for such
restoration or repair, and any funds deposited by Mortgagor therefor, to
Mortgagor in the manner and upon such terms and conditions as would be required
by a prudent interim construction lender, including, but not limited to, the
prior
12
approval by Mortgagee of plans and specifications, contractors and form of
construction contracts and the furnishing to Mortgagee of permits, bonds, lien
waivers, invoices, receipts and affidavits from contractors and subcontractors
in form and substance satisfactory to Mortgagee in its discretion, with any
remainder being applied by Mortgagee for payment of the indebtedness secured
hereby in whatever order Mortgagee directs in its absolute discretion.
(b) In all other cases, namely, in the event that sixty percent (60%)
or more of the Improvements located on the Real Estate have been taken or
destroyed or Mortgagor does not elect to restore or repair the Property pursuant
to clause (a) above, or otherwise fails to meet the requirements of clause (a)
above, then in any of such events, Mortgagee shall elect, in Mortgagee's
absolute discretion and without regard to the adequacy of Mortgagee's security,
to do either of the following: (1) accelerate the maturity date of the Loan
Agreement and declare any and all indebtedness secured hereby to be immediately
due and payable and apply the remainder of such sums received pursuant to this
Section to the payment of the indebtedness secured hereby in whatever order
Mortgagee directs in its absolute discretion, with any remainder being paid to
Mortgagor, or (2) notwithstanding that Mortgagor may have elected not to restore
or repair the Property pursuant to the provisions of Section 1.9(a)(7) above,
require Mortgagor to restore or repair the Property in the manner and upon such
terms and conditions as would be required by a prudent interim construction
lender, including, but not limited to the deposit by Mortgagor with Mortgagee,
within thirty (30) days after demand therefor, of any deficiency necessary in
order to assure the availability of sufficient funds to pay for such restoration
or repair, including Mortgagee's costs and expenses to be incurred in connection
therewith, the prior approval by Mortgagee of plans and specifications,
contractors and form of construction contracts and the furnishing to Mortgagee
of permits, bonds, lien waivers, invoices, receipt and affidavits from
contractors and subcontractors in form and substance satisfactory to Mortgagee
in its discretion, and apply the remainder of such sums toward such restoration
and repair, with any balance thereafter remaining being applied by Mortgagee for
payment of the indebtedness secured hereby in whatever order Mortgagee directs
in its absolute discretion.
Any reduction in the indebtedness secured hereby resulting from Mortgagee's
application of any sums received by it hereunder shall take effect only when
Mortgagee actually receives such sums and elects to apply such sums to the
indebtedness secured hereby and, in any event, the unpaid portion of the
indebtedness secured hereby shall remain in full force and effect and Mortgagor
shall not be excused in the payment thereof. Partial payments received by
Mortgagee, as described in the preceding sentence, shall be applied to the
secured obligations in such order as Mortgagee shall determine in its reasonable
judgment. If Mortgagor elects or Mortgagee directs Mortgagor to restore or
repair the Property after the occurrence of a casualty or partial taking of the
Property as provided above, Mortgagor shall promptly and diligently, at
Mortgagor's sole cost and expense and regardless of whether the insurance
proceeds or condemnation award, as appropriate, shall be sufficient for the
purpose, restore, repair, replace and rebuild the Property as nearly as possible
to its value, condition and character immediately prior to such casualty or
partial taking in accordance with the foregoing provisions and Mortgagor shall
pay to Mortgagee all costs and expenses of Mortgagee incurred in administering
said rebuilding, restorations or repair, provided the Mortgagee makes such
proceeds or award available for such purpose. Mortgagor agrees to execute and
deliver from time to time such further instruments as may be requested by
Mortgagee to confirm
13
the foregoing assignment to Mortgagee of any award, damage, insurance proceeds,
payment or other compensation. Mortgagee is hereby irrevocably constituted and
appointed the attorney-in-fact of Mortgagor (which power of attorney shall be
irrevocable so long as any indebtedness secured hereby is outstanding, shall be
deemed coupled with an interest, shall survive the voluntary or involuntary
dissolution of Mortgagor and shall not be affected by any disability or
incapacity suffered by Mortgagor subsequent to the date hereof), with full power
of substitution, subject to the terms of this section, to settle for, collect
and receive any such awards, damages, insurance proceeds, payments or other
compensation from the parties or authorities making the same, to appear in and
prosecute any proceedings therefor and to give receipts and acquittances
therefor.
1.10 Mechanics' Liens. Mortgagor shall pay when due all claims and
----------------
demands of mechanics, materialmen, laborers and others for any work performed or
materials delivered for the Real Estate or Improvements; provided, however,
-------- -------
that, Mortgagor shall have the right to contest in good faith any such claim or
demand, so long as it does so diligently, by appropriate proceedings and without
prejudice to Mortgagee and provided that neither the Property nor any interest
therein would be in any danger of sale, loss or forfeiture as a result of such
proceeding or contest. In the event Mortgagor shall contest any such claim or
demand, Mortgagor shall promptly notify Mortgagee of such contest and thereafter
shall, upon Mortgagee's request, promptly provide a bond, cash deposit or other
security satisfactory to Mortgagee to protect Mortgagee's interest and security
should the contest be unsuccessful. If Mortgagor shall fail to immediately
discharge or provide security against any such claim or demand as aforesaid,
Mortgagee may do so and any and all expenses incurred by Mortgagee, together
with interest thereon at the Default Interest Rate from the date incurred by
Mortgagee until actually paid by Mortgagor, shall be immediately paid by
Mortgagor on demand and shall be secured by this Mortgage and by all of the
other Loan Documents securing all or any part of the indebtedness evidenced by
the Loan Agreement.
1.11 Rents and Profits. As additional and collateral security for the
-----------------
payment of the indebtedness secured hereby and cumulative of any and all rights
and remedies herein provided for, Mortgagor hereby absolutely and presently
assigns to Mortgagee all existing and future Rents and Profits. Mortgagor
hereby grants to Mortgagee the sole, exclusive and immediate right, without
taking possession of the Property, to demand, collect (by suit or otherwise),
receive and give valid and sufficient receipts for any and all of said Rents and
Profits, for which purpose Mortgagor does hereby irrevocably make, constitute
and appoint Mortgagee its attorney-in-fact with full power to appoint
substitutes or a trustee to accomplish such purpose (which power of attorney
shall be irrevocable so long as any indebtedness secured hereby is outstanding,
shall be deemed to be coupled with an interest, shall survive the voluntary or
involuntary dissolution of Mortgagor and shall not be affected by any disability
or incapacity suffered by Mortgagor subsequent to the date hereof). Mortgagee
shall be without liability for any loss which may arise from a failure or
inability to collect Rents and Profits, proceeds or other payments. However,
until the occurrence of a default under this Mortgage which has not been cured
within any applicable grace or cure period, Mortgagor shall have a license to
collect and receive the Rents and Profits when due and prepayments thereof for
not more than one month prior to due date thereof. Upon the occurrence of a
default hereunder which has not been cured within any applicable grace or cure
period, Mortgagor's license shall automatically terminate without notice to
Mortgagor and Mortgagee may
14
thereafter, without taking possession of the Property, collect the Rents and
Profits itself or by an agent or receiver. From and after the termination of
such license, Mortgagor shall be the agent of Mortgagee in collection of the
Rents and Profits and all of the Rents and Profits so collected by Mortgagor
shall be held in trust by Mortgagor for the sole and exclusive benefit of
Mortgagee and Mortgagor shall, within one (1) business day after receipt of any
Rents and Profits, pay the same to Mortgagee to be applied by Mortgagee as
hereinafter set forth. Neither the demand for or collection of Rents and Profits
by Mortgagee shall constitute any assumption by Mortgagee of any obligations
under any agreement relating thereto. Mortgagee is obligated to account only for
such Rents and Profits as are actually collected or received by Mortgagee.
Mortgagor irrevocably agrees and consents that the respective payors of the
Rents and Profits shall, upon demand and notice from Mortgagee of a default
hereunder, pay said Rents and Profits to Mortgagee without liability to
determine the actual existence of any default claimed by Mortgagee. Mortgagor
hereby waives any right, claim or demand which Mortgagor may now or hereafter
have against any such payor by reason of such payment of Rents and Profits to
Mortgagee, and any such payment shall discharge such payor's obligation to make
such payment to Mortgagor. All Rents and Profits collected or received by
Mortgagee shall be applied against all expenses of collection, including,
without limitation, attorneys' fees, against costs of operation and management
of the Property and against the indebtedness secured hereby, in whatever order
or priority as to any of the items so mentioned as Mortgagee directs in its sole
subjective discretion and without regard to the adequacy of its security.
Neither the exercise by Mortgagee of any rights under this Section nor the
application of any Rents and Profits to the secured indebtedness shall cure or
be deemed a waiver of any default hereunder. The assignment of Rents and Profits
hereinabove granted shall continue in full force and effect during any period of
foreclosure or redemption with respect to the Property. Mortgagor has executed
an Assignment of Leases and Rents dated of even date herewith (the "Assignment")
in favor of Mortgagee covering all of the right, title and interest of
Mortgagor, as landlord, lessor or licensor, in and to any leases, licenses and
occupancy agreements relating to all or portions of the Property. All rights and
remedies granted to Mortgagee under the Assignment shall be in addition to and
cumulative of all rights and remedies granted to Mortgagee hereunder.
1.12 Leases and Licenses.
-------------------
(a) Prior to execution of any leases of space in the Improvements
after the date hereof, Mortgagor shall submit to Mortgagee, for Mortgagee's
prior approval, which approval shall not be unreasonably withheld, a copy of the
form lease Mortgagor plans to use in leasing space in the Improvements. All
leases of space in the Improvements shall be on terms consistent with the terms
for similar leases in the market area of the Real Estate, shall provide for free
rent only if the same is consistent with prevailing market conditions and shall
provide for market rents then prevailing in the market area of the Real Estate.
Such leases shall also provide for security deposits in reasonable amounts.
Mortgagor shall also submit to Mortgagee for Mortgagee's approval, which
approval shall not be unreasonably withheld, prior to the execution thereof, any
proposed lease, license or occupancy agreement of the Improvements or any
portion thereof that differs materially and adversely from the aforementioned
form lease. Mortgagor shall not execute any lease, license or occupancy
agreement for all or a substantial portion of the Property, except for an actual
occupancy by the tenant, lessee or licensee thereunder, and shall at all times
promptly and faithfully perform, or cause to be performed, all of the covenants,
conditions and agreements contained in all
15
leases, licenses and occupancy agreements with respect to the Property, now or
hereafter existing, on the part of the landlord, lessor or licensor thereunder
to be kept and performed. Mortgagor shall furnish to Mortgagee, within ten (10)
days after a request by Mortgagee to do so, a current rent roll certified by
Mortgagor as being true and correct containing the names of all tenants, lessees
and licensees with respect to the Property, the terms of their respective
leases, licenses or occupancy agreements, the spaces occupied and the rentals or
fees payable thereunder and the amount of each tenant's security deposit. Upon
the request of Mortgagee, Mortgagor shall deliver to Mortgagee a copy of each
such lease, license and occupancy agreement. Mortgagor shall not do or suffer to
be done any act that might result in a default by the landlord, lessor or
licensor under any such lease, license or occupancy agreement or allow the
tenant, lessee or licensee thereunder to withhold payment or rent and, except as
otherwise expressly permitted by the terms of Section 1.12 hereof, shall not
further assign any such lease, license or occupancy agreement or any such rents.
Mortgagor, at no cost or expense to Mortgagee, shall enforce, short of
termination, the performance and observance of each and every condition and
covenant of each of the parties under such leases. Mortgagor shall not, without
the prior written consent of Mortgagee, modify any of the leases, terminate or
accept the surrender of any leases, waive or release any other party from the
performance or observance of any obligation or condition under such leases
except in the normal course of business in a manner which is consistent with
sound and customary leasing and management practices for similar properties in
the community in which the Property is located. Mortgagor shall not permit the
prepayment of any rents under any of the leases for more than one (1) month
prior to the due date thereof.
(b) Each lease, license and occupancy agreement executed after the
date hereof affecting any of the Real Estate or the Improvements must provide,
in a manner approved by Mortgagee, that the tenant, lessee or licensee, as
appropriate, will recognize as its landlord, lessor or licensor and attorn to
any person succeeding to the interest of Mortgagor upon any foreclosure of this
Mortgage or deed in lieu of foreclosure. Each such lease, license and occupancy
agreement shall also provide that, upon request of said successor-in-interest,
the tenant, lessee or licensee shall execute and deliver an instrument or
instruments confirming its attornment as provided for in this Section; provided,
however, that neither Mortgagee nor any successor-in-interest shall be bound by
any payment of rental for more than one (1) month in advance, or any amendment
or modification of said lease or rental agreement made without the express
written consent of Mortgagee or said successor-in-interest.
(c) Upon the occurrence of a default under this Mortgage which is not
cured within any applicable grace period, whether before or after the whole
principal sum secured hereby is declared to be immediately due or whether before
or after the institution of legal proceedings to foreclose this Mortgage,
forthwith, upon demand of Mortgagee, Mortgagor shall surrender to Mortgagee and
Mortgagee shall be entitled to take actual possession of the Property or any
part thereof personally, or by its agent or attorneys. In such event, Mortgagee
shall have, and Mortgagor hereby gives and grants to Mortgagee, the right, power
and authority to make and enter into leases, licenses and occupancy agreements
with respect to the Property or portions thereof for such rents and for such
periods of occupancy and upon conditions and provisions as Mortgagee may deem
desirable in its sole discretion, and Mortgagor expressly acknowledges and
agrees that the term of such lease, license or occupancy agreement may extend
beyond the date of any
16
foreclosure sale at the Property; it being the intention of Mortgagor that in
such event Mortgagee shall be deemed to be and shall be the attorney-in-fact of
Mortgagor for the purpose of making and entering into leases, licenses or
occupancy agreements of parts or portions of the Property for the rents and upon
the terms, conditions and provisions deemed desirable to Mortgagee in its sole
discretion and with like effect as if such leases, licenses or occupancy
agreements had been made by Mortgagor as the owner in fee simple of the Property
free and clear of any conditions or limitations established by this Mortgage.
The power and authority hereby given and granted by Mortgagor to Mortgagee shall
be deemed to be coupled with an interest, shall not be revocable by Mortgagor so
long as any indebtedness secured hereby is outstanding, shall survive the
voluntary or involuntary dissolution of Mortgagor and shall not be affected by
any disability or incapacity suffered by Mortgagor subsequent to the date
hereof. In connection with any action taken by Mortgagee pursuant to this
Section, Mortgagee shall not be liable for any loss sustained by Mortgagor
resulting from any failure to let the Property, or any part thereof, or from any
other act or omission of Mortgagee in managing the Property, nor shall Mortgagee
be obligated to perform or discharge any obligation, duty or liability under any
lease, license or occupancy agreement covering the Property or any part thereof
or under or by reason of this instrument or the exercise of rights or remedies
hereunder. Mortgagor shall, and does hereby, indemnify Mortgagee for, and hold
Mortgagee harmless from, any and all claims, actions, demands, liabilities, loss
or damage which may or might be incurred by Mortgagee under any such lease,
license or occupancy agreement or under this Mortgage or by the exercise of
rights or remedies hereunder and from any and all claims and demands whatsoever
which may be asserted against Mortgagee by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants or
agreements contained in any such lease, license or occupancy agreement other
than those finally determined to have resulted solely from the gross negligence
or willful misconduct of Mortgagee. Should Mortgagee incur any such liability,
the amount thereof, including, without limitation, costs, expenses and
attorneys' fees, together with interest thereon at the Default Interest Rate
from the date incurred by Mortgagee until actually paid by Mortgagor, shall be
immediately due and payable to Mortgagee by Mortgagor on demand and shall be
secured hereby and by all of the other Loan Documents securing all or any part
of the indebtedness evidenced by the Loan Agreement. Nothing in this Section
shall impose on Mortgagee any duty, obligation or responsibility for the
control, care, management or repair of the Property, or for the carrying out of
any of the terms and conditions of any such lease, license or occupancy
agreement, nor shall it operate to make Mortgagee responsible or liable for any
waste committed on the Property by the tenants or by any other parties or for
any dangerous or defective condition of the Property, or for any negligence in
the management, upkeep, repair or control of the Property. Mortgagor hereby
assents to, ratifies and confirms any and all actions of Mortgagee with respect
to the Property taken under this Section.
1.13 Alienation and Further Encumbrances. Mortgagor acknowledges that
-----------------------------------
Mortgagee has relied upon the principals of Mortgagor and their experience in
owning and operating properties similar to the Property in connection with the
closing of the loan evidenced by the Loan Agreement. Accordingly, except as
specifically allowed hereinbelow in this Section and notwithstanding anything to
the contrary contained in Section 4.6 hereof, in the event that the Property or
any part thereof or interest therein shall be sold, conveyed, disposed of,
alienated,
17
hypothecated, leased (except to tenants of space in the Improvements in
accordance with the provisions of Section 1.12 hereof), assigned, pledged,
mortgaged, further encumbered or otherwise transferred or Mortgagor shall be
divested of its title to the Property or any interest therein, in any manner or
way, whether voluntarily or involuntarily, without the prior written consent of
Mortgagee being first obtained, which consent may be withheld in Mortgagee's
sole discretion, then, the same shall constitute a default hereunder and
Mortgagee shall have the right, at its option, to declare any or all of the
indebtedness secured hereby, irrespective of the maturity date specified in the
Loan Agreement, immediately due and payable and to otherwise exercise any of its
other rights and remedies contained in Article III hereof. If such acceleration
is during any period when a prepayment fee is payable pursuant to the provisions
set forth in the Loan Agreement, then, in addition to all of the foregoing, such
prepayment fee shall also then be immediately due and payable to the same end as
though Mortgagor were prepaying the entire indebtedness secured hereby on the
date of such acceleration. Notwithstanding the foregoing, however, any
involuntary transfer caused by the death of Mortgagor or any shareholder, joint
venturer, or beneficial owner of a trust shall not be a default under this
Mortgage so long as Mortgagor is reconstituted, if required, following such
death and so long as those persons responsible for the management of the
Property remain unchanged as a result of such death or any replacement
management is approved by Mortgagee.
1.14 Payment of Utilities, Assessments, Charges, Etc. Mortgagor shall pay
-----------------------------------------------
when due all utility charges which are incurred by Mortgagor or which may become
a charge or lien against any portion of the Property for gas, electricity, water
and sewer services furnished to the Real Estate and/or the Improvements and all
other assessments or charges of a similar nature, or assessments payable
pursuant to any restrictive covenants, whether public or private, affecting the
Real Estate and/or the Improvements or any portion thereof, whether or not such
assessments or charges are or may become liens thereon.
1.15 Access Privileges and Inspections. Mortgagee and the agents,
---------------------------------
representatives and employees of Mortgagee shall, subject to the rights of
tenants, have full and free access to the Real Estate and the Improvements and
any other location where books and records concerning the Property are kept at
all reasonable times for the purposes of inspecting the Property and of
examining, copying and making extracts from the books and records of Mortgagor
relating to the Property. Mortgagor shall lend assistance to all such agents,
representatives and employees of Mortgagee.
1.16 Waste; Alteration of Improvements. Mortgagor shall not commit,
---------------------------------
suffer or permit any waste on the Property nor take any actions that might
invalidate any insurance carried on the Property. Mortgagor shall maintain the
Property in good condition and repair. No part of the Improvements may be
removed, demolished or materially altered, without the prior written consent of
Mortgagee. Without the prior written consent of Mortgagee, Mortgagor shall not
commence construction of any improvements on the Real Estate other than
improvements required for the maintenance or repair of the Property.
1.17 Zoning. Without the prior written consent of Mortgagee, Mortgagor
------
shall not seek, make, suffer, consent to or acquiesce in any change in the
zoning or conditions of use of the Real
18
Estate or the Improvements. Mortgagor shall comply with and make all payments
required under the provisions of any covenants, conditions or restrictions
affecting the Real Estate or the Improvements. Mortgagor shall comply with all
existing and future requirements of all governmental authorities having
jurisdiction over the Property. Mortgagor shall keep all licenses, permits,
franchises and other approvals necessary for the operation of the Property in
full force and effect. If, under applicable zoning provisions, the use of all or
any part of the Real Estate or the Improvements is or becomes a nonconforming
use, Mortgagor shall not cause or permit such use to be discontinued or
abandoned without the prior written consent of Mortgagee. Further, without
Mortgagee's prior written consent, Mortgagor shall not file or subject any part
of the Real Estate or the Improvements to any declaration of condominium or co-
operative or convert any part of the Real Estate or the Improvements to a
condominium, co-operative or other form of multiple ownership and governance.
1.18 Financial Statements and Books and Records. Mortgagor shall keep
------------------------------------------
accurate books and records of account of the Property and its own financial
affairs sufficient to permit the preparation of financial statements therefrom
in accordance with generally accepted accounting principles. Mortgagee and its
duly authorized representatives shall have the right to examine, copy and audit
Mortgagor's records and books of account at all reasonable times.
1.19 Further Documentation. Mortgagor shall, on the request of Mortgagee
---------------------
and at the expense of Mortgagor: (a) promptly correct any defect, error or
omission which may be discovered in the contents of this Mortgage or in the
contents of any of the other Loan Documents; (b) promptly execute, acknowledge,
deliver and record or file such further instruments (including, without
limitation, further mortgages, deeds of trust, security deeds, security
agreements, financing statements, continuation statements and assignments of
rents or leases) and promptly do such further acts as may be necessary,
desirable or proper to carry out more effectively the purposes of this Mortgage
and the other Loan Documents and to subject to the liens and security interests
hereof and thereof any property intended by the terms hereof and thereof to be
covered hereby and thereby, including specifically, but without limitation, any
renewals, additions, substitutions, replacements or appurtenances to the
Property; (c) promptly execute, acknowledge, deliver, procure and record or file
any document or instrument (including specifically any financing statement)
deemed advisable by Mortgagee to protect, continue or perfect the liens or the
security interests hereunder against the rights or interests of third persons;
and (d) promptly furnish to Mortgagee, upon Mortgagee's request, a duly
acknowledged written statement and estoppel certificate addressed to such party
or parties as directed by Mortgagee and in form and substance supplied by
Mortgagee, setting forth all amounts due under the Loan Agreement, stating
whether any event has occurred which, with the passage of time or the giving of
notice or both, would constitute an event of default hereunder, stating whether
any offsets or defenses exist against the indebtedness secured hereby and
containing such other matters as Mortgagee may reasonably require.
1.20 Payment of Costs; Reimbursement to Mortgagee. Mortgagor shall pay
--------------------------------------------
all costs and expenses of every character incurred in connection with the
closing of the loan evidenced by the Loan Agreement and secured hereby or
otherwise attributable or chargeable to Mortgagor as the owner of the Property,
including, without limitation, appraisal fees, recording fees,
19
documentary, stamp, mortgage or intangible taxes, title policy premiums and
title search fees, uniform commercial code/tax lien/litigation search fees,
escrow fees and attorneys' fees. If Mortgagor defaults in any such payment,
which default is not cured within any applicable grace or cure period, Mortgagee
may pay the same and Mortgagor shall reimburse Mortgagee on demand for all such
costs and expenses incurred or paid by Mortgagee, together with such interest
thereon at the Default Interest Rate from and after the date of Mortgagee's
making such payment until reimbursement thereof by Mortgagor. Any such sums
disbursed by Mortgagee, together with such interest thereon, shall be additional
indebtedness of Mortgagor secured by this Mortgage and by all of the other Loan
Documents securing all or any part of the indebtedness evidenced by the Loan
Agreement. Further, Mortgagor shall promptly notify Mortgagee in writing of any
litigation or threatened litigation affecting the Property, or any other demand
or claim which, if enforced, could impair or threaten to impair Mortgagee's
security hereunder. Without limiting or waiving any other rights and remedies of
Mortgagee hereunder, if Mortgagor fails to perform any of its covenants or
agreements contained in this Mortgage or in any of the other Loan Documents and
such failure is not cured within any applicable grace or cure period, or if any
action or proceeding of any kind (including, but not limited to, any bankruptcy,
insolvency, arrangement, reorganization or other debtor relief proceeding) is
commenced which might affect Mortgagee's interest in the Property or Mortgagee's
right to enforce its security, then Mortgagee may, at its option, with or
without notice to Mortgagor, make any appearances, disburse any sums and take
any actions as may be necessary or desirable to protect or enforce the security
of this Mortgage or to remedy the failure of Mortgagor to perform its covenants
and agreements (without, however, waiving any default of Mortgagor). Mortgagor
agrees to pay on demand all expenses of Mortgagee incurred with respect to the
foregoing (including, but not limited to, fees and disbursements of counsel),
together with interest thereon at the Default Interest Rate from and after the
date on which Mortgagee incurs such expenses until reimbursement thereof by
Mortgagor. Any such expenses so incurred by Mortgagee, together with interest
thereon as provided above, shall be additional indebtedness of Mortgagor secured
by this Mortgage and by all of the other Loan Documents securing all or any part
of the indebtedness evidenced by the Loan Agreement. The necessity for any such
actions and of the amounts to be paid shall be determined by Mortgagee in its
discretion. Mortgagee is hereby empowered to enter and to authorize others to
enter upon the Property or any part thereof for the purpose of performing or
observing any such defaulted term, covenant or condition without thereby
becoming liable to Mortgagor or any person in possession holding under
Mortgagor. Mortgagor hereby acknowledges and agrees that the remedies set forth
in this Section 1.20 shall be exercisable by Mortgagee, and any and all payments
made or costs or expenses incurred by Mortgagee in connection therewith shall be
secured hereby and shall be, without demand, immediately repaid by Mortgagor
with interest thereon at the Default Interest Rate, notwithstanding the fact
that such remedies were exercised and such payments made and costs incurred by
Mortgagee after the filing by Mortgagor of a voluntary case or the filing
against Mortgagor of an involuntary case pursuant to or within the meaning of
the Bankruptcy Reform Act of 1978, as amended, Title 11 U.S.C., or after any
similar action pursuant to any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or
hereafter, in effect, which may be or become applicable to Mortgagor, Mortgagee,
any guarantor or indemnitor, the secured indebtedness or any of the Loan
Documents. Mortgagor hereby indemnifies and holds Mortgagee harmless from and
against all loss, cost and expenses with respect to any default hereof, any
liens (i.e., judgments,
20
mechanics' and materialmen's liens, or otherwise), charges and encumbrances
filed against the Property, and from any claims and demands for damages or
injury, including claims for property damage, personal injury or wrongful death,
arising out of or in connection with any accident or fire or other casualty on
the Real Estate or the Improvements or any nuisance made or suffered thereon,
including, in any case, attorneys' fees, costs and expenses as aforesaid,
whether at pretrial, trial or appellate level, and such indemnity shall survive
payment in full of the indebtedness secured hereby. This Section shall not be
construed to require Mortgagee to incur any expenses, make any appearances or
take any actions.
1.21 Security Interest. This Mortgage is also intended to encumber and
-----------------
create a security interest in, and Mortgagor hereby grants to Mortgagee a
security interest in all fixtures, chattels, accounts, equipment, inventory,
contract rights, general intangibles and other personal property included within
the Property, all renewals, replacements of any of the aforementioned items, or
articles in substitution therefor or in addition thereto or the proceeds thereof
(said property is hereinafter referred to collectively as the "Collateral"),
whether or not the same shall be attached to the Real Estate or the Improvements
in any manner. It is hereby agreed that to the extent permitted by law, all of
the foregoing property is to be deemed and held to be a part of and affixed to
the Real Estate and the Improvements. The foregoing security interest shall
also cover Mortgagor's leasehold interest in any of the foregoing property which
is leased by Mortgagor. Notwithstanding the foregoing, all of the foregoing
property shall be owned by Mortgagor and no leasing or installment sales or
other financing or title retention agreement in connection therewith shall be
permitted without the prior written approval of Mortgagee. Mortgagor shall,
from time to time upon the request of Mortgagee, supply Mortgagee with a current
inventory of all of the property in which Mortgagee is granted a security
interest hereunder, in such detail as Mortgagee may require. Mortgagor shall
promptly replace all of the Collateral subject to the lien or security interest
of this Mortgage when worn or obsolete with Collateral comparable to the worn
out or obsolete Collateral when new and will not, without the prior written
consent of Mortgagee, remove from the Real Estate or the Improvements any of the
Collateral subject to the lien or security interest of this Mortgage except such
as is replaced by an article of equal suitability and value as above provided,
owned by Mortgagor free and clear of any lien or security interest except that
created by this Mortgage and the other Loan Documents and except as otherwise
expressly permitted by the terms of Section 1.13 of this Mortgage. All of the
Collateral shall be kept at the location of the Real Estate except as otherwise
required by the terms of the Loan Documents. Mortgagor shall not use any of
the Collateral in violation of any applicable statute, ordinance or insurance
policy.
1.22 Security Agreement. This Mortgage constitutes a security agreement
------------------
between Mortgagor and Mortgagee with respect to the Collateral in which
Mortgagee is granted a security interest hereunder, and, cumulative of all other
rights and remedies of Mortgagee hereunder, Mortgagee shall have all of the
rights and remedies of a secured party under any applicable Uniform Commercial
Code. Mortgagor hereby agrees to execute and deliver on demand and hereby
irrevocably constitutes and appoints Mortgagee the attorney-in-fact of Mortgagor
to execute and deliver and, if appropriate, to file with the appropriate filing
officer or office such security agreements, financing statements, continuation
statements or other instruments as Mortgagee may request or require in order to
impose, perfect or continue the perfection of the lien or security
21
interest created hereby. Except with respect to Rents and Profits to the extent
specifically provided herein to the contrary, Mortgagee shall have the right of
possession of all cash, securities, instruments, negotiable instruments,
documents, certificates and any other evidences of cash or other property or
evidences of rights to cash rather than property, which are now or hereafter a
part of the Property and Mortgagor shall promptly deliver the same to Mortgagee,
endorsed to Mortgagee, without further notice from Mortgagee. Mortgagor agrees
to furnish Mortgagee with notice of any change in the name, identity, corporate
structure, residence, or principal place of business or mailing address of
Mortgagor within ten (10) days of the effective date of any such change. Upon
the occurrence of any default hereunder not cured within any applicable grace or
cure period, Mortgagee shall have the rights and remedies as prescribed in the
Mortgage, or as prescribed by general law, or as prescribed by any applicable
Uniform Commercial Code, all at Mortgagee's election. Any disposition of the
Collateral may be conducted by an employee or agent of Mortgagee. Any person,
including both Mortgagor and Mortgagee, shall be eligible to purchase any part
or all of the Collateral at any such disposition. Expenses of retaking, holding,
preparing for sale, selling or the like (including, without limitation,
Mortgagee's attorneys' fees and legal expenses), together with interest thereon
at the Default Interest Rate from the date incurred by Mortgagee until actually
paid by Mortgagor, shall be paid by Mortgagor on demand and shall be secured by
this Mortgage and by all of the other Loan Documents securing all or any part of
the indebtedness evidenced by the Loan Agreement. Mortgagee shall have the right
to enter upon the Real Estate and the Improvements or any real property where
any of the property which is the subject of the security interest granted herein
is located to take possession of, assemble and collect the same or to render it
unusable, or Mortgagor, upon demand of Mortgagee, shall assemble such property
and make it available to Mortgagee at the Real Estate, a place which is hereby
deemed to be reasonably convenient to Mortgagee and Mortgagor. If notice is
required by law, Mortgagee shall give Mortgagor at least ten (10) days' prior
written notice of the time and place of any public sale of such property or of
the time of or after which any private sale or any other intended disposition
thereof is to be made, and if such notice is sent to Mortgagor, as the same is
provided for the mailing of notices herein, it is hereby deemed that such notice
shall be and is reasonable notice to Mortgagor. No such notice is necessary for
any such property which is perishable, threatens to decline speedily in value or
is of a type customarily sold on a recognized market. Any sale made pursuant to
the provisions of this Section shall be deemed to have been a public sale
conducted in a commercially reasonable manner if held contemporaneously with the
foreclosure sale as provided in Section 3.1(e) hereof upon giving the same
notice with respect to the sale of the Property hereunder as is required under
said Section 3.1(e). Furthermore, to the extent permitted by law, in conjunction
with, in addition to or in substitution for the rights and remedies available to
Mortgagee pursuant to any applicable Uniform Commercial Code:
(a) In the event of a foreclosure sale, the Property may, at the
option of Mortgagee, be sold as a whole; and
(b) It shall not be necessary that Mortgagee take possession of the
aforementioned Collateral, or any part thereof, prior to the time that any sale
pursuant to the provisions of this Section is conducted and it shall not be
necessary that said Collateral, or any part thereof, be present at the location
of such sale; and
22
(c) Mortgagee may appoint or delegate any one or more persons as
agent to perform any act or acts necessary or incident to any sale held by
Mortgagee, including the sending of notices and the conduct of the sale, but in
the name and on behalf of Mortgagee.
The name and address of Mortgagor (as Debtor under any applicable Uniform
Commercial Code) are:
Cardiac Control Systems, Inc.
Three Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
The name and address of Mortgagee (as Secured Party under any applicable Uniform
Commercial Code) are:
Coast Business Credit
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
1.23 Easements and Rights-of-Way. Mortgagor shall not grant any easement
---------------------------
or right-of-way with respect to all or any portion of the Real Estate or the
Improvements without the prior written consent of Mortgagee. The purchaser at
any foreclosure sale hereunder may, at its discretion, disaffirm any easement or
right-of-way granted in violation of any of the provisions of this Mortgage and
may take immediate possession of the Property free from, and despite the terms
of, such grant of easement or right-of-way. If Mortgagee consents to the grant
of an easement or right-of-way, Mortgagee agrees to grant such consent provided
that Mortgagee is paid a standard review fee together with all other expenses,
including, without limitation, attorneys' fees, incurred by Mortgagee in the
review of Mortgagor's request and in the preparation of documents effecting the
subordination.
1.24 Compliance with Laws. Mortgagor shall at all times comply with all
--------------------
statutes, ordinances, regulations and other governmental or quasi-governmental
requirements and private covenants now or hereafter relating to the ownership,
construction, use or operation of the Property, including, but not limited to,
those concerning employment and compensation of persons engaged in operation and
maintenance of the Property and any environmental or ecological requirements,
even if such compliance shall require structural changes to the Property;
provided, however, that, Mortgagor may, upon providing Mortgagee with security
-------- ------- ----
satisfactory to Mortgagee, proceed diligently and in good faith to contest the
validity or applicability of any such statute, ordinance, regulation or
requirement so long as during such contest the Property shall not be subject to
any lien, charge, fine or other liability and shall not be in danger of being
forfeited, lost or closed. Mortgagor shall not use or occupy, or allow the use
or occupancy of, the Property in any manner which violates any lease of or any
other agreement applicable to the Property or any applicable law, rule,
regulation or order or which constitutes a public or private nuisance or which
makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto.
23
1.25 Additional Taxes. In the event of the enactment after this date of
----------------
any law of the state where the Property is located or of any other governmental
entity deducting from the value of the Property for the purpose of taxation any
lien or security interest thereon, or imposing upon Mortgagee the payment of the
whole or any part of the taxes or assessments or charges of liens herein
required to be paid by Mortgagor, or changing in any way the laws relating to
the taxation of mortgages or security agreements or debts secured by mortgages
or security agreements or the interest of the Mortgagee or secured party in the
property covered thereby, or the manner of collection of such taxes, so as to
adversely affect this Mortgage or the indebtedness secured hereby or Mortgagee,
then, and in any such event, Mortgagor, upon demand by Mortgagee, shall pay such
taxes, assessments, charges or liens, or reimburse Mortgagee therefor; provided,
--------
however, that if in the opinion of counsel for Mortgagee (a) it might be
------- ----
unlawful to require Mortgagor to make such payment, or (b) the making of such
payment might result in the imposition of interest beyond the maximum amount
permitted by law, then and in either such event, Mortgagee may elect, by notice
in writing given to Mortgagor, to declare all of the indebtedness secured hereby
to be and become due and payable in full thirty (30) days from the giving of
such notice.
1.26 Secured Indebtedness; Future Advances. It is understood and agreed
-------------------------------------
that this Mortgage shall secure payment of not only the indebtedness evidenced
by the Loan Agreement but also any and all substitutions, replacements, renewals
and extensions thereof, any and all indebtedness and obligations arising
pursuant to the terms hereof and any and all indebtedness and obligations
arising pursuant to the terms of any of the other Loan Documents, all of which
indebtedness is equally secured with and has the same priority as any amounts
advanced as of the date hereof. This Mortgage is given to secure the
indebtedness of up to $500,000 of the Mortgagor to the Mortgagee evidenced by
the Loan Agreement secured hereby, and any disbursements made by the Mortgagee
for the payment of taxes and the fees and costs of foreclosure, which advances
shall be secured hereby. The total amount of indebtedness secured hereby may
increase or decrease from time to time. The provisions of this Section 1.26
shall not be construed to imply any obligation on Mortgagee to make any future
advances, it being the intention of the parties that any future advances shall
be solely at the discretion and option of the Mortgagee. Any reference to "Loan
Agreement" in this Mortgage shall be construed to reference any future advances
made pursuant to this Section 1.26.
1.27 Mortgagor's Waivers. To the full extent permitted by law, Mortgagor
--------------------
agrees that Mortgagor shall not at any time insist upon, plead, claim or take
the benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, moratorium or extension, or any law now or
hereafter in force providing for the reinstatement of the indebtedness secured
hereby prior to any sale of the Property to be made pursuant to any provisions
contained herein or prior to the entering of any decree, judgment or order of
any court of competent jurisdiction, or any right under any statute to redeem
all or any part of the Property so sold. Mortgagor, for Mortgagor and
Mortgagor's successors and assigns, and for any and all persons ever claiming
any interest in the Property, to the full extent permitted by law, hereby
knowingly, intentionally and voluntarily with and upon the advice of competent
counsel: (a) waives, releases, relinquishes and forever forgoes all rights of
valuation, appraisement, stay of execution, reinstatement and notice of election
or intention to mature or declare due the secured indebtedness (except such
notices as are specifically provided for herein); (b) waives, releases,
relinquishes and
24
forever forgoes all right to a marshalling of the assets of Mortgagor, including
the Property, to a sale in the inverse order of alienation, or to direct the
order in which any of the Property shall be sold in the event of foreclosure of
the liens and security interests hereby created and agrees that any court having
jurisdiction to foreclose such liens and security interests may order the
Property sold as an entirety; and (c) waives, releases, relinquishes and forever
forgoes all rights and periods of redemption provided under applicable law. To
the full extent permitted by law, Mortgagor shall not have or assert any right
under any statute or rule of law pertaining to the exemption of homestead or
other exemption under any federal, state or local law now or hereafter in
effect, the administration of estates of decedents or other matters whatever to
defeat, reduce or affect the right of Mortgagee under the terms of this Mortgage
to a sale of the Property, for the collection of the secured indebtedness
without any prior or different resort for collection, or the right of Mortgagee
under the terms of this Mortgage to the payment of the indebtedness secured
hereby out of the proceeds of sale of the Property in preference to every other
claimant whatever. Further, Mortgagor hereby knowingly, intentionally and
voluntarily, with and upon the advice of competent counsel, waives, releases,
relinquishes and forever forgoes all present and future statutes of limitations
as a defense to any action to enforce the provisions of this Mortgage or to
collect any of the indebtedness secured hereby the fullest extent permitted by
law. Mortgagor covenants and agrees that upon the commencement of a voluntary or
involuntary bankruptcy proceeding by or against Mortgagor, Mortgagor shall not
seek a supplemental stay or otherwise shall not seek pursuant to 11 U.S.C.
(S)105 or any other provision of the Bankruptcy Reform Act of 1978, as amended,
or any other debtor relief law (whether statutory, common law, case law, or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may
be or become applicable, to stay, interdict, condition, reduce or inhibit the
ability of Mortgagee to enforce any rights of Mortgagee against any guarantor or
indemnitor of the secured obligations or any other party liable with respect
thereto by virtue of any indemnity, guaranty or otherwise.
1.28 Intentionally Omitted.
---------------------
1.29 Contractual Statute of Limitations. Mortgagor hereby agrees that any
----------------------------------
claim or cause of action by Mortgagor against Mortgagee, or any of Mortgagee's
directors, officers, employees, agents, accountants or attorneys, based upon,
arising from or relating to the indebtedness secured hereby, or any other
matter, cause or thing whatsoever, whether or not relating thereto, occurred,
done, omitted or suffered to be done by Mortgagee or by Mortgagee's directors,
officers, employees, agents, accountants or attorneys, whether sounding in
contract or in tort or otherwise, shall be barred unless asserted by Mortgagor
by the commencement of an action or proceeding in a court of competent
jurisdiction by the filing of a complaint within one (1) year after Mortgagor
first acquires or reasonably should have acquired knowledge of the first act,
occurrence or omission upon which such claim or cause of action, or any part
thereof, is based and service of a summons and complaint on an officer of
Mortgagee or any other person authorized to accept service of process on behalf
of Mortgagee, within thirty (30) days thereafter. Mortgagor agrees that such
one (1) year period of time is reasonable and sufficient time for a borrower to
investigate and act upon any such claim or cause of action. The one (1) year
period provided herein shall not be waived, tolled or extended except by the
specific written agreement of Mortgagee. This provision shall survive any
termination of this Mortgage or any of the other Loan Documents.
25
1.30 Intentionally Omitted.
---------------------
1.31 Hazardous Waste and Other Substances.
------------------------------------
(a) Mortgagor hereby represents and warrants to Mortgagee that, as of
the date hereof: (i) to the best of Mortgagor's knowledge, information and
belief, the Property is not in direct or indirect violation of any local, state
or federal law, rule or regulation pertaining to environmental regulation,
contamination or clean-up (collectively, "Environmental Laws"), including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. (S)9601 et seq. and 40 CFR (S)302.1 et seq.),
-- --- -- ---
the Resource Conservation and Recovery Act of 1976 (42 U.S.C. (S)6901 et seq.),
-- ---
the Federal Water Pollution Control Act (33 U.S.C. (S)1251 et seq. and 40 CFR
-- ---
(S)116.1 et seq.), those relating to lead based paint, and the Hazardous
-- ---
Materials Transportation Act (49 U.S.C. (S)1801 et seq.), and the regulations
-- ---
promulgated pursuant to said laws, all as amended; (ii) no hazardous, toxic or
harmful substances, wastes, materials, pollutants or contaminants (including,
without limitation, asbestos, lead based paint, polychlorinated biphenyls,
petroleum products, flammable explosives, radioactive materials, infectious
substances or raw materials which include hazardous constituents) or any other
substances or materials which are included under or regulated by Environmental
Laws (collectively, "Hazardous Substances") are located on or have been handled,
generated, stored, processed or disposed of on or released or discharged from
the Property (including underground contamination) except for those substances
used by Mortgagor in the ordinary course of its business and in compliance with
all Environmental Laws; (iii) the Property is not subject to any private or
governmental lien or judicial or administrative notice or action relating to
Hazardous Substances; (iv) there are no existing or closed underground storage
tanks or other underground storage receptacles for Hazardous Substances on the
Property; (v) Mortgagor has received no notice of, and to the best of
Mortgagor's knowledge and belief, there exists no investigation, action,
proceeding or claim by any agency, authority or unit of government or by any
third party which could result in any liability, penalty, sanction or judgment
under any Environmental Laws with respect to any condition, use or operation of
the Property nor does Mortgagor know of any basis for such a claim; and (vi)
Mortgagor has received no notice of and, to the best of Mortgagor's knowledge
and belief, there has been no claim by any party that any use, operation or
condition of the Property has caused any nuisance or any other liability or
adverse condition on any other property nor does Mortgagor know of any basis for
such a claim.
(b) Mortgagor shall keep or cause the Property to be kept free from
Hazardous Substances (except those substances used by Mortgagor in the ordinary
course of its business and in compliance with all Environmental Laws) and in
compliance with all Environmental Laws, shall not install or use any underground
storage tanks, shall expressly prohibit the use, generation, handling, storage,
production, processing and disposal of Hazardous Substances by all tenants of
space in the Improvements, and, without limiting the generality of the
foregoing, during the term of this Mortgage, shall not install in the
Improvements or permit to be installed in the Improvements asbestos or any
substance containing asbestos.
(c) Mortgagor shall promptly notify Mortgagee if Mortgagor shall
become aware of the possible existence of any Hazardous Substances on the
Property or if Mortgagor shall
26
become aware that the Property is or may be in direct or indirect violation of
any Environmental Laws. Further, immediately upon receipt of the same, Mortgagor
shall deliver to Mortgagee copies of any and all orders, notices, permits,
applications, reports, and other communications, documents and instruments
pertaining to the actual, alleged or potential presence or existence of any
Hazardous Substances at, on, about, under, within, near or in connection with
the Property. Mortgagor shall, promptly and when and as required by Mortgagee,
at Mortgagor's sole cost and expense, take all actions as shall be necessary or
advisable for the clean-up of any and all portions of the Property or other
affected property, including, without limitation, all investigative, monitoring,
removal, containment and remedial actions in accordance with all applicable
Environmental Laws (and in all events in a manner satisfactory to Mortgagee),
and shall further pay or cause to be paid, at no expense to Mortgagee, all
clean-up, administrative and enforcement costs of applicable governmental
agencies which may be asserted against the Property. In the event Mortgagor
fails to do so, Mortgagee may, but shall not be obligated to, cause the Property
or other affected property to be freed from any Hazardous Substances or
otherwise brought into conformance with Environmental Laws and any and all costs
and expenses incurred by Mortgagee in connection therewith, together with
interest thereon at the Default Interest Rate from the date incurred by
Mortgagee until actually paid by Mortgagor, shall be immediately paid by
Mortgagor on demand and shall be secured by this Mortgage and by all of the
other Loan Documents securing all or any part of the indebtedness evidenced by
the Loan Agreement. Mortgagor hereby grants to Mortgagee and its agents and
employees access to the Property and a license to remove any items deemed by
Mortgagee to be Hazardous Substances and to do all things Mortgagee shall deem
necessary to bring the Property in conformance with Environmental Laws.
Mortgagor covenants and agrees, at Mortgagor's sole cost and expense, to
indemnify, defend (at trial and appellate levels, and with attorneys,
consultants and experts acceptable to Mortgagee), and hold Mortgagee harmless
from and against any and all liens, damages, losses, liabilities, obligations,
settlement payments, penalties, assessments, citations, directives, claims,
litigation, demands, defenses, judgments, suits, proceedings, costs,
disbursements or expenses of any kind or of any nature whatsoever (including,
without limitation, reasonable attorneys', consultants' and experts' fees and
disbursements actually incurred in investigating, defending, settling or
prosecuting any claim, litigation or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against Mortgagee or the
Property, and arising directly or indirectly from or out of: (i) the presence,
release or threat of release of any Hazardous Substances on, in, under or
affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within the control of Mortgagor; (ii)
the violation of any Environmental Laws relating to or affecting the Property,
whether or not caused by or within the control of Mortgagor; (iii) the failure
by Mortgagor to comply fully with the terms and conditions of this Section 1.31;
(iv) the breach of any representation or warranty contained in this Section
1.31; or (v) the enforcement of this Section 1.31, including, without
limitation, the cost of assessment, containment and/or removal of any and all
Hazardous Substances from all or any portion of the Property or any surrounding
areas, the cost of any actions taken in response to the presence, release or
threat of release of any Hazardous Substances on, in, under or affecting any
portion of the Property or any surrounding areas to prevent or minimize such
release or threat of release so that it does not migrate or otherwise cause or
threaten danger to present or future public health, safety, welfare or the
environment, and costs incurred to comply with the Environmental Laws in
connection with all or
27
any portion of the Property or any surrounding areas. The indemnity set forth in
this Section 1.31(c) shall also include any diminution in the value of the
security afforded by the Property or any future reduction in the sales price of
the Property by reason of any matter set forth in this Section 1.31(c).
Mortgagee's rights under this Section shall survive payment in full of the
indebtedness secured hereby and shall be in addition to all other rights of
Mortgagee under this Mortgage, the Loan Agreement and the other Loan Documents.
(d) Upon Mortgagee's request, at any time after the occurrence of a
default hereunder or at such other time as Mortgagee has reasonable grounds to
believe that Hazardous Substances are or have been released, stored or disposed
of on or around the Property or that the Property may be in violation of the
Environmental Laws, Mortgagor shall provide, at Mortgagor's sole cost and
expense, an inspection or audit of the Property prepared by a hydrogeologist or
environmental engineer or other appropriate consultant approved by Mortgagee
indicating the presence or absence of Hazardous Substances on the Property or an
inspection or audit of the Improvements prepared by an engineering or consulting
firm approved by Mortgagee indicating the presence or absence of friable
asbestos or substances containing asbestos on the Property. If Mortgagor fails
to provide such inspection or audit within thirty (30) days after such request,
Mortgagee may order the same, and Mortgagor hereby grants to Mortgagee and its
employees and agents access to the Property and a license to undertake such
inspection or audit. The cost of such inspection or audit, together with
interest thereon at the Default Interest Rate from the date incurred by
Mortgagee until actually paid by Mortgagor, shall be immediately due and payable
to Mortgagee by Mortgagor on demand and shall be secured hereby and by all of
the other Loan Documents securing all or any part of the indebtedness evidenced
by the Loan Agreement.
1.32 Indemnification; Subrogation.
----------------------------
(a) Mortgagor shall indemnify, defend and hold Mortgagee harmless
against: (i) any and all claims for brokerage, leasing, finders or similar fees
which may be made relating to the Property or the secured indebtedness, and (ii)
any and all liability, obligations, losses, damages, penalties, claims, actions,
suits, costs and expenses (including Mortgagee's reasonable attorneys' fees,
together with reasonable appellate counsel fees, if any) of whatever kind or
nature which may be asserted against, imposed on or incurred by Mortgagee in
connection with the secured indebtedness, this Mortgage, the Property, or any
part thereof, or the exercise by Mortgagee of any rights or remedies granted to
it under this Mortgage; provided, however, that nothing herein shall be
construed to obligate Mortgagor to indemnify, defend and hold harmless Mortgagee
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses enacted against, imposed
on or incurred by Mortgagee by reason of Mortgagee's willful misconduct or gross
negligence.
(b) If Mortgagee is made a party defendant to any litigation or any
claim is threatened or brought against Mortgagee concerning the secured
indebtedness, this Mortgage, the Property, or any part thereof, or any interest
therein, or the construction, maintenance, operation or occupancy or use
thereof, then Mortgagor shall indemnify, defend and hold Mortgagee harmless from
and against all liability by reason of said litigation or claims, including
reasonable attorneys' fees (together with reasonable appellate counsel fees, if
any) and expenses incurred by Mortgagee
28
in any such litigation or claim, whether or not any such litigation or claim is
prosecuted to judgment. If Mortgagee commences an action against Mortgagor to
enforce any of the terms hereof or to prosecute any breach by Mortgagor of any
of the terms hereof or to recover any sum secured hereby, Mortgagor shall pay to
Mortgagee its reasonable attorneys' fees (together with reasonable appellate
counsel fees, if any) and expenses. The right to such attorneys' fees (together
with reasonable appellate counsel fees, if any) and expenses shall be deemed to
have accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If Mortgagor breaches any
term of this Mortgage, Mortgagee may engage the services of an attorney or
attorneys to protect its rights hereunder, and in the event of such engagement
following any breach by Mortgagor, Mortgagor shall pay Mortgagee reasonable
attorneys' fees (together with reasonable appellate counsel fees, if any) and
expenses incurred by Mortgagee, whether or not an action is actually commenced
against Mortgagor by reason of such breach. All references to "attorneys" in
this Subsection and elsewhere in this Mortgage shall include without limitation
any attorney or law firm engaged by Mortgagee and Mortgagee's in-house counsel,
and all references to "fees and expenses" in this Subsection and elsewhere in
this Mortgage shall include without limitation any fees of such attorney or law
firm and any allocation charges and allocation costs of Mortgagee's in-house
counsel.
(c) A waiver of subrogation shall be obtained by Mortgagor from its
insurance carrier and, consequently, Mortgagor waives any and all right to claim
or recover against Mortgagee, its officers, employees, agents and
representatives, for loss of or damage to Mortgagor, the Property, Mortgagor's
property or the property of others under Mortgagor's control from any cause
insured against or required to be insured against by the provisions of this
Mortgage.
(d) Mortgagor hereby indemnifies and holds harmless the law firm of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and all of their attorneys from any and all
loss, cost, expense, damage or claim, whether or not valid, including, without
limitation, attorneys' fees and disbursements, arising under or in any way
connected with Section 697.10 of Florida Statutes or any similar law. Mortgagor
hereby verifies and confirms, to the best of its knowledge, all factual
information in this Mortgage, including the accuracy and correctness of the
legal description set forth herein. In the event any factual errors are found
in this Mortgage or in the legal description, Mortgagor and the Mortgagee shall,
at Mortgagor's sole cost and expense, promptly correct or cause to be corrected
subsequent to the date hereof any and all such errors. Mortgagor shall promptly
pay or cause to be paid all damages, claims or any other costs whatsoever
arising under or in any way connected with any claim, whether or not valid,
arising under or in any way connected with Section 697.10 of the Florida
Statutes, or any similar law due to or caused by any inaccuracy or incorrectness
of factual information or inaccuracy or incorrectness of the legal description
set forth herein. Notwithstanding the foregoing, all rights of Mortgagor and
Mortgagee are preserved against Mortgagor's and Mortgagee's title insurers, the
surveyor, the engineer, if any, and the appraiser, if any, and, after payment is
made by Mortgagor, Mortgagor shall be subrogated to such rights.
1.33 Negative Covenants with Respect to Indebtedness, Operations and
---------------------------------------------------------------
Fundamental Changes of Mortgagor. Mortgagor hereby represents, warrants and
--------------------------------
covenants, as of the date hereof and until such time as the indebtedness secured
hereby is paid in full and the Loan Agreement has terminated in accordance with
its terms, that Mortgagor:
29
(a) will comply with all covenants applicable to it in the Loan
Documents;
(b) will not possess or assign the Property or incidental personal
property necessary for the operation of the Property for other than a business
or company purpose;
(c) will not sell, encumber or otherwise dispose of all or
substantially all of the Property or incidental personal property necessary for
the operation of the Property;
(d) will not hold title to Mortgagor's assets other than in
Mortgagor's name; and
(e) will not institute proceedings to be adjudicated bankrupt or
insolvent; or consent to the institution of bankruptcy or insolvency proceedings
against it; or file a petition seeking, or consent to, reorganization or relief
under any applicable federal or state law relating to bankruptcy; or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Mortgagor or a substantial part of Mortgagor's
property; or make any assignment for the benefit of creditors; or admit in
writing its inability to pay its debts generally as they become due; or take any
action in furtherance of any such action.
1.34 Intentionally Omitted.
---------------------
Article II
EVENTS OF DEFAULT
-----------------
2.1 Events of Default. The occurrence of any of the following events
-----------------
shall be a default hereunder:
(a) Mortgagor fails to punctually perform any covenant, agreement,
obligation, term or condition hereof which requires payment of any money to
Mortgagee, subject to applicable grace periods, if any.
(b) Mortgagor fails to provide insurance as required by Section 1.4
hereof or fails to perform any covenant, agreement, obligation, term or
condition set forth in Section 1.16 or 1.31 hereof.
(c) Mortgagor fails to perform any other covenant, agreement,
obligation, term or condition set forth herein other than those otherwise
described in this Section 2.1 and, to the extent such failure or default is
susceptible of being cured, the continuance of such failure or default for
thirty (30) days after written notice thereof from Mortgagee to Mortgagor;
provided, however, that if such default is susceptible of cure but such cure
-----------------
cannot be accomplished with reasonable diligence within said period of time, and
if Mortgagor commences to cure such default promptly after receipt of notice
thereof from Mortgagee, and thereafter prosecutes the curing of such default
with reasonable diligence, such period of time shall be extended for such period
of time as may be necessary to cure such default with reasonable diligence, but
not to exceed an additional sixty (60) days.
30
(d) Any representation or warranty made herein, in or in connection
with any application or commitment relating to the loan evidenced by the Loan
Agreement, or in any of the other Loan Documents to Mortgagee by Mortgagor, by
any principal in Mortgagor or by any indemnitor or guarantor under any indemnity
or guaranty executed in connection with the loan secured hereby is determined by
Mortgagee to have been false or misleading in any material respect at the time
made.
(e) There shall be a sale, conveyance, disposition, alienation,
hypothecation, leasing, assignment, pledge, mortgage, granting of a security
interest in or other transfer or further encumbrancing of the Property,
Mortgagor, or any portion thereof or any interest therein, in violation of
Section 1.13 hereof.
(f) A default occurs under any of the other Loan Documents which has
not been cured within any applicable grace or cure period therein provided.
(g) Mortgagor, any principal in Mortgagor or any indemnitor or
guarantor under any indemnity or guaranty executed in connection with the loan
secured hereby becomes insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors, shall file
a petition in bankruptcy, shall voluntarily be adjudicated insolvent or bankrupt
or shall admit in writing the inability to pay debts as they mature, shall
petition or apply to any tribunal for or shall consent to or shall not contest
the appointment of a receiver, trustee, custodian or similar officer for
Mortgagor, for any such principal of Mortgagor or for any such indemnitor or
guarantor or for a substantial part of the assets of Mortgagor, of any such
principal of Mortgagor or of any such indemnitor or guarantor, or shall commence
any case, proceeding or other action under any bankruptcy, reorganization,
arrangement, readjustment or debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect.
(h) A petition is filed or any case, proceeding or other action is
commenced against Mortgagor, against any principal of Mortgagor or against any
indemnitor or guarantor under any indemnity or guaranty executed in connection
with the loan secured hereby seeking to have an order for relief entered against
it as debtor or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts or other relief under any law
relating to bankruptcy, insolvency, arrangement, reorganization, receivership or
other debtor relief under any law or statute of any jurisdiction whether now or
hereafter in effect or a court of competent jurisdiction enters an order for
relief against Mortgagor, against any principal of Mortgagor or against any
indemnitor or guarantor under any indemnity or guaranty executed in connection
with the loan secured hereby, as debtor, or an order, judgment or decree is
entered appointing, with or without the consent of Mortgagor, of any such
principal of Mortgagor or of any such indemnitor or guarantor, a receiver,
trustee, custodian or similar officer for Mortgagor, for any such principal of
Mortgagor or for any such indemnitor or guarantor, or for any substantial part
of any of the properties of Mortgagor, of any such principal of Mortgagor or of
any such indemnitor or guarantor, and if any such event shall occur, such
petition, case, proceeding, action, order, judgment or decree shall not be
dismissed within sixty (60) days after being commenced.
31
(i) The Property or any part thereof shall be taken on execution or
other process of law in any action against Mortgagor.
(j) Mortgagor abandons all or a portion of the Property.
(k) The holder of any lien or security interest on the Property
(without implying the consent of Mortgagee to the existence or creation of any
such lien or security interest), whether superior or subordinate to this
Mortgage or any of the other Loan Documents, declares a default and such default
is not cured within any applicable grace or cure period set forth in the
applicable document or such holder institutes foreclosure or other proceedings
for the enforcement of its remedies thereunder.
(l) The Property, or any part thereof, is subjected to actual or
threatened waste or to removal, demolition or material alteration so that the
value of the Property is materially diminished thereby and Mortgagee determines
(in its subjective determination) that it is not adequately protected from any
loss, damage or risk associated therewith.
(m) Any dissolution, termination, partial or complete liquidation,
merger or consolidation of Mortgagor.
Article III
REMEDIES
--------
3.1 Remedies Available. If there shall occur a default under this
------------------
Mortgage, and such default has not been cured within any applicable grace or
cure period, then this Mortgage is subject to foreclosure as provided by law and
Mortgagee may, at its option and by or through a trustee, nominee, assignee or
otherwise, to the fullest extent permitted by law, exercise any or all of the
following rights, remedies and recourses, either successively or concurrently:
(a) Acceleration. Accelerate the maturity date of the Loan Agreement
------------
and declare any or all of the indebtedness secured hereby to be immediately due
and payable without any presentment, demand, protest, notice, or action of any
kind whatever (each of which is hereby expressly waived by Mortgagor), whereupon
the same shall become immediately due and payable. Upon any such acceleration,
payment of such accelerated amount shall constitute a prepayment of the
principal balance due under the Loan Agreement and any applicable prepayment fee
provided for therein shall then be immediately due and payable.
(b) Entry on the Property. Either in person or by agent, with or
---------------------
without bringing any action or proceeding, or by a receiver appointed by a court
and without regard to the adequacy of its security, enter upon and take
possession of the Property, or any part thereof, without force or with such
force as is permitted by law and without notice or process or with such notice
or process as is required by law unless such notice and process is waivable, in
which case Mortgagor hereby waives such notice and process, and do any and all
acts and perform any and all work which may be desirable or necessary in
Mortgagee's judgment to complete any unfinished
32
construction on the Real Estate, to preserve the value, marketability or
rentability of the Property, to increase the income therefrom, to manage and
operate the Property or to protect the security hereof and all sums expended by
Mortgagee therefor, together with interest thereon at the Default Interest Rate,
shall be immediately due and payable to Mortgagee by Mortgagor on demand and
shall be secured hereby and by all of the other Loan Documents securing all or
any part of the indebtedness evidenced by the Loan Agreement.
(c) Collect Rents and Profits. With or without taking possession of
-------------------------
the Property, xxx or otherwise collect the Rents and Profits, including those
past due and unpaid.
(d) Appointment of Receiver. Upon, or at any time prior or after,
-----------------------
initiating the exercise of any power of sale, instituting any judicial
foreclosure or instituting any other foreclosure of the liens and security
interests provided for herein or any other legal proceedings hereunder, make
application to a court of competent jurisdiction for appointment of a receiver
for all or any part of the Property, as a matter of strict right and without
notice to Mortgagor and without regard to the adequacy of the Property for the
repayment of the indebtedness secured hereby or the solvency of Mortgagor or any
person or persons liable for the payment of the indebtedness secured hereby, and
Mortgagor does hereby irrevocably consent to such appointment, waives any and
all notices of and defenses to such appointment and agrees not to oppose any
application therefor by Mortgagee, but nothing herein is to be construed to
deprive Mortgagee of any other right, remedy or privilege Mortgagee may now have
under the law to have a receiver appointed, provided, however, that, the
-------- -------
appointment of such receiver, trustee or other appointee by virtue of any court
order, statute or regulation shall not impair or in any manner prejudice the
rights of Mortgagee to receive payment of the Rents and Profits pursuant to
other terms and provisions hereof. Any such receiver shall have all of the
usual powers and duties of receivers in similar cases, including, without
limitation, the full power to hold, develop, rent, lease, manage, maintain,
operate and otherwise use or permit the use of the Property upon such terms and
conditions as said receiver may deem to be prudent and reasonable under the
circumstances as more fully set forth in Section 3.3 below. Such receivership
shall, at the option of Mortgagee, continue until full payment of all of the
indebtedness secured hereby or until title to the Property shall have passed by
foreclosure sale under this Mortgage or deed in lieu of foreclosure.
(e) Foreclosure. Immediately commence an action to foreclose this
-----------
Mortgage or to specifically enforce its provisions or any of the indebtedness
secured hereby pursuant to the statutes in such case made and provided and sell
the Property or cause the Property to be sold in accordance with the
requirements and procedures provided by said statutes in a single parcel or in
several parcels at the option of Mortgagee.
(1) In the event foreclosure proceedings are filed by Mortgagee,
all expenses incident to such proceeding, including, but not limited to,
attorneys' fees and costs, shall be paid by Mortgagor and secured by this
Mortgage and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Loan Agreement. The secured indebtedness and all
other obligations secured by this Mortgage, including, without limitation,
interest at the Default Interest Rate, any prepayment charge, fee or premium
required to be paid under the Loan Agreement in order to prepay principal (to
the extent permitted by applicable law),
33
attorneys' fees and any other amounts due and unpaid to Mortgagee under the Loan
Documents, may be bid by Mortgagee in the event of a foreclosure sale hereunder.
In the event of a judicial sale pursuant to a foreclosure decree, it is
understood and agreed that Mortgagee or its assigns may become the purchaser of
the Property or any part thereof.
(2) Mortgagee may, by following the procedures and satisfying the
requirements prescribed by applicable law, foreclose on only a portion of the
Property and, in such event, said foreclosure shall not affect the lien of this
Mortgage on the remaining portion of the Property foreclosed.
(f) Other. Exercise any other right or remedy available hereunder,
-----
under any of the other Loan Documents or at law or in equity.
3.2 Application of Proceeds. To the fullest extent permitted by law, the
-----------------------
proceeds of any sale under this Mortgage shall be applied to the extent funds
are so available to the following items in such order as Mortgagee in its
discretion may determine:
(a) To payment of the costs, expenses and fees of taking possession
of the Property, and of holding, operating, maintaining, using, leasing,
repairing, improving, marketing and selling the same and of otherwise enforcing
Mortgagee's right and remedies hereunder and under the other Loan Documents,
including, but not limited to, receivers' fees, court costs, attorneys',
accountants', appraisers', managers' and other professional fees, title charges
and transfer taxes.
(b) To payment of all sums expended by Mortgagee under the terms of
any of the Loan Documents and not yet repaid, together with interest on such
sums at the Default Interest Rate.
(c) To payment of the secured indebtedness and all other obligations
secured by this Mortgage, including, without limitation, interest at the Default
Interest Rate and, to the extent permitted by applicable law, any prepayment
fee, charge or premium required to be paid under the Loan Agreement in order to
prepay principal, in any order that Mortgagee chooses in its sole discretion.
The remainder, if any, of such funds shall be disbursed to Mortgagor or to the
person or persons legally entitled thereto.
3.3 Right and Authority of Receiver or Mortgagee in the Event of Default;
---------------------------------------------------------------------
Power of Attorney. Upon the occurrence of a default hereunder, which default is
-----------------
not cured within any applicable grace or cure period, and entry upon the
Property pursuant to Section 3.1(b) hereof or appointment of a receiver pursuant
to Section 3.1(b) hereof, and under such terms and conditions as may be prudent
and reasonable under the circumstances in Mortgagee's or the receiver's sole
discretion, all at Mortgagor's expense, Mortgagee or said receiver, or such
other persons or entities as they shall hire, direct or engage, as the case may
be, may do or permit one or more of the following, successively or concurrently:
(a) enter upon and take possession and control of any and
34
all of the Property; (b) take and maintain possession of all documents, books,
records, papers and accounts relating to the Property; (c) exclude Mortgagor and
its agents, servants and employees wholly from the Property; (d) manage and
operate the Property; (e) preserve and maintain the Property; (f) make repairs
and alterations to the Property; (g) complete any construction or repair of the
Improvements, with such changes, additions or modifications of the plans and
specifications or intended disposition and use of the Improvements as Mortgagee
may in its sole discretion deem appropriate or desirable to place the Property
in such condition as will, in Mortgagee's sole discretion, make it or any part
thereof readily marketable or rentable; (h) conduct a marketing or leasing
program with respect to the Property, or employ a marketing or leasing agent or
agents to do so, directed to the leasing or sale of the Property under such
terms and conditions as Mortgagee may in its sole discretion deem appropriate or
desirable; (i) employ such contractors, subcontractors, materialmen, architects,
engineers, consultants, managers, brokers, marketing agents, or other employees,
agents, independent contractors or professionals, as Mortgagee may in its sole
discretion deem appropriate or desirable to implement and effectuate the rights
and powers herein granted; (j) execute and deliver, in the name of Mortgagee as
attorney-in-fact and agent of Mortgagor or in its own name as Mortgagee, such
documents and instruments as are necessary or appropriate to consummate
authorized transactions; (k) enter into such leases, whether of real or personal
property, or tenancy agreements, under such terms and conditions as Mortgagee
may in its sole discretion deem appropriate or desirable; (l) collect and
receive the Rents and Profits from the Property; (m) eject tenants or repossess
personal property, as provided by law, for breaches of the conditions of their
leases or other agreements; (n) xxx for unpaid Rents and Profits, payments,
income or proceeds in the name of Mortgagor or Mortgagee; (o) maintain actions
in forcible entry and detainer, ejectment for possession and actions in distress
for rent; (p) compromise or give acquittance for Rents and Profits, payments,
income or proceeds that may become due; (q) delegate or assign any and all
rights and powers given to Mortgagee by this Mortgage; and (r) do any acts which
Mortgagee in its sole discretion deems appropriate or desirable to protect the
security hereof and use such measures, legal or equitable, as Mortgagee may in
its sole discretion deem appropriate or desirable to implement and effectuate
the provisions of this Mortgage. This Mortgage shall constitute a direction to
and full authority to any lessee, or other third party who has heretofore dealt
or contracted or may hereafter deal or contract with Mortgagor or Mortgagee, at
the request of Mortgagee, to pay all amounts owing under any lease, contract,
concession, license or other agreement to Mortgagee without proof of the default
relied upon. Any such lessee or third party is hereby irrevocably authorized to
rely upon and comply with (and shall be fully protected by Mortgagor in so
doing) any request, notice or demand by Mortgagee for the payment to Mortgagee
of any Rents and Profits or other sums which may be or thereafter become due
under its lease, contract, concession, license or other agreement, or for the
performance of any undertakings under any such lease, contract, concession,
license or other agreement, and shall have no right or duty to inquire whether
any default under this Mortgage or under any of the other Loan Documents has
actually occurred or is then existing. Mortgagor hereby constitutes and appoints
Mortgagee, its assignees, successors, transferees and nominees, as Mortgagor's
true and lawful attorney-in-fact and agent, with full power of substitution in
the Property, in Mortgagor's name, place and stead, to do or permit any one or
more of the foregoing described rights, remedies, powers and authorities,
successively or concurrently, and said power of attorney shall be deemed a power
coupled with an interest and irrevocable so long as any indebtedness secured
hereby is outstanding. Any money
35
advanced by Mortgagee in connection with any action taken under this Section
3.3, together with interest thereon at the Default Interest Rate from the date
of making such advancement by Mortgagee until actually paid by Mortgagor, shall
be a demand obligation owing by Mortgagor to Mortgagee and shall be secured by
this Mortgage and by every other instrument securing the secured indebtedness.
3.4 Occupancy After Foreclosure. In the event there is a foreclosure sale
---------------------------
hereunder and at the time of such sale, Mortgagor or Mortgagor's
representatives, successors or assigns, or any other persons claiming any
interest in the Property by, through or under Mortgagor (except tenants of space
in the Improvements subject to leases entered into prior to the date hereof),
are occupying or using the Property, or any part thereof, then, to the extent
not prohibited by applicable law, each and all shall, at the option of Mortgagee
or the purchaser at such sale, as the case may be, immediately become the tenant
of the purchaser at such sale, which tenancy shall be a tenancy from day-to-day,
terminable at the will of either landlord or tenant, at a reasonable rental per
day based upon the value of the Property occupied or used, such rental to be due
daily to the purchaser. Further, to the extent permitted by applicable law, in
the event the tenant fails to surrender possession of the Property upon the
termination of such tenancy, the purchaser shall be entitled to institute and
maintain an action for unlawful detainer of the Property in the appropriate
court of the county in which the Real Estate is located.
3.5 Notice to Account Debtors. Mortgagee may, at any time after a default
-------------------------
suit hereunder, which default is not cured within any applicable grace or cure
period, notify the account debtors and obligors of any accounts, chattel paper,
negotiable instruments or other evidences of indebtedness, to Mortgagor included
in the Property to pay Mortgagee directly. Mortgagor shall at any time or from
time to time upon the request of Mortgagee provide to Mortgagee a current list
of all such account debtors and obligors and their addresses.
3.6 Cumulative Remedies. All remedies contained in this Mortgage are
-------------------
cumulative and Mortgagee shall also have all other remedies provided at law and
in equity or in any other Loan Documents. Such remedies may be pursued
separately, successively or concurrently at the sole subjective direction of
Mortgagee and may be exercised in any order and as often as occasion therefor
shall arise. No act of Mortgagee shall be construed as an election to proceed
under any particular provisions of this Mortgage to the exclusion of any other
provision of this Mortgage or as an election of remedies to the exclusion of any
other remedy which may then or thereafter be available to Mortgagee. No delay
or failure by Mortgagee to exercise any right or remedy under this Mortgage
shall be construed to be a waiver of that right or remedy or of any default
hereunder. Mortgagee may exercise any one or more of its rights and remedies at
its option without regard to the adequacy of its security.
3.7 Payment of Expenses. Mortgagor shall pay on demand all of Mortgagee's
-------------------
expenses incurred in any efforts to enforce any terms of this Mortgage, whether
or not any lawsuit is filed and whether or not foreclosure is commenced but not
completed, including, but not limited to, legal fees and disbursements,
foreclosure costs and title charges, together with interest thereon from and
after the date incurred by Mortgagee until actually paid by Mortgagor at the
Default
36
Interest Rate, and the same shall be secured by this Mortgage and by all
of the other Loan Documents securing all or any part of the indebtedness
evidenced by the Loan Agreement.
Article IV
MISCELLANEOUS TERMS AND CONDITIONS
----------------------------------
4.1 Time of Essence. Time is of the essence with respect to all
---------------
provisions of this Mortgage.
4.2 Release of Mortgage. If all of the secured indebtedness be paid and
-------------------
Mortgagee has no further commitments under the Loan Agreement, then and in that
event only, all rights under this Mortgage shall terminate except for those
provisions hereof which by their terms survive, and the Property shall become
wholly clear of the liens, security interests, conveyances and assignments
evidenced hereby, which shall be released by Mortgagee in due form at
Mortgagor's cost. No release of this Mortgage or the lien hereof shall be valid
unless executed by Mortgagee.
4.3 Certain Rights of Mortgagee. Without affecting Mortgagor's liability
---------------------------
for the payment of any of the indebtedness secured hereby, Mortgagee may from
time to time and without notice to Mortgagor: (a) release any person liable for
the payment of the indebtedness secured hereby; (b) extend or modify the terms
of payment of the indebtedness secured hereby; (c) accept additional real or
personal property of any kind as security or alter, substitute or release any
property securing the indebtedness secured hereby; (d) recover any part of the
Property; (e) consent in writing to the making of any subdivision map or plat
thereof; (f) join in granting any easement therein; or (g) join in any extension
agreement of the Mortgage or any agreement subordinating the lien hereof.
4.4 Waiver of Certain Defenses. No action for the enforcement of the lien
--------------------------
hereof or of any provision hereof shall be subject to any defense which would
not be good and available to the party interposing the same in an action at law
upon the Loan Agreement or any of the other Loan Documents.
4.5 Notices. All notices, demands, requests or other communications to be
-------
sent by one party to the other hereunder or required by law shall be in writing
and shall be deemed to have been validly given or served by delivery of the same
in person to the intended addressee, or by depositing the same with Federal
Express or another reputable private courier service for next business day
delivery, or by depositing the same in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, in any event addressed
to the intended addressee at its address set forth on the first page of this
Mortgage or at such other address as may be designated by such party as herein
provided. All notices, demands and requests to be sent to Mortgagee shall be
addressed to the attention of the Manager. All notices, demands and requests
shall be effective upon such personal delivery, or one (1) business day after
being deposited with the private courier service, or two (2) business days after
being deposited in the United States mail as required above. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given as herein required shall be deemed to be receipt of
the notice, demand or
37
request sent. By giving to the other party hereto at least fifteen (15) days'
prior written notice thereof in accordance with the provisions hereof, the
parties hereto shall have the right from time to time to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
4.6 Successors and Assigns. The terms, provisions, indemnities, covenants
----------------------
and conditions hereof shall be binding upon Mortgagor and the successors and
assigns of Mortgagor, including all successors in interest of Mortgagor in and
to all or any part of the Property, and shall inure to the benefit of Mortgagee,
its directors, officers, shareholders, employees and agents and their respective
successors and assigns and shall constitute covenants running with the land.
All references in this Mortgage to Mortgagor or Mortgagee shall be deemed to
include all such parties' successors and assigns, and the term "Mortgagee" as
used herein shall also mean and refer to any lawful holder or owner, including
pledgees and participants, of any of the indebtedness secured hereby. If
Mortgagor consists of more than one person or entity, each will be jointly and
severally liable to perform the obligations of Mortgagor.
4.7 Severability. A determination that any provision of this Mortgage is
------------
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Mortgage to any person or circumstance is illegal or unenforceable shall
not affect the enforceability or validity of such provision as it may apply to
any other persons or circumstances.
4.8 Gender. Within this Mortgage, words of any gender shall be held and
------
construed to include any other gender, and words in the singular shall be held
and construed to include the plural, and vice versa, unless the context
otherwise requires.
4.9 Waiver: Discontinuance of Proceedings. Mortgagee may waive any single
-------------------------------------
default by Mortgagor hereunder without waiving any other prior or subsequent
default. Mortgagee may remedy any default by Mortgagor hereunder without
waiving the default remedied. Neither the failure by Mortgagee to exercise, nor
the delay by Mortgagee in exercising, any right, power or remedy upon any
default by Mortgagor hereunder shall be construed as a waiver of such default or
as a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Mortgagee of any right, power or remedy
hereunder shall exhaust the same or shall preclude any other or further exercise
thereof, and every such right, power or remedy hereunder may be exercised at any
time and from time to time. No modification or waiver of any provision hereof
nor consent to any departure by Mortgagor therefrom shall in any event be
effective unless the same shall be in writing and signed by Mortgagee, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose given. No notice to nor demand on Mortgagor in any case
shall of itself entitle Mortgagor to any other or further notice or demand in
similar or other circumstances. Acceptance by Mortgagee of any payment in an
amount less than the amount then due on any of the secured indebtedness shall be
deemed an acceptance on account only and shall not in any way affect the
existence of a default hereunder. In case Mortgagee shall have proceeded to
invoke any right, remedy or recourse permitted hereunder or under the other Loan
Documents and shall thereafter elect to discontinue or abandon the same for any
reason, Mortgagee shall have the unqualified right to do so and, in such an
event,
38
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the indebtedness secured hereby, the Loan Documents, the Property and
otherwise, and the rights, remedies, recourses and powers of Mortgagee shall
continue as if the same had never been invoked.
4.10 Section Headings. The headings of the sections and paragraphs of
----------------
this Mortgage are for convenience of reference only, are not to be considered a
part hereof and shall not limit or otherwise affect any of the terms hereof.
4.11 Governing Law. This Mortgage will be governed by and construed in
-------------
accordance with the laws of the State of Florida.
4.12 Counting of Days. The term "days" when used herein shall mean
----------------
calendar days. If any time period ends on a Saturday, Sunday or holiday
officially recognized by the state within which the Real Estate is located, the
period shall be deemed to end on the next succeeding business day. The term
"business day" when used herein shall mean a weekday, Monday through Friday,
except a legal holiday or a day on which banking institutions in Florida are
authorized by law to be closed.
4.13 Relationship of the Parties. The relationship between Mortgagor and
---------------------------
Mortgagee is that of a borrower and a lender only and neither of those parties
is, nor shall it hold itself out to be, the agent, employee, joint venturer or
partner of the other party.
4.14 Application of the Proceeds of the Loan. To the extent that proceeds
---------------------------------------
of the loans evidenced by the Loan Agreement are used to pay indebtedness
secured by any outstanding lien, security interest, charge or prior encumbrance
against the Property, such proceeds have been advanced by Mortgagee at
Mortgagor's request and Mortgagee shall be subrogated to any and all rights,
security interests and liens owned by any owner or holder of such outstanding
liens, security interests, charges or encumbrances, irrespective of whether said
liens, security interests, charges or encumbrances are released.
4.15 Unsecured Portion of Indebtedness. If any part of the secured
---------------------------------
indebtedness cannot be lawfully secured by this Mortgage or if any part of the
Property cannot be lawfully subject to the lien and security interest hereof to
the full extent of such indebtedness, then all payments made shall be applied on
said indebtedness first in discharge of that portion thereof which is unsecured
by this Mortgage.
4.16 Cross Default. A default hereunder which has not been cured within
-------------
any applicable grace or cure period shall be a default under each of the other
Loan Documents.
4.17 Interest After Sale. In the event the Property or any part thereof
-------------------
shall be sold upon foreclosure as provided hereunder, to the extent permitted by
law, the sum for which the same shall have been sold shall, for purposes of
redemption (pursuant to the laws of the state in which the Property is located),
bear interest at the Default Interest Rate.
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4.18 Inconsistency with Other Loan Documents. In the event of any
---------------------------------------
inconsistency between the provisions hereof and the provisions in any of the
other Loan Documents, it is intended that the provisions selected by Mortgagee
in its sole subjective discretion shall be controlling.
4.19 Construction of this Document. This document may be construed as a
-----------------------------
mortgage, security deed, deed of trust, chattel mortgage, conveyance,
assignment, security agreement, pledge, financing statement, hypothecation or
contract, or any one or more of the foregoing, in order to fully effectuate the
liens and security interests created hereby and the purposes and agreements
herein set forth.
4.20 No Merger. It is the desire and intention of the parties hereto that
---------
this Mortgage and the lien hereof do not merge in fee simple title to the
Property. It is hereby understood and agreed that should Mortgagee acquire any
additional or other interests in or to the Property or the ownership thereof,
then, unless a contrary intent is manifested by Mortgagee as evidenced by an
appropriate document duly recorded, this Mortgage and the lien hereof shall not
merge in such other or additional interests in or to the Property, toward the
end that this Mortgage may be foreclosed as if owned by a stranger to said other
or additional interests.
4.21 Rights With Respect to Junior Encumbrances. Any person or entity
------------------------------------------
purporting to have or to take a junior mortgage or other lien upon the Property
or any interest therein shall be subject to the rights of Mortgagee to amend,
modify, increase, vary, alter or supplement this Mortgage, the Loan Agreement or
any of the other Loan Documents and to extend the maturity date of the
indebtedness secured hereby and to increase the amount of the indebtedness
secured hereby and to waive or forebear the exercise of any of its rights and
remedies hereunder or under any of the other Loan Documents and to release any
collateral or security for the indebtedness secured hereby, in each and every
case without obtaining the consent of the holder of such junior lien and without
the lien or security interest of this Mortgage losing its priority over the
rights of any such junior lien.
4.22 Mortgagee May File Proofs of Claim. In the case of any receivership,
----------------------------------
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor or the principals in Mortgagor, or their
respective creditors or property, 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 the claims of Mortgagee allowed in such
proceedings for the entire secured indebtedness at the date of the institution
of such proceedings and for any additional amount which may become due and
payable by Mortgagor hereunder after such date.
4.23 Fixture Filing. This Mortgage shall be effective from the date of
--------------
its recording as a financing statement filed as a fixture filing with respect to
all goods constituting part of the Property which are or are to become fixtures.
4.24 After-Acquired Property. All property acquired by Mortgagor after
-----------------------
the date of this Mortgage which by the terms of this Mortgage shall be subject
to the lien and the security interest created hereby, shall immediately upon the
acquisition thereof by Mortgagor and without
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further mortgage, conveyance or assignment become subject to the lien and
security interest created by this Mortgage. Nevertheless, Mortgagor shall
execute, acknowledge, deliver and record or file, as appropriate, all and every
such further mortgages, security agreements, financing statements, assignments
and assurances, as Mortgagee shall require for accomplishing the purposes of
this Mortgage.
4.25 No Representation. By accepting delivery of any item required to be
-----------------
observed, performed or fulfilled or to be given to Mortgagee pursuant to the
Loan Documents, including, but not limited to, any officer's certificates
balance sheet, statement of profit and loss or other financial statement,
survey, appraisal or insurance policy, Mortgagee shall not be deemed to have
warranted, consented to, or affirmed the sufficiency, legality, effectiveness or
legal effect of the same, or of any term, provision or condition thereof, and
such acceptance of delivery thereof shall not be or constitute any warranty,
consent or affirmation with respect thereto by Mortgagee.
4.26 Counterparts. This Mortgage may be executed in any number of
------------
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument, for the same effect as if all parties hereto had signed the
same signature page. Any signature page of this Mortgage may be detached from
any counterpart of this Mortgage without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Mortgage
identical in form hereto but having attached to it one or more additional
signature pages.
4.27 Intentionally Omitted.
---------------------
4.28 Recording and Filing. Mortgagor will cause the Loan Documents and all
--------------------
amendments and supplements thereto and substitutions therefor to be recorded,
filed, re-recorded and re-filed in such manner and in such places as Mortgagee
shall reasonably request, and will pay on demand all such recording, filing, re-
recording and re-filing taxes, fees and other charges. Mortgagor shall reimburse
Mortgagee, or its servicing agent, for the costs incurred in obtaining a tax
service company to verify the status of payment of taxes and assessments on the
Property.
4.29 Entire Agreement and Modification. This Mortgage and the other Loan
---------------------------------
Documents contain the entire agreements between the parties relating to the
subject matter hereof and thereof and all prior agreements relative hereto and
thereto which are not contained herein or therein are terminated. This Mortgage
and the other Loan Documents may not be amended, revised, waived, discharged,
released or terminated orally but only by a written instrument or instruments
executed by the party against which enforcement of the amendment, revision,
waiver, discharge, release or termination is asserted. Any alleged amendment,
revision, waiver, discharge, release or termination which is not so documented
shall not be effective as to any party.
4.30 Maximum Interest. The provisions of this Mortgage and of all
----------------
agreements between Mortgagor and Mortgagee, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of the Loan Agreement or otherwise, shall the amount paid, or
agreed to be paid ("Interest"), to Mortgagee for the use, forbearance or
retention
41
of the money loaned under the Loan Agreement exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever,
performance or fulfillment of any provision hereof or of any agreement between
Mortgagor and Mortgagee shall, at the time performance or fulfillment of such
provision shall be due, exceed the limit for Interest prescribed by law or
otherwise transcend the limit of validity prescribed by applicable law, then
ipso facto the obligation to be performed or fulfilled shall be reduced to such
limit and if, from any circumstance whatsoever, Mortgagee shall ever receive
anything of value deemed Interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive Interest shall be applied to the
reduction of the principal balance owing under the Loan Agreement in the inverse
order of its maturity (whether or not then due) or at the option of Mortgagee be
paid over to Mortgagor, and not to the payment of Interest. All Interest
(including any amounts or payments deemed to be Interest) paid or agreed to be
paid to Mortgagee shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of all principal amounts owing under the Loan Agreement so that
the Interest thereon for such full period will not exceed the maximum amount
permitted by applicable law. This paragraph will control all agreements between
Mortgagor and Mortgagee.
4.31 Intentionally Omitted.
----------------------
4.32 Intentionally Omitted.
---------------------
4.33 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
------------------------------------------------
(a) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
(i) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF FLORIDA OVER ANY SUIT,
ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE NOTE, THIS
MORTGAGE OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION,
SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN FLAGLER COUNTY, FLORIDA, (iii) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND, (iv) TO THE FULLEST EXTENT PERMITTED BY LAW,
AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF MORTGAGEE TO BRING ANY ACTION,
SUIT OR PROCEEDING IN ANY OTHER FORUM). MORTGAGOR FURTHER CONSENTS AND AGREES
TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO
THE MORTGAGOR AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 4.5 HEREOF, AND
CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR
EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
42
(b) MORTGAGEE AND MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THE INDEBTEDNESS SECURED HEREBY OR ANY CONDUCT, ACT OR OMISSION OF
MORTGAGEE OR MORTGAGOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS,
EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH MORTGAGEE
OR MORTGAGOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE.
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day
and year first above written.
WITNESS: MORTGAGOR:
CARDIAC CONTROL SYSTEMS, INC.
/s/ Xxxxxxxx X. Xxxxxx a Delaware corporation
-------------------------
Signature
By: /s/ Xxxx X. Xxxxx
-------------------------------
XXXXXXXX X. XXXXXX Name: Xxxx X. Xxxxx
------------------------- ----------------------------
Print Title: President & CEO
----------------------------
44
STATE OF Florida )
)ss.
COUNTY OF Orange )
The foregoing instrument was acknowledged before me this June 5, 1997
by Xxxx X. Xxxxx, President of Cardiac Control Systems, a Delaware Corporation
on behalf of the corporation. He is [X]personally known to me or has [_]
produced _____________________ as identification and (did/did not take oath).
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Notary Public, State of Florida
[SEAL OF XXXXXX X. XXXXX APPEARS HERE]
----------------------------------------
(print name)
My commission expires:
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