Exhibit 10.29
Record and return to:
Principal Mutual Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
ATTN: Xxxxxxx Xxxxx
MORTGAGE AND SECURITY AGREEMENT
D-751849
THIS MORTGAGE AND SECURITY AGREEMENT made as of February 18, 1998, by
and between EQUITY ONE (LANTANA) INC., a Florida corporation, having a principal
place of business and post office address at c/o Global Realty & Management,
Inc., 000 00xx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, herein called
Mortgagor, and PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, an Iowa corporation,
having its principal place of business and post office address at 000 Xxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000, herein called Mortgagee,
WITNESSETH:
THAT Mortgagor is justly indebted to Mortgagee for money borrowed in
the principal sum of Four Million Four Hundred Thousand and 00/100 Dollars
($4,400,000.00), evidenced by Mortgagor's promissory note in the principal
amount of $1,700,000.00 and Mortgagor's promissory note in the principal amount
of $2,700,000.00, with each of said notes bearing even date herewith, made
payable and delivered to Mortgagee, and in which Mortgagor promises to pay to
Mortgagee the said principal sum or so much thereof as may be advanced from time
to time by Mortgagee, together with interest at the rate, at the times and in
installments as in each secured promissory note provided, until the entire
principal and accrued interest have been paid, but in any event, the principal
balance (if any) remaining due on each of the secured promissory notes shall be
due and payable on the fifteenth day of February, 2011 ("Maturity Date"). Each
secured promissory note is equally and ratably secured by this Mortgage, without
priority of one over the other. The $1,700,000.00 secured promissory note and
the $2,700,000.00 secured promissory note are hereinafter collectively referred
to as the "Note".
NOW, THEREFORE, to secure the payment of the said indebtedness in
accordance with the terms and conditions hereof and of the Note, and all
extensions, modifications and renewals thereof and the performance of the
covenants and agreements contained herein, and also to secure the payment of any
and all other indebtedness, direct or contingent, that may now or hereafter
become owing from Mortgagor to Mortgagee, and in consideration of Ten Dollars in
hand paid, receipt of which is hereby acknowledged, Mortgagor does by these
presents grant, bargain, sell, alien, convey, confirm, remise and release unto
Mortgagee, its successors and assigns forever, that certain real estate and all
of Mortgagor's estate, right, title and interest therein, located in the County
of Palm Beach, State of Florida, more particularly described in Exhibit A
attached hereto and made a part hereof, which real estate, together with the
following described property, rights and interests, is collectively referred to
herein as the "Premises."
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Together with Mortgagor's interest as lessor in and to all leases of the
said Premises, or any part thereof, heretofore or hereafter made and entered
into by Mortgagor during the life of this Mortgage or any extension or renewal
hereof and all rents, income, issues, proceeds and profits accruing and to
accrue from the Premises (which are pledged primarily and on a parity with the
real estate and not secondarily).
Together with all and singular the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights, rights in trade
names, other rights, liberties and privileges thereof or in any way now or
hereafter appertaining, including homestead and any other claim at law or in
equity as well as any after-acquired title, franchise or license and the
reversion and reversions and remainder and remainders thereof.
Together with the right in case of foreclosure hereunder of the
encumbered property for Mortgagee to take and use the name by which the
buildings and all other improvements situated on the Premises are commonly known
and the right to manage and operate the said buildings under any such name and
variants thereof.
Together with all right, title and interest of Mortgagor in any and all
buildings and improvements of every kind and description now or hereafter
erected or placed on the said real estate and all materials intended for
construction, reconstruction, alteration and repairs of such buildings and
improvements now or hereafter erected thereon, all of which materials shall be
deemed to be included within the Premises immediately upon the delivery thereof
to the Premises, and all fixtures now or hereafter owned by Mortgagor and
attached to or contained in and used in connection with the Premises including,
but not limited to, all machinery, motors, elevators, fittings, radiators,
awnings, shades, screens, and all plumbing, heating, lighting, ventilating,
refrigerating, incinerating, air-conditioning and sprinkler equipment and
fixtures and appurtenances thereto; and all items of furniture, furnishings,
equipment and personal property owned by Mortgagor used or useful in the
operation of the Premises; and all renewals or replacements thereof or articles
in substitution therefor, whether or not the same are or shall be attached to
said buildings or improvements in any manner; it being mutually agreed, intended
and declared that all the aforesaid property owned by Mortgagor and placed by it
on the real estate or used in connection with the operation or maintenance of
the Premises shall, so far as permitted by law, be deemed to form a part and
parcel of the real estate and for the purpose of this Mortgage to be real estate
and covered by this Mortgage, and as to any of the property aforesaid which does
not so form a part and parcel of the real estate or does not constitute a
"fixture" (as such term is defined in the Uniform Commercial Code) this Mortgage
is hereby deemed to be, as well, a Security Agreement under the Uniform
Commercial Code for the purpose of creating hereby a security interest in such
property which Mortgagor hereby grants to Mortgagee as Secured Party. Mortgagor
agrees to execute any and all documents, including financing statements which
may be required to perfect the security interest granted hereby.
Together with all right, title and interest of Mortgagor, now or
hereafter acquired, in and to any and all strips and gores of land adjacent to
and used in connection with the Premises and all right, title and interest of
Mortgagor, now owned or hereafter acquired, in, to, over and under the ways,
streets, sidewalks and alleys adjoining the Premises.
Together with all funds now or hereafter held by Mortgagee under any
escrow security agreement or under any of the terms hereof, including but not
limited to funds held under the provisions of paragraph 4 hereof.
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TO HAVE AND TO HOLD the same unto the Mortgagee, its successors and
assigns forever, for the purposes and uses herein set forth.
Mortgagor represents that it is the absolute owner in fee simple of the
Premises described in Exhibit A, which Premises are free and clear of any liens
or encumbrances except as set out in Exhibit B attached hereto, and except for
taxes which are not yet due or delinquent. Mortgagor shall forever warrant and
defend the title to the Premises against all claims and demands of all persons
whomsoever and will on demand execute any additional instrument which may be
required to give Mortgagee a valid first lien on all of the Premises, except as
stated in Exhibit B.
Mortgagor further represents that: (i) the Premises is not subject to any
casualty damage; (ii) except as disclosed in the following reports: Phase I
Environmental Site Assessment Report dated October 1994 and Phase 1 Update -
Asbestos Screening - Phase II Testing Report dated October 1997, both conducted
by Environmental Property Audits Inc. (collectively the "Report"), there is no
Hazardous Material (as hereinafter defined) on the Premises, nor has any
Hazardous Material been discharged from the Premises or penetrated any surface
or subsurface rivers or streams crossing or adjoining the Premises or the
aquifer underlying the Premises; and (iii) Mortgagor has complied and caused the
Premises to comply with all Environmental Laws (as hereinafter defined) relating
to the Premises. "Hazardous Material(s)" as used in this Mortgage means any
hazardous or toxic material, substance, pollutant, contaminant or waste, or
similar terms, defined by or regulated as such under any Environmental Laws, but
shall not include (a) supplies for cleaning and maintenance in commercially
reasonable amounts required for use in the ordinary course of business, provided
such items are incidental to the use of the Premises and are stored and used in
compliance with all Environmental Laws, (b) standard office supplies in
commercially reasonable amounts required for use in the ordinary course of
business, provided such items are incidental to the use of the Premises and are
stored and used in compliance with all Environmental Laws, or (c) retail
tenants' inventory generally held for resale in a typical shopping center,
provided such inventory is stored and sold in compliance with Environmental Laws
(items referred to in clauses (a), (b) and (c) hereinafter sometimes referred to
as "Excluded Hazardous Material"). "Environmental Law(s)" as used in this
Mortgage means any federal, state or local law, whether common law, court or
administrative decision, ordinance, regulation, rule, court order or decree, or
administrative order or any administrative policy or guideline concerning action
levels of a governmental authority relating to the environment, public health,
any Hazardous Material or any Environmental Activity or Condition (as
hereinafter defined) on, under or about the Premises, in effect from time to
time, including, but not limited to (u) the Florida Pollutant Spill Prevention
and Control Act, Chapter 376, Florida Statutes; (v) the Florida Air and Water
Pollution Act, Chapter 403, Florida Statutes; (w) the Federal Water Pollution
Control Act, as amended (33 U.S.C. ss.1251 et seq.); (x) the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ss.6901 et seq.); (y) the
Comprehensive Environmental Response, Compensation and Liability Act, as amended
(42 U.S.C. ss.9601 et seq.); or (z) the Federal Clean Air Act, as amended (42
U.S.C. ss.7401 et seq.). "Environmental Activity or Condition" as used in this
Mortgage means the presence, use, generation, manufacture, production,
processing, storage, release, threatened release, discharge, disposal, treatment
or transportation of any Hazardous Material on, onto, in, under, over or from
the Premises, or the violation of any Environmental Law because of the condition
of, or activity on, the Premises.
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MORTGAGOR COVENANTS AND AGREES AS FOLLOWS:
1. Mortgagor shall
(a) pay each item of indebtedness secured by this Mortgage when
due according to the terms hereof and of the Note;
(b) pay a late charge equal to four percent (4%) of any payment
of principal, interest or premium which is not paid on or
before the due date thereof to cover the expense involved in
handling such late payment;
(c) pay on or before the due date thereof any indebtedness which
may be secured by a lien or charge on the Premises (except
for mechanic's liens, which are prohibited under paragraph
1(f) hereof), and upon request of Mortgagee exhibit
satisfactory evidence of the discharge thereof;
(d) complete within a reasonable time the construction of any
building now or at any time in process of construction upon
the real estate;
(e) make no material alteration to the Premises without the
prior written consent of Mortgagee, except such as are
required by law or ordinance;
(f) remove or demolish no building or other improvement at any
time a part of the Premises, and shall keep the Premises,
including the buildings and improvements, in good condition
and repair, without waste, and free from mechanics' liens or
other liens or claims for liens and encumbrances;
(g) comply, and cause each lessee or other user of the Premises
to comply, with all requirements of law and ordinance, and
all rules and regulations, now or hereafter enacted, by
authorities having jurisdiction of the Premises and the use
thereof, all orders and directions of the National Fire
Protection Association or similar body, and all covenants,
conditions and restrictions of record pertaining to the
Premises, including the buildings and improvements, and the
use thereof;
(h) cause or permit no change to be made in the general nature,
as of the date hereof, of the occupancy of the Premises
without Mortgagee's prior written consent;
(i) initiate or acquiesce in no zoning reclassification or
material change in zoning without Mortgagee's prior written
consent;
(j) make or permit no use of the Premises that could with the
passage of time result in the creation of any right of use,
or any claim of adverse possession or easement on, to or
against any part of the Premises in favor of any person or
the public;
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(k) subject to the provisions of paragraph 5(c) hereof, promptly
repair, restore or rebuild any buildings or improvements now
or hereafter a part of the Premises which may become damaged
or be destroyed by any cause whatsoever, so that upon
completion of the repair, restoration and rebuilding of the
buildings and improvements there will be no liens of any
nature arising out of the construction and the Premises will
be of substantially the same character and will have a
commercial value at least as great as the commercial value
thereof prior to the damage or destruction;
(l) not, directly or indirectly, due to assignment of beneficial
interest under a trust, partnership interest in a
partnership, or otherwise, cause or permit any sale,
transfer or conveyance of the Premises or create, suffer or
permit any encumbrance or lien on the Premises other than
the lien hereof, the leases of the Premises assigned to
Mortgagee and other exceptions expressly referred to herein
(except for mechanic's liens, which are prohibited under
paragraph 1(f) hereof), it being understood and agreed that
the indebtedness evidenced by the Note and its terms are
personal to Mortgagor and in accepting the same Mortgagee
has relied upon what it perceived as the willingness and
ability of Mortgagor to perform its obligations hereunder,
under the Note, and as lessor under leases of the Premises;
Mortgagee may consent to a sale, transfer, conveyance or
encumbrance and expressly waive this provision in writing to
Mortgagor however any such consent and waiver shall not
constitute any consent or waiver of this provision as to any
sale, transfer, conveyance or encumbrance other than that
for which the consent and waiver was expressly granted;
Mortgagee's ability to consent to any sale, transfer,
conveyance or encumbrance and waive this provision implies
no standard of reasonableness in determining whether or not
such consent shall be granted and the same may be based upon
what Mortgagee solely deems to be in its best interest;
without limiting Mortgagee's right to withhold its consent
and waiver entirely, such consent and waiver may be
conditioned upon an increase in the rate of interest under
the Note and the imposition of other terms and conditions
thereunder or hereunder; any sale, transfer, conveyance or
encumbrance made, created or permitted in violation of this
provision shall be null and void and in addition to the
other rights and remedies available to Mortgagee hereunder,
Mortgagee shall have the option of declaring the unpaid
principal balance of the Note, together with all accrued and
unpaid interest, premium, if any and all other sums and
charges evidenced thereby or owing hereunder, immediately
due and payable;
Notwithstanding anything hereinabove to the contrary,
Mortgagee does hereby consent to a one time sale, transfer
or conveyance of the Premises and subsequent assumption of
the obligations of Mortgagor under this Mortgage and the
Note secured hereby, subject to Mortgagee's approval of the
proposed purchaser which approval shall be conditioned upon
but not limited to, the proposed purchaser's
creditworthiness, financial strength and real estate
management expertise and subject to the payment of an
assumption fee in the amount of one percent (1%) of the then
outstanding principal balance of the Note to Mortgagee.
Mortgagor shall pay to Mortgagee a reasonable fee for the
handling of this transaction not to exceed $2,500.00.
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Further notwithstanding the above, Mortgagee does hereby
consent to transfers of the equity interest in Mortgagor
through a public offering of stock, subject to Mortgagee's
review and approval of the documentation in connection with
such offering and provided that in no event shall greater
than 75% of the original interest in Mortgagor be
transferred in the aggregate. Mortgagor shall pay to
Mortgagee the following fees in connection with the proposed
transfers: (i) any transfer(s) that results in a cumulative
transfer of up to 40% of the original stock ownership in
Mortgagor shall be subject to a fee not to exceed $7,500.00;
(ii) any transfer(s) that results in a cumulative transfer
of between 40% and 60% of the original stock ownership in
Mortgagor shall be subject to a fee not to exceed
$15,000.00; and (iii) any transfer(s) that results in a
cumulative transfer of between 60% and 75% of the original
stock ownership in Mortgagor shall be subject to a fee not
to exceed .75% of the outstanding indebtedness.
(m) not cause or permit any Hazardous Material to exist on or
discharge from the Premises, and comply and cause the
Premises to comply with all Environmental Laws and promptly:
(i) pay any claim against Mortgagor or the Premises due to
an Environmental Activity or Condition, (ii) remove any
charge or lien upon the Premises due to an Environmental
Activity or Condition, and (iii) indemnify, defend and hold
Mortgagee harmless from any and all claims, demands, loss or
damage, resulting from any Environmental Activity or
Condition; provided, however, that this indemnity does not
apply to any future Environmental Activity or Condition
resulting solely from any act or omission for which
Mortgagor bears no responsibility and which occurs after
Mortgagor or any person or entity in any way related to
Mortgagor no longer holds title to or has any interest in
the Premises;
(n) not cause or permit any Hazardous Material to exist on or
discharge from any property owned or used by Mortgagor which
would result in any charge or lien upon the Premises;
(o) notify Mortgagee of any Hazardous Material that exists on or
is discharged from the Premises within ten (10) days after
Mortgagor first has knowledge of such existence or
discharge;
(p) if other than a natural person, do all things necessary to
preserve and keep in full force and effect its existence,
franchises, rights and privileges under the laws of the
state of its formation and, if other than its state of
formation, the state where the Premises is located;
(q) do all things necessary to preserve and keep in full force
and effect Mortgagee's title insurance coverage insuring the
lien of this Mortgage as a first and prior lien, subject
only to the exceptions stated in Exhibit B and any other
exceptions after the date of this Mortgage approved in
writing by Mortgagee, including without limitation,
delivering to Mortgagee not less than 30 days prior to the
effective date of any rate adjustment, modification or
extension of the Note or this Mortgage, any new policy or
endorsement which may be required to assure Mortgagee of
such continuing coverage;
(r) not directly or indirectly, commit waste; and
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(s) pay or cause any lessee to pay all utilities on the Premises
prior to becoming delinquent.
2. (a) Mortgagor shall pay or cause to be paid when due and before
any penalty attaches or interest accrues all general taxes,
special taxes, assessments (including assessments for
benefits from public works or improvements whenever begun or
completed), water charges, sewer service charges, CAM
charges, if any, vault or space charges and all other like
charges against or affecting the Premises or against any
property or equipment located on the Premises, or which
might become a lien on the Premises, and shall, within 10
days following Mortgagee's request, furnish to Mortgagee a
duplicate receipt of such payment. If any such tax,
assessment or charge may legally be paid in installments,
Mortgagor may, at its option, pay such tax, assessment or
charge in installments.
(b) To prevent default hereunder Mortgagor shall pay in full,
under protest in the manner provided by law, any tax,
assessment or charge which Mortgagor may desire to contest;
PROVIDED, HOWEVER, that
(i) if contest of any tax, assessment or charge may be
made without the payment thereof, and
(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so
contested and the sale or forfeiture of the Premises
or any part thereof or any interest therein to
satisfy the same,
then Mortgagor may at its option and in its discretion and
upon the giving of written notice to Mortgagee of its
intended action and upon the furnishing to Mortgagee of such
security or bond as Mortgagee may require, contest any such
tax, assessment or charge in good faith and in the manner
provided by law. All costs and expenses incidental to such
contest shall be paid by Mortgagor. In the event of a ruling
or adjudication adverse to Mortgagor, Mortgagor shall
promptly pay such tax, assessment or charge. Mortgagor shall
indemnify and save harmless the Mortgagee and the Premises
from any loss or damage arising from such contest and shall,
if necessary to prevent sale, forfeiture or any other loss
or damage to the Premises or to the Mortgagee, pay such tax,
assessment or charge or take whatever action is necessary to
prevent any sale, forfeiture or loss.
3. (a) Mortgagor shall at all times keep in force (i) property
insurance insuring all buildings and improvements which now
are or hereafter become a part of the Premises for perils
covered by an all-risk insurance policy containing both
replacement cost and agreed amount endorsements or options;
(ii) commercial general liability insurance naming Mortgagee
as additional insured protecting Mortgagor and Mortgagee
against liability for bodily injury or property damage
occurring in, on or adjacent to the Premises in commercially
reasonable amounts; (iii) boiler and machinery insurance if
the property has a boiler or is an office building; (iv)
rental value insurance for the perils specified herein for
one hundred percent (100%) of the rents (including
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operating expenses, real estate taxes, assessments and
insurance costs which are lessee's liability) for a period
of twelve (12) months; and (v) insurance against all other
hazards as may be reasonably required by Mortgagee,
including, without limitation, insurance against loss or
damage by flood and earthquake.
(b) All insurance shall be in form, content and amounts approved
by Mortgagee and written by an insurance company or
companies rated A, class size X or better in the most
current issue of Best's Insurance Reports and which is
licensed to do business in the state in which the Premises
are located and domiciled in the United States or a
governmental agency or instrumentality approved by
Mortgagee. The policies for such insurance shall have
attached thereto standard mortgagee clauses in favor of and
permitting Mortgagee to collect any and all proceeds payable
thereunder and shall include a 30 day (except for nonpayment
of premium, in which case, a 10 day) notice of cancellation
clause in favor of Mortgagee. All policies or certificates
of insurance shall be delivered to and held by Mortgagee as
further security for the payment of the Note and any other
obligations arising under the Loan Documents, with evidence
of renewal coverage delivered to Mortgagee at least 30 days
before the expiration date of any policy. Not more
frequently than once every three years, if Mortgagee has a
reasonable belief that the replacement cost value is not
correct, it shall notify Mortgagor and Mortgagor, at its
expense, will furnish Mortgagee with an appraisal of the
full insurable replacement cost value of the Premises, made
by fire insurance appraisers satisfactory to Mortgagee and
fire insurance companies generally. Said appraisals shall
coincide with the appraisals, if any, used to determine
Mortgagee's appraised value of the Premises as required
pursuant to the Note secured hereby, unless required more
frequently by the insurer of the Premises. Mortgagor shall
not carry separate insurance, concurrent in kind or form and
contributing in the event of loss, with any insurance
required herein.
4. (a) Mortgagor shall deposit with and pay to Mortgagee, on each
payment date specified in the Note, a sum equivalent to: (1)
the taxes and assessments assessed or levied against and
next due on the Premises divided by the number of payments
that will become due and payable under the Note before the
date when such taxes and assessments will become due and
payable, PLUS UPON REQUEST OF MORTGAGEE (2) the premiums
that will next become due and payable for insurance required
by this Mortgage to be furnished by Mortgagor divided by the
number of payments that will become due and payable under
the Note before the date when such premiums will become due
and payable. Mortgagee shall use such deposits to pay the
taxes, assessments and premiums when the same become due.
Mortgagee shall not be liable for interest on such deposits.
Mortgagor shall procure and deliver to Mortgagee, in
advance, statements for such charges. If the total payments
made by Mortgagor under this paragraph plus interest, if
any, accrued thereon exceed the amount of payments actually
made by Mortgagee for taxes, assessments and insurance
premiums, such excess shall be credited by Mortgagee on
subsequent deposits to be made by Mortgagor. If, however,
the deposits are insufficient to pay the taxes, assessments
and insurance premiums when the same shall be due and
payable, Mortgagor will pay to Mortgagee any amount
necessary to make up the deficiency, five (5) business days
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before the date when payment of such taxes, assessments and
insurance premiums shall be due. If at any time Mortgagor
shall tender to Mortgagee, in accordance with the provisions
of the Note secured by this Mortgage, full payment of the
entire indebtedness represented thereby, Mortgagee shall, in
computing the amount of such indebtedness, credit to the
account of Mortgagor any balance remaining in the funds
accumulated and held by Mortgagee under the provisions of
this paragraph. If there is an Event of Default under any of
the provisions of this Mortgage resulting in a public sale
of the Premises, or if Mortgagee otherwise acquires the
Premises after an Event of Default, Mortgagee shall apply,
at the time of commencement of such proceedings, or at the
time the Premises is otherwise acquired, the balance then
remaining in the funds accumulated under this paragraph as a
credit on the interest accrued and unpaid and the balance to
the principal then remaining unpaid under the Note. The
provisions of this paragraph shall not affect the
enforceability of the covenants relating to taxes,
assessments and insurance premiums provided for in this
Mortgage except to the extent that obligations for the same
have been actually met by compliance with this paragraph.
(b) Any funds held under this paragraph shall not constitute any
deposit or account of the Mortgagor or moneys to which the
Mortgagor is entitled upon demand, or upon the mere passage
of time, or sums to which Mortgagor is entitled to any
interest or crediting of interest by virtue of Mortgagee's
mere possession of such deposits. Mortgagee shall not be
required to segregate such deposits or hold such deposits in
any separate account for the benefit of Mortgagor. Mortgagee
may hold such deposits in its general account or any other
account and may commingle such deposits with any other
moneys of Mortgagee or moneys which Mortgagee is holding on
behalf of any other person or entity. Mortgagor hereby
consents to the investment of such deposits by Mortgagee as
outlined herein.
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5. In the event of any damage to or destruction of the buildings or
improvements which are a part of the Premises:
(a) Mortgagor will immediately notify Mortgagee thereof in the
manner provided in this Mortgage for the giving of notices.
Mortgagee may in its discretion (and it is hereby authorized
to) either settle and adjust any claim under such insurance
policies, or allow Mortgagor to agree with the insurance
company or companies on the amount to be paid upon the loss.
In either case, the proceeds shall be paid to Mortgagee and
Mortgagee is authorized to collect and to give receipts
therefor. In the event Mortgagee elects to either settle or
adjust any claim under such insurance policies, and provided
there is no Event of Default or event which with the passage
of time or notice or both would constitute an Event of
Default which has occurred and is continuing, Mortgagor
shall have the right to participate in said settlement or
adjustment; provided, however, that any settlement or
adjustment shall be subject to the written approval of
Mortgagee.
(b) Such proceeds, after deducting therefrom any expenses
incurred in the collection thereof, including reasonable
attorneys' fees and costs, shall be applied at the option of
Mortgagee either to the cost of rebuilding and restoring the
buildings and improvements or in reduction of the
indebtedness secured hereby whether or not then due and
payable, provided however, that if no Event of Default has
occurred and Mortgagee has not otherwise previously
accelerated the whole or any part of the indebtedness
secured hereby, such reduction shall be without Make Whole
Premium. Any excess proceeds remaining after said
indebtedness is fully paid shall be promptly remitted to
Mortgagor.
(c) Regardless of the cause of the damage or destruction or the
availability or sufficiency of insurance proceeds until all
indebtedness secured hereby shall be fully paid, Mortgagor
shall be obligated to repair, restore and rebuild any
buildings or improvements so damaged or destroyed, provided
however, that if any insurance proceeds have been paid to
Mortgagee under any insurance policies maintained by
Mortgagor under the provisions of Paragraph 3 hereof,
Mortgagor shall be so obligated only if Mortgagee elects to
apply such proceeds to the cost of rebuilding and
restoration. Repair and restoration of the buildings and
improvements shall be commenced promptly after the
occurrence of the loss and shall be prosecuted to completion
diligently, and the buildings and improvements shall be so
restored and rebuilt as to be of at least equal value and
substantially the same character as prior to such damage and
destruction. In the event the estimated costs of rebuilding
and restoration exceed 25% of the indebtedness then
remaining unpaid as secured hereby, the drawings and
specifications pertaining to such rebuilding and restoration
shall be subject to the prior written approval of Mortgagee.
Notwithstanding anything to the contrary contained in this
Mortgage, such insurance proceeds shall be held by Mortgagee
without any allowance of interest and shall be made
available to
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reimburse Mortgagor for the cost of the rebuilding or
restoration of buildings or improvements on the Premises,
subject to paragraph 5(d) hereinbelow and the following
conditions:
(i) there has been no Event of Default or event which
with the passage of time or notice or both would
become an Event of Default under the Loan Documents;
(ii) the annual net operating income from all approved
executed leases in effect on the Premises with no
annual defaults shall equal or exceed 1.20 times the
annual debt service on the Note with approved leases
that have at least 2 years remaining prior to the
expiration of their term;
(iii) Xxxx-Xxxxx Stores, Inc. and Mortgagor confirm in
writing to the Mortgagee that (x) the tenant intends
to reoccupy the Premises after the restoration is
completed, (y) the lease is in full force and effect
and (z) no defaults have occurred and are continuing
thereunder;
(iv) Mortgagee approves the plans and specifications of
such work before such work is commenced;
(v) Mortgagor provides suitable completion or performance
bonds and builder's all risk insurance;
(vi) no insurer asserts any defense against Mortgagor or a
tenant under a lease covering all or any portion of
the Premises pursuant to any insurance policies
covering the improvements on the Premises;
(vii) there shall be sufficient funds on deposit with
Mortgagee at all times to complete the repair and
restoration, as certified from time to time by an
inspecting architect approved by Mortgagee;
(viii) said rebuilding or restoration shall be, in
Mortgagee's opinion, economically feasible;
(ix) Mortgagor is obligated to rebuild and restore the
damaged or destroyed buildings or improvements under
the terms of the leases approved by Mortgagee in
effect on the Premises;
(x) Mortgagor pays to Mortgagee a non-refundable
processing fee equal to the greater of $5,000.00 or
.5% of the amount of such proceeds within sixty (60)
days of the occurrence of any such damage or
destruction and before Mortgagee disburses any
proceeds;
(xi) the installment payments and any other sums that
become due and all obligations under the Loan
Documents shall be fully recourse obligations to
Mortgagor commencing upon Mortgagee's receipt of said
non-refundable processing fee and continuing until
such time
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as the rebuilding or restoration is completed in
accordance with the provisions contained herein; and
(xii) such other conditions to such disbursements, in
Mortgagee's discretion as would be customarily
required by a construction lender doing business in
the area.
If the foregoing conditions are not met, Mortgagee at its
option may require Mortgagor to use any proceeds to either
immediately rebuild any portion or all of the improvements
or apply the insurance proceeds to the reduction of the
indebtedness secured hereby, whether due or not, without the
imposition of a premium. Mortgagor agrees and acknowledges
that all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code in any bankruptcy proceeding of Mortgagor.
(d) In the event that Mortgagor is to be reimbursed out of the
insurance proceeds, such proceeds shall be made available
from time to time upon the furnishing to Mortgagee of
satisfactory evidences of the estimated cost of completion
thereof and such architect's certificates, waivers of lien,
contractor's sworn statements, and other evidence of cost
and of payment and of the continued priority of the lien
hereof over any potential liens of mechanics and materialmen
as Mortgagee may require and approve. No payment made by
Mortgagee prior to the final completion of the work shall,
together with all payments theretofore made, exceed 90% of
the cost of the work performed to the time of payment, and
at all times the undisbursed balance of said proceeds shall
be at least sufficient to pay for the cost of completion of
the work free and clear of liens. Any proceeds remaining
after payment of the cost of rebuilding and restoration
shall, at the option of Mortgagee, either be applied in
reduction of the indebtedness secured hereby, provided,
however, that if no Event of Default has occurred and
Mortgagee has not otherwise previously accelerated the whole
or any part of the indebtedness secured hereby, such
reduction shall be without Make Whole Premium, or paid to
Mortgagor.
(e) Should such damage or destruction occur after foreclosure or
sale proceedings have been instituted, the proceeds of any
such insurance policy or policies, if not applied in
rebuilding or restoration of the buildings or improvements,
shall be used to pay the indebtedness, then due and owing in
the event of a non-judicial sale or the amount due in
accordance with any decree of foreclosure or deficiency
judgment that may be entered in connection with such
proceedings, and the balance, if any, shall be paid to the
owner of the equity of redemption if he shall then be
entitled to the same, or otherwise as any court having
jurisdiction may direct. Following any foreclosure sale, or
other sale of the Premises by Mortgagee pursuant to the
terms hereof, Mortgagee is authorized without the consent of
Mortgagor to assign any and all insurance policies to the
purchaser at the sale and to take such other steps as
Mortgagee may deem advisable to cause the interests of such
purchaser to be protected by any of such insurance policies.
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6. Mortgagor hereby assigns, transfers and sets over to Mortgagee the
entire proceeds of any award or claim for damage to any of the
Premises taken or damaged under the power of eminent domain or by
condemnation. In the event of the commencement of any eminent
domain or condemnation proceeding affecting the Premises:
(a) Mortgagor shall notify Mortgagee thereof in the manner
provided in this Mortgage for the giving of notices.
Mortgagee may participate in such proceeding, and Mortgagor
shall deliver to Mortgagee all documents requested by it to
permit such participation.
(b) Mortgagee may elect to apply the proceeds of the award upon
or in reduction of the indebtedness secured hereby whether
or not then due and payable, provided however, that if no
Event of Default has occurred and Mortgagee has not
otherwise previously accelerated the whole or any part of
the indebtedness secured hereby, such reduction shall be
without Make Whole Premium, or require Mortgagor to restore
or rebuild, in which event the proceeds shall be held by
Mortgagee and used to reimburse Mortgagor for the cost of
restoring and rebuilding all buildings and improvements in
accordance with plans and specifications to be submitted to
and approved by Mortgagee.
Notwithstanding anything to the contrary contained in this
Mortgage, such condemnation proceeds shall be held by
Mortgagee without any allowance of interest and shall be
made available to reimburse Mortgagor for the cost of the
rebuilding or restoration of buildings or improvements on
the Premises, subject to paragraph 6(c) hereinbelow and the
following conditions:
(i) there has been no Event of Default or event which
with the passage of time or notice or both would
become an Event of Default under the Loan Documents;
(ii) the annual net operating income from all approved
executed leases in effect on the Premises with no
annual defaults shall equal or exceed 1.20 times the
annual debt service on the Note with approved leases
that have at least 2 years remaining prior to the
expiration of their term;
(iii) Xxxx-Xxxxx Stores, Inc. and Mortgagor confirm in
writing to the Mortgagee that (x) the tenant intends
to reoccupy the Premises after the restoration is
completed, (y) the lease is in full force and effect
and (z) no defaults have occurred and are continuing
thereunder;
(iv) Mortgagee approves the plans and specifications of
such work before such work is commenced;
(v) Mortgagor provides suitable completion or performance
bonds and builder's all risk insurance;
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(vi) there shall be sufficient funds on deposit with
Mortgagee at all times to complete the repair and
restoration, as certified from time to time by an
inspecting architect approved by Mortgagee;
(vii) said rebuilding or restoration shall be, in
Mortgagee's opinion, economically feasible;
(viii) Mortgagor is obligated to rebuild and restore the
damaged or destroyed buildings or improvements under
the terms of the leases approved by Mortgagee in
effect on the Premises;
(ix) Mortgagor pays to Mortgagee a non-refundable
processing fee equal to the greater of $5,000.00 or
.5% of the amount of such proceeds within sixty (60)
days of the occurrence of any such damage or
destruction and before Mortgagee disburses any
proceeds;
(x) the installment payments and any other sums that
become due and all obligations under the Loan
Documents shall be fully recourse obligations to
Mortgagor commencing upon Mortgagee's receipt of said
non-refundable processing fee and continuing until
such time as the rebuilding or restoration is
completed in accordance with the provisions contained
herein; and
(xi) such other conditions to such disbursements, in
Mortgagee's discretion as would be customarily
required by a construction lender doing business in
the area.
If the foregoing conditions are not met, Mortgagee at its
option may require Mortgagor to use any proceeds to either
immediately rebuild any portion or all of the improvements
or apply the condemnation proceeds to the reduction of the
indebtedness secured hereby, whether due or not, without the
imposition of a premium. Mortgagor agrees and acknowledges
that all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code in any bankruptcy proceeding of Mortgagor.
(c) In the event Mortgagee elects to reimburse Mortgagor for the
costs of restoring and rebuilding the Premises, then the
proceeds of the award shall be paid out in the same manner
as provided in this Mortgage for the payment of insurance
proceeds in reimbursement of the costs of rebuilding and
restoration. If the amount of such award is insufficient to
cover the cost of restoring and rebuilding, Mortgagor shall
pay such cost in excess of the award before being entitled
to reimbursement out of the award. Any proceeds remaining
after payment of cost of restoring and rebuilding shall, at
the option of Mortgagee, either be applied on account of the
indebtedness secured hereby, provided, however, that if no
Event of Default has occurred and Mortgagee has not
otherwise previously accelerated the whole or any part of
the indebtedness secured hereby, such reduction shall be
without Make Whole Premium, or be paid to Mortgagor.
-15-
7. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction of Mortgagor or of
the Premises or of the transaction evidenced by the Note and this
Mortgage, any tax or fee is due or becomes due in respect of the
issuance of the Note hereby secured or the making, recording and
registration of this Mortgage, except for Mortgagee's income tax,
Mortgagor covenants and agrees to pay such tax or fee in the
manner required by such law, and to hold harmless and indemnify
Mortgagee, its successors and assigns, against any liability
incurred by reason of the imposition of any such tax or fee.
8. In the event of the enactment after the date hereof of any
applicable law deducting from the value of land for the purpose of
taxation any lien thereon, or imposing upon Mortgagee the payment
of the whole or any part of the taxes or assessments or charges or
liens herein required to be paid by Mortgagor, or changing in any
way the laws relating to the taxation of mortgages or debts
secured by mortgages or Mortgagee's interest in the Premises, or
the manner of collection of taxes, so as to affect this Mortgage
or the debt secured hereby or the holder thereof, except for
Mortgagee's income tax, then and in any such event Mortgagor
shall, upon demand by Mortgagee, pay such taxes or assessments 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 be construed as imposing a rate of interest beyond
the maximum permitted by law, then and in such event Mortgagee may
elect to declare all of the indebtedness secured hereby to be and
become due and payable 60 days from the giving of written notice
of such election to Mortgagor, provided, however, that if no Event
of Default has occurred and Mortgagee has not otherwise previously
accelerated the whole or any part of the indebtedness secured
hereby, such payment shall be without Make Whole Premium.
9. (a) Upon the occurrence of any Event of Default under this
Mortgage, Mortgagee may, but need not, make any payment or
perform any act herein required of Mortgagor, in any form
and manner deemed expedient and may, but need not, make full
or partial payments of principal or interest on prior
encumbrances, if any, and purchase, discharge, compromise or
settle any tax lien or other prior lien or title or claim
thereof, or redeem from any tax sale or forfeiture affecting
said Premises, or contest any tax or assessment. All moneys
paid for any of the purposes herein authorized and all
reasonable expenses paid or incurred in connection
therewith, including reasonable attorneys' fees and costs
and reasonable attorneys' fees and costs on appeal, and any
other money advanced by Mortgagee to protect the Premises
and the lien hereof, shall be so much additional
indebtedness secured hereby and shall become immediately due
and payable without notice and with interest thereon at the
Default Rate (as hereinafter defined) from the date of
expenditure or advance until paid.
(b) In making any payment hereby authorized relating to taxes or
assessments or for the purchase, discharge, compromise or
settlement of any prior lien, Mortgagee may make such
payment according to any xxxx, statement or estimate secured
from the appropriate public office without inquiry into the
accuracy thereof or into the validity of any tax,
assessment, sale, forfeiture, tax
-16-
lien or title or claim thereof or without inquiry as to the
validity or amount of any claim for lien which may be
asserted.
10. If one or more of the following events (herein called "Events of
Default") shall have occurred:
(a) default shall be made in the payment of any principal,
interest or premium, utilities, taxes or assessments
referred to in this Mortgage or insurance premiums for the
insurance required pursuant to this Mortgage when due under
the Note or this Mortgage, and such default shall have
continued for 10 days; or
(b) Mortgagor or any general partner of Mortgagor shall be
dissolved, or a decree or order for relief shall be entered
by a court having jurisdiction in respect of Mortgagor or
any general partner of Mortgagor in a voluntary or
involuntary case under the Federal Bankruptcy Code as now or
hereafter constituted, or Mortgagor or any general partner
of Mortgagor shall file a voluntary petition in bankruptcy
or for reorganization or an arrangement or any composition,
readjustment, liquidation, dissolution or similar relief
pursuant to any similar present or future state or federal
bankruptcy law, or shall be adjudicated a bankrupt or become
insolvent, or shall commit any act of bankruptcy as defined
in such law, or shall take any action in furtherance of any
of the foregoing; or
(c) a petition or answer shall be filed proposing the
adjudication of Mortgagor or any general partner of
Mortgagor as a bankrupt or its reorganization or
arrangement, or any composition, readjustment, liquidation,
dissolution or similar relief with respect to it pursuant to
any present or future federal or state bankruptcy or similar
law, and Mortgagor or any general partner of Mortgagor shall
consent to the filing thereof, or such petition or answer
shall not be discharged within 60 days after the filing
thereof; or
(d) by the order of a court of competent jurisdiction, a
receiver, trustee or liquidator of the Premises or any part
thereof or of Mortgagor or any general partner of Mortgagor
or of substantially all of its assets shall be appointed and
shall not be discharged or dismissed within 60 days after
such appointment, or if Mortgagor or any general partner of
Mortgagor shall consent to or acquiesce in such appointment;
or
(e) with respect to the matters not described in the other
subparagraphs of this paragraph 10, default shall be made in
the due observance or performance of any covenant, condition
or agreement of the Mortgagor contained in this Mortgage,
the Note and Assignment of Leases and Rents of even date
herewith from Mortgagor to Mortgagee or in any other
instrument or agreement by which the Note is secured (the
"Loan Documents"), and such default shall have continued for
30 days after notice specifying such default is given by
Mortgagee to Mortgagor; or
-17-
(f) any representation or warranty made by Mortgagor in the Loan
Documents shall prove to be untrue or inaccurate in any
material respect; or
(g) the failure of Mortgagor to give notice to Mortgagee in the
manner provided in this Mortgage for the giving of notices
within 30 days after the death of any natural person who is
personally liable for the payment of the indebtedness
secured hereby or any part thereof, whether such person is
the Mortgagor or any indemnitor or guarantor and whether or
not such person has executed the Note or this Mortgage; or
(h) the death of any natural person who is personally liable for
the payment of the indebtedness secured hereby or any part
thereof, whether such person is the Mortgagor or any
indemnitor or guarantor and whether or not such person has
executed the Note or this Mortgage or the death of any
general partner of Mortgagor; or
(i) the failure of the Guarantor, Equity One, Inc. (under that
certain Guaranty of even date herewith) to maintain a
minimum net worth of Ten Million and 00/100 Dollars
($10,000,000.00), as determined by Mortgagee;
then, in each and every such case, the whole of said principal sum
hereby secured shall, at the option of the Mortgagee and without
further notice to Mortgagor, become immediately due and payable
together with accrued interest thereon and a Make Whole Premium
calculated in accordance with the provisions hereof, and whether
or not Mortgagee has exercised said option, interest shall accrue
on the entire principal balance and any interest or premium then
due, at the Default Rate until fully paid or if Mortgagee has not
exercised said option, for the duration of any Event of Default.
If any default under "(e)" above shall be of such nature that it
cannot be cured or remedied within 30 days, Mortgagor shall be
entitled to a reasonable period of time to cure or remedy such
Event of Default, provided Mortgagor commences the cure or remedy
thereof within the 30 day period following the giving of notice
and thereafter proceeds with diligence to complete such cure or
remedy.
11. Mortgagor agrees that if Mortgagee accelerates the whole or any
part of the principal sum hereby secured, or applies any proceeds
as if such application had been made as a result of such
acceleration, pursuant to the provisions hereof, Mortgagor waives
any right to prepay the principal sum hereby secured in whole or
in part without premium and agrees to pay, as yield maintenance
protection and not as a penalty, a "Make Whole Premium," except as
otherwise provided herein. The Make Whole Premium shall be the
greater of one percent (1%) of the principal amount to be prepaid
or a premium calculated as follows:
(a) Determine the "Reinvestment Yield." The Reinvestment Yield
will be equal to the yield on the applicable U.S. Treasury
Issue ("primary issue")* published one week prior to the
date of prepayment and converted to an equivalent monthly
compounded nominal yield.
-18-
*In the event there is no market activity involving the
primary issue at the time of prepayment, Mortgagee shall
choose a comparable Treasury Bond, Note or Xxxx ("secondary
issue") which Mortgagee deems to be similar to the primary
issue's characteristics (i.e., rate, remaining time to
maturity, yield).
(b) Calculate the "Present Value of the Mortgage." The Present
Value of the Mortgage is the present value of the payments
to be made in accordance with the Note (all installment
payments and any remaining payment due on the Call Date (as
defined in the Note), or if the Call Date has already
passed, on the Maturity Date) discounted at the Reinvestment
Yield for the number of months remaining from the date of
prepayment to the Call Date, or if the Call Date has already
passed, to the Maturity Date. In the event of a partial
prepayment as a result of the aforementioned application of
proceeds, the Present Value of the Mortgage shall be
calculated in accordance with the preceding sentence
multiplied by the fraction which results from dividing the
amount of the prepaid proceeds by the principal balance
immediately prior to prepayment.
(c) Subtract the amount of the prepaid proceeds from the Present
Value of the Mortgage as of the date of prepayment. Any
resulting positive differential shall be the premium.
As set forth above, the U.S. Treasury Issue applicable for
each prepayment period is as follows:
PREPAYMENT PERIOD U.S. TREASURY ISSUE
----------------- -------------------
To March 15, 2005 February 2005n 7 1/2
March 15, 2005 to February 15, 2011 *
*At this time there is not a U.S. Treasury Issue for this
prepayment period. At the time of prepayment Mortgagee shall
select in its sole and absolute discretion a U.S. Treasury
Issue with similar remaining time to maturity as the Note.
12. Upon the occurrence of any Event of Default, in addition to any
other rights or remedies provided in the Loan Documents, at law,
in equity or otherwise, Mortgagee shall have the right to
foreclose the lien hereof, and to the extent permitted herein and
by applicable law to sell the Premises by sale independent of the
foreclosure proceedings. In any suit to foreclose the lien hereof,
and in any sale of the Premises, there shall be allowed and
included as additional indebtedness payable by Mortgagor to
Mortgagee and secured hereby all expenditures and expenses which
may be paid or incurred by or on behalf of Mortgagee for
attorneys' fees and costs, including attorneys' fees and costs on
appeal, appraisers' fees, expenditures for documentary and expert
evidence, stenographer's charges, publication and advertising
costs, survey costs, environmental audits and costs (which may be
estimated as to items to be expended after the entry of any
decree) of procuring all such abstracts of title, title searches
and examinations, title insurance policies, Torrens certificates
and similar data and assurances with respect to title as Mortgagee
deems reasonably necessary either to prosecute such
-19-
suit or to consummate such sale or to evidence to bidders at any
sale the true condition of the title to or the value of the
Premises.
13. The proceeds of any foreclosure sale, or other sale of the
Premises in accordance with the terms hereof or as permitted by
law, shall be distributed and applied in the following order of
priority: First, to the payment of all costs and expenses incident
to the foreclosure and/or sale proceedings, including all items as
are mentioned in any preceding or succeeding paragraph hereof;
second, to the payment of all other items which under the terms
hereof constitute secured indebtedness in addition to that
evidenced by the Note, with interest thereon as herein provided;
third, to the payment of all principal and accrued interest
remaining unpaid on the Note; fourth, any surplus to the
Mortgagor, its successors or assigns, as their rights may appear.
14. During the continuance of any Event of Default, Mortgagor shall
forthwith upon demand of Mortgagee surrender to Mortgagee
possession of the Premises, and Mortgagee shall be entitled to
take actual possession of the Premises or any part thereof
personally or by its agents or attorneys, and Mortgagee in its
discretion may, with or without force and with or without process
of law, enter upon and take and maintain possession of all or any
part of the Premises together with all documents, books, records,
papers and accounts of the Mortgagor or the then owner of the
Premises relating thereto, and may exclude Mortgagor, its agents
or assigns wholly therefrom, and may as attorney-in-fact or agent
of the Mortgagor, or in its own name as Mortgagee and under the
powers herein granted:
(a) hold, operate, manage or control the Premises and conduct
the business, if any, thereof, either personally or by its
agents, and with full power to use such measures, legal or
equitable, as in its discretion it deems proper or necessary
to enforce the payment or security of the income, rents,
issues and profits of the Premises, including actions for
the recovery of rent, actions in forcible detainer and
actions in distress for rents, hereby granting full power
and authority to exercise each and every of the rights,
privileges and powers herein granted at any and all times
hereafter, without notice to Mortgagor;
(b) cancel or terminate any lease or sublease for any cause or
on any ground which would entitle Mortgagor to cancel the
same;
(c) elect to cancel any lease or sublease made subsequent to
this Mortgage or subordinated to the lien hereof unless this
Mortgage has specifically been made subordinate to such
lease or sublease;
(d) extend or modify any then existing leases and make new
leases, which extensions, modifications or new leases may
provide for terms to expire, or for options to lessees to
extend or renew terms to expire, beyond the Maturity Date of
the Note and the issuance of a deed or deeds to a purchaser
or purchasers at a foreclosure sale, it being understood and
agreed that any such leases, and the options or other such
provisions to be contained therein, shall be binding upon
-20-
Mortgagor and all persons whose interests in the Premises
are subject to the lien hereof and shall be binding also
upon the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption from sale, discharge of the
indebtedness secured hereby, satisfaction of any foreclosure
decree, or issuance of any certificate of sale or deed to
any purchaser;
(e) make all necessary or proper repairs, decorating, renewals,
replacements, alterations, additions, betterments and
improvements to the Premises as it may deem judicious,
insure and reinsure the same and all risks incidental to
Mortgagee's possession, operation and management thereof,
and receive all income, rents, issues and profits.
Mortgagee shall not be obligated to perform or discharge, nor does
it hereby undertake to perform or discharge, any obligation, duty
or liability under any lease, and the Mortgagor shall and does
hereby agree to indemnify and to hold Mortgagee harmless of and
from all liability, loss or damage which it might incur under said
leases or under or by reason of the assignment thereof, and of and
from any and all claims or demands whatsoever which may be
asserted against it by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms,
covenants or agreements contained in said leases. Should Mortgagee
incur any such liability, loss or damage under any of said leases,
or under or by reason of the assignment thereof, or in the defense
of any claims or demands, the amount thereof, including costs,
expenses and reasonable attorneys' fees and costs, including
reasonable attorneys' fees and costs on appeal, shall be secured
hereby and Mortgagor shall reimburse Mortgagee therefor
immediately upon demand, together with interest at the Default
Rate from the date of payment by Mortgagee to the date of
reimbursement.
15. Mortgagee in the exercise of the rights and powers conferred upon
it shall have the full power to use and apply the avails, rents,
issues and profits of the Premises to the payment of or on account
of the following, at the election of Mortgagee and in such order
as Mortgagee may determine:
(a) to the payment of the expenses of operating the Premises,
including cost of management and leasing thereof (which
shall include reasonable compensation to Mortgagee and its
agent or agents if management is delegated to an agent or
agents, and shall also include lease commissions and other
compensation and expenses of seeking and procuring tenants
and entering into leases), established claims for damages,
if any, and premiums on insurance as hereinabove authorized;
(b) to the payment of taxes and special assessments now due or
which may hereafter become due on the Premises;
(c) to the payment of all repairs, decorating, renewals,
replacements, alterations, additions, betterments and
improvements of the Premises and of placing the Premises in
such condition as will in the judgment of Mortgagee make it
readily rentable; and/or
-21-
(d) to the payment of any principal, interest or other
indebtedness secured hereby or any deficiency which may
result from any foreclosure sale.
16. During the continuance of any Event of Default under this
Mortgage, Mortgagee may apply to any court having jurisdiction for
the appointment of a receiver of the Premises. Such appointment
may be made either before or after sale, without notice, without
regard to the solvency or insolvency of Mortgagor at the time of
application for such receiver and without regard to the then value
of the Premises or the adequacy of Mortgagee's security. Mortgagee
or any holder of the Note may be appointed as such receiver. The
receiver shall have power to collect the rents, issues and profits
of the Premises during the pendency of any foreclosure proceedings
and, in case of a sale, during the full redemption period, if any,
as well as during any further times when Mortgagor, except for the
intervention of such receiver, would be entitled to collect such
rents, issues and profits. In addition, the receiver shall have
all other powers which shall be necessary or are usual in such
cases for the protection, possession, control, management and
operation of the Premises during the whole of said period. The
court from time to time may authorize the receiver to apply the
net income in his hands at Mortgagee's election and in such order
as Mortgagee may determine in payment in full or in part of:
(a) principal, interest and all other indebtedness secured
hereby or provided by any decree foreclosing this Mortgage,
or any tax, special assessment or other lien which may be or
become superior to the lien hereof or of such decree,
provided such application is made prior to foreclosure sale;
and
(b) the deficiency in case of a sale and deficiency.
17. (a) Mortgagor agrees that all reasonable costs, charges and
expenses, including reasonable attorneys' fees, incurred or
expended by Mortgagee arising out of or in connection with
any action, proceeding or hearing, legal, equitable or
quasi-legal, including the preparation therefor and any
appeal therefrom, in any way affecting or pertaining to this
Mortgage, the Note, any other instrument or agreement
securing the Note, or the Premises, shall be promptly paid
by Mortgagor. All such sums not promptly paid by Mortgagor
shall be added to the indebtedness secured hereby and shall
bear interest at the Default Rate from the date of such
advance and shall be due and payable on demand.
(b) Mortgagor hereby agrees that upon the occurrence of an Event
of Default and the acceleration of the principal sum secured
hereby pursuant to this Mortgage, to the full extent that
such rights can be lawfully waived, Mortgagor hereby waives
and agrees not to insist upon, plead, or in any manner take
advantage of, any notice of acceleration, any stay,
extension, exemption, homestead, marshaling or moratorium
law or any law providing for the valuation or appraisement
of all or any part of the Premises prior to any sale or
sales thereof under any provision of this Mortgage or before
or after any decree, judgment or order of any court or
confirmation thereof, or claim or exercise any right to
redeem all or any part of the Premises so
-22-
sold and hereby expressly waives to the full extent
permitted by applicable law on behalf of itself and each and
every person or entity acquiring any right, title or
interest in or to all or any part of the Premises, all
benefit and advantage of any such laws which would otherwise
be available to Mortgagor or any such person or entity, and
agrees that neither Mortgagor nor any such person or entity
will invoke or utilize any such law to otherwise hinder,
delay or impede the exercise of any remedy granted or
delegated to Mortgagee herein but will permit the exercise
of such remedy as though any such laws had not been enacted.
Mortgagor hereby further expressly waives to the full extent
permitted by applicable law on behalf of itself and each and
every person or entity acquiring any right, title or
interest in or to all or any part of the Premises any and
all rights of redemption from any sale or any order or
decree of foreclosure obtained pursuant to provisions of
this Mortgage.
18. Mortgagee, at its option, is authorized to foreclose this Mortgage
subject to the rights of any tenants of the Premises, and the
failure to make any such tenants parties defendant to any
foreclosure proceedings or to foreclose their rights or the
failure to disturb the possession of any such tenants after
foreclosure will not be, nor may it be asserted by Mortgagor as a
defense to any proceedings instituted by Mortgagee to collect the
sums secured hereby or to collect any deficiency remaining unpaid
after the foreclosure sale of the Premises.
19. Mortgagor hereby assigns to Mortgagee directly and absolutely, and
not merely collaterally, the rents, issues, profits, royalties,
and payments payable under any lease of the Premises, or portion
thereof, including any oil, gas or mineral lease, or any
installments of money payable pursuant to any agreement or any
sale of the Premises or any part thereof, subject only to a
license, if any, granted by Mortgagee to Mortgagor with respect
thereto prior to the occurrence of a default hereunder. Mortgagee,
without regard to the adequacy of any security for the
indebtedness hereby secured, shall be entitled to (a) collect such
rents, issues, profits, royalties, payments and installments of
money and apply the same as more particularly set forth in this
paragraph, all without taking possession of the Premises, or (b)
enter and take possession of the Premises or any part thereof, in
person, by agent, or by a receiver to be appointed by the court
and to xxx for or otherwise collect such rents, issues, profits,
royalties, payments and installments of money. Mortgagee may apply
any such rents, issues, profits, royalties, payments and
installments of money so collected, less costs and expenses of
operation and collection, including reasonable attorneys' fees and
costs and reasonable attorneys' fees and costs on appeal, upon any
principal, interest and all other indebtedness secured hereby, at
Mortgagee's option and in such order as Mortgagee may determine,
and, if such costs and expenses and reasonable attorneys' fees and
costs shall exceed the amount collected, the excess shall be
immediately due and payable. The collection of such rents, issues,
profits, royalties, payments and installments of money and the
application thereof as aforesaid shall not cure or waive any Event
of Default or notice of default hereunder or invalidate any act
done pursuant to such notice, except to the extent any such Event
of Default is fully cured. Failure or discontinuance of Mortgagee
at any time, or from time to time, to collect any such moneys
shall not impair in any manner the subsequent enforcement by
Mortgagee of the right, power and authority herein conferred on
Mortgagee. Nothing contained herein, including the exercise of any
right, power or authority herein granted to
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Mortgagee, shall be, or be construed to be, an affirmation by
Mortgagee of any tenancy, lease or option, or an assumption of
liability under, or the subordination of the lien or charge of
this Mortgage to any such tenancy, lease or option. Mortgagor
hereby agrees that, in the event Mortgagee exercises its rights as
in this paragraph provided, Mortgagor waives any right to
compensation for the use of Mortgagor's furniture, furnishings or
equipment in the Premises for the period such assignment of rents
or receivership is in effect, it being understood that the rents,
issues, profits, royalties, payments and installments of money
derived from the use of any such items shall be applied to
Mortgagor's obligations hereunder as above provided.
20. (a) Mortgagor has executed and delivered that certain
Assignment of Leases and Rents of even date herewith
assigning to Mortgagee directly and absolutely, and not
merely collaterally, the interest of Mortgagor as lessor
under the existing leases of the Premises, as well as all
other leases which may hereafter be made in respect of the
Premises, and the rents and other income arising thereunder
and from the use of the Premises. Said Assignment of Leases
and Rents grants to Mortgagee specific rights and remedies
in respect of said leases and governs the collection of
rents and other income thereunder and from the use of the
Premises, and such rights and remedies so granted shall be
cumulative of those granted herein.
(b) Mortgagor shall keep and perform all terms, conditions and
covenants required to be performed by it as lessor under the
aforesaid leases; shall promptly advise Mortgagee in writing
of any claim of default by Mortgagor made by a lessee under
any such lease or of any default thereunder by a lessee; and
shall promptly provide Mortgagee with a copy of any notice
of default or other notice served upon Mortgagor by any such
lessee. Mortgagor will not cancel, modify or alter, or
accept the surrender of, any existing or future lease of the
Premises or any part thereof without first obtaining written
consent of Mortgagee unless otherwise specifically permitted
in the Assignment of Leases and Rents of even date herewith.
21. (a) All rights and remedies granted to Mortgagee in the Loan
Documents shall be in addition to and not in limitation of
any rights and remedies to which it is entitled in equity,
at law or by statute, and the invalidity of any right or
remedy herein provided by reason of its conflict with
applicable law or statute shall not affect any other valid
right or remedy afforded to Mortgagee. No waiver of any
Event of Default or of any default in the performance of any
covenant contained in the Note or any other instrument
securing the Note shall at any time thereafter be held to be
a waiver of any rights of the Mortgagee hereunder, nor shall
any waiver of a prior Event of Default or default operate to
waive any subsequent Event of Default or default. All
remedies provided for herein, in the Note and in any other
instrument securing the Note are cumulative and may, at the
election of Mortgagee, be exercised alternatively,
successively, or concurrently. No act of Mortgagee shall be
construed as an election to proceed under any one provision
herein to the exclusion of any other provision or to proceed
against one portion of the Premises to the exclusion of any
other portion.
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(b) This Mortgage is subject to any existing statutory condition
and upon the further condition that all covenants and
agreements of Mortgagor herein shall be fully or timely
performed, time being of the essence under this Mortgage. No
breach of any such condition or agreement shall be
permitted, and in the event of any such breach, Mortgagee
shall have any statutory power of sale, and this Mortgage
shall be subject to foreclosure as provided by law.
22. By accepting payment of any sum secured hereby after its due date,
Mortgagee does not waive its right either to require prompt
payment when due of all other sums or installments so secured or
to declare a default for failure to pay such other sums or
installments.
23. Notwithstanding anything herein or in the Note to the contrary, no
provision contained herein or in the Note which purports to
obligate Mortgagor to pay any amount of interest or any fees,
costs or expenses which are in excess of the maximum permitted by
applicable law, shall be effective to the extent that it calls for
the payment of any interest or other sums in excess of such
maximum. All agreements between Mortgagor and Mortgagee, whether
now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of
demand for payment of or acceleration of the maturity of any of
the indebtedness secured hereby or otherwise, shall the interest
contracted for, charged or received by Mortgagee exceed the
maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to
Mortgagee in excess of the maximum lawful amount, the interest
payable to Mortgagee shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance
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 at Mortgagee's option, be
refunded to Mortgagor or be applied to the reduction of the
principal balance of the indebtedness secured hereby and not to
the payment of interest or, if such excessive interest exceeds the
unpaid balance of principal of the indebtedness secured hereby,
such excess shall be refunded to Mortgagor. This paragraph shall
control all agreements between Mortgagor and Mortgagee.
24. In the event one or more provisions of the Loan Documents shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Mortgage shall be construed as if
any such provision had never been contained herein.
25. If the payment of the indebtedness secured hereby or of any part
thereof shall be extended or varied, or if any part of the
security be released, all persons now or at any time hereafter
liable therefor, or interested in said Premises, shall be held to
assent to such extension, variation or release, and their
liability and the lien and all provisions hereof shall continue in
full force, the right of recourse against all such persons being
expressly reserved by Mortgagee notwithstanding such variation or
release.
26. Upon payment in full of the indebtedness secured hereby and the
performance by Mortgagor of all of the obligations imposed on
Mortgagor in the Loan Documents, these presents shall be null and
void,
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and Mortgagee shall release this Mortgage and the lien hereof by
proper instrument executed in recordable form.
27. Mortgagor shall have the privilege of making prepayments on the
principal of the Note (in addition to the required payments) if
and only to the extent and upon the terms and conditions, if any,
expressly set forth in the Note. If not expressly so set forth,
the Note is not subject to such prepayment.
28. (a) Mortgagor hereby grants to Mortgagee and its respective
agents, attorneys, employees, consultants, contractors and
assigns an irrevocable license and authorization to enter
upon and inspect the Premises and all facilities located
thereon at reasonable times.
(b) In connection with any sale or conveyance of this Mortgage,
Mortgagor grants to Mortgagee and its respective agents,
attorneys, employees, consultants, contractors and assigns
an irrevocable license and authorization to conduct, at
Mortgagee's expense, a Phase I environmental audit of the
Premises.
(c) In the event there has been an Event of Default or in the
event Mortgagee has formed a reasonable belief, based on its
inspection of the Premises or other factors known to it,
that Hazardous Materials may be present on the Premises,
then Mortgagor grants to Mortgagee and its respective
agents, attorneys, employees, consultants, contractors and
assigns an irrevocable license and authorization to conduct,
at Mortgagor's expense, environmental tests of the Premises,
including without limitation, a Phase I environmental audit,
subsurface testing, soil and ground water testing, and other
tests which may physically invade the Premises or facilities
(the "Tests"). The scope of the Tests shall be such as
Mortgagee, in its sole discretion, determines is necessary
to (i) investigate the condition of the Premises, (ii)
protect the security interests created under this Mortgage,
or (iii) determine compliance with Environmental Laws, the
provisions of this Mortgage and other matters relating
thereto.
(d) The foregoing licenses and authorizations are intended to be
a means of protection of Mortgagee's security interest in
the Premises and not as participation in the management of
the Premises.
29. Within 15 days after any written request by Mortgagee, Mortgagor
shall certify, by a written statement duly acknowledged, the
amount of principal and interest then owing on the Note and
whether any offsets or defenses exist against the indebtedness
secured hereby.
30. (a) Mortgagor shall furnish to Mortgagee within 90 days after
the end of each fiscal year of Mortgagor, a detailed and
analytical financial report prepared in accordance with
generally accepted accounting principles consistently
applied, certified in a manner and otherwise in form and
substance acceptable to Mortgagee covering the full and
complete operation of the Premises, including without
limitation: (i) income and expense statements and budget,
and (ii) a report of the leasing status of the Premises as
of the end of such year, identifying the lessee,
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square footage leased, rental amount, base rental increases,
rental concessions and/or rental deferments, if any,
commencement and expiration dates under each lease of the
Premises and a listing of sales volumes attained by lessees
of the Premises under percentage leases for the immediately
preceding year and an aged accounts receivable report. Such
reports shall be prepared by an accountant who may be an
employee of Mortgagor, or of an affiliate of Mortgagor,
acceptable to Mortgagee. In addition to the reports referred
to herein, Mortgagor shall promptly supply any additional
information or records relating to the Premises or its
operation as Mortgagee may from time to time request.
(b) Mortgagor shall submit to Mortgagee within 90 days following
the end of each fiscal year annual balance sheets and income
statements for Mortgagor and Equity One, Inc.. Said balance
sheets and income statements shall be subject to Mortgagee's
review.
31. Any notice which any party hereto may desire or be required to
give to the other shall be deemed to be an adequate and sufficient
notice if given in writing and service is made by either (i)
registered or certified mail, postage prepaid, in which case
notice shall be deemed to have been received three (3) business
days following deposit to U.S. mail; or (ii) nationally recognized
overnight air courier, next day delivery, prepaid, in which case
such notice shall be deemed to have been received one (1) business
day following delivery to such nationally recognized overnight air
courier. All notices shall be addressed to Mortgagor at its
address given on the first page hereof or to Mortgagee at 000 Xxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn: Commercial Real Estate
Loan Administration, Loan No. D-751849, or to such other place as
either party may by written notice to the other hereafter
designate as a place for service of notice.
32. This Mortgage and all the provisions hereof shall extend to and be
binding upon Mortgagor and all persons claiming by, under or
through Mortgagor, and the word "Mortgagor" when used herein shall
include all such persons and all persons liable for the payment of
the indebtedness secured hereby or any part thereof, whether or
not such persons have executed the Note or this Mortgage. The word
"Mortgagee" as used herein shall include the successors and
assigns of the Mortgagee named herein, and the holder or holders
from time to time of the Note secured hereby.
33. Mortgagor has had the opportunity to fully negotiate the terms
hereof and modify the draftsmanship of this Mortgage. Therefore,
the terms of this Mortgage shall be construed and interpreted
without any presumption, inference, or rule requiring construction
or interpretation of any provision of this Mortgage against the
interest of the party causing this Mortgage or any portion of it
to be drafted. Mortgagor is entering into this Mortgage freely and
voluntarily without any duress, economic or otherwise.
34. This Mortgage shall be governed by and construed in accordance
with the laws of the State of Florida.
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35. As used herein, the term "Default Rate" means a rate equal to the
lesser of (i) 4% per annum above the then applicable interest rate
payable under the Note or (ii) the maximum rate allowed by
applicable law.
36. Notwithstanding any provision of this Mortgage, the Note or any
other instruments evidencing or securing the loan evidenced by the
Note which might be construed to the contrary, the assignment of
rents and other amounts provided for herein is an absolute
assignment and not merely a collateral assignment or a security
interest, and is effective whether or not a default occurs
hereunder, subject only to a license, if any, granted by Mortgagee
to Mortgagor with respect thereto prior to the occurrence of a
default beyond any applicable notice and cure periods hereunder,
the extent of which may be more fully described in the Assignment
of Leases and Rents. It is the intention of Mortgagor and
Mortgagee that the assignment effectuated by this Mortgage with
respect to such rents and other amounts payable under the leases
shall be a direct and currently effective assignment and shall not
constitute merely the granting of a lien, security interest or
pledge for the purpose of securing the indebtedness secured
hereby. In the event that a court of competent jurisdiction
determines that, notwithstanding such expressed intent of the
parties, Mortgagee's interest in the rents and other amounts
payable under the leases constitutes a lien on or security
interest in or pledge thereof, it is agreed and understood that
the forwarding of a notice to Mortgagor after the occurrence of a
default beyond any applicable notice and cure periods, advising
Mortgagor of the revocation of any license then in favor of
Mortgagor to collect such rents or other amounts payable under the
leases, or of the existence of a default beyond any applicable
notice and cure periods, shall be sufficient action by Mortgagee
to (i) perfect such lien on or security interest in or pledge of
the rents and other amounts payable under the leases, (ii) take
possession thereof, and (iii) entitle Mortgagee to immediate and
direct payment of the rents and other amounts payable under the
leases, for application as provided in this Mortgage, all without
the necessity of any further action by Mortgagee, including,
without limitation, any action to obtain possession of the land,
improvements or any other portion of the premises. Notwithstanding
the direct and absolute assignment of the rents and other amounts
payable under the leases as herein described, there shall be no
pro tanto reduction in any portion of the indebtedness secured by
this Mortgage except with respect to rents and other amounts
payable under the leases actually received by Mortgagee and
applied by Mortgagee toward payment of the indebtedness. Mortgagee
may, upon written notice to Mortgagor, elect to (i) exclude from
the assignment provided in this Mortgage any of the leases as
specified in such notice so that the interest under such indicated
lease is not assigned to Mortgagee, and (ii) subordinate the lien
and other terms and provisions of this Mortgage to any of the
leases as indicated in said notice to Mortgagor.
37. Mortgagor knowingly, voluntarily and intentionally waives, to the
extent permitted by law, trial by jury in any actions brought by
Mortgagor or Mortgagee in connection with this Mortgage, any of
the Loan Documents, the indebtedness secured hereby, or any other
statements or actions of Mortgagee.
38. (a) Notwithstanding any provision to the contrary in the Note,
this Mortgage or any other instrument or agreement by which
the Note is secured and except as otherwise provided in this
paragraph, the liability of Mortgagor under the Loan
Documents shall be limited to the interest
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of Mortgagor in the Premises and the rents, issues, proceeds
and profits thereof. In the event of foreclosure of the
liens evidenced by the Loan Documents, no judgment for any
deficiency upon the indebtedness evidenced by the Loan
Documents shall be sought or obtained by Mortgagee against
Mortgagor. Nothing contained in this paragraph shall:
(i) limit or impair Mortgagee's right to declare
an Event of Default under the Loan Documents
in the event of the failure of Mortgagor to
make any payment or to perform any
obligation under any of the Loan Documents
within the time periods provided therein;
(ii) be construed as limiting the obligations of
Mortgagor to any tenant under any lease of
the Premises;
(iii) in any way limit or impair the lien or
enforcement of the Loan Documents pursuant
to the terms thereof; or
(iv) limit the obligations of any indemnitor or
guarantor, if any, of Mortgagor's
obligations under the Loan Documents.
(b) Notwithstanding subparagraph (a) above, Mortgagor shall be
personally liable to Mortgagee for:
(i) Mortgagor's failure to comply with
paragraphs 2 (taxes and assessments) and 3
(insurance) hereof;
(ii) any event or circumstance for which
Mortgagor indemnifies Mortgagee under
paragraph 1(m) (environmental indemnity)
hereof or under any separate Environmental
Indemnity Agreement;
(iii) Mortgagor's failure to pay utilities on or
before the date such payments are due;
(iv) operation and maintenance of the Premises;
(v) any sums expended by Mortgagee in fulfilling
the obligations of Mortgagor as lessor under
any lease of the Premises prior to a sale of
the Premises pursuant to foreclosure or
power of sale, a bona fide sale (permitted
by the terms of paragraph 1(l) hereof or
consented to in writing by Mortgagee) to an
unrelated third party or upon conveyance to
Mortgagee of the Premises by a deed
acceptable to Mortgagee in form and content
(each of which shall be referred to as a
"Sale" for purposes of this paragraph) or
expended by Mortgagee after a Sale of the
Premises for obligations of Mortgagor which
arose prior to a Sale of the Premises;
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(vi) any rents or other income regardless of type
or source of payment (including, but not
limited to, CAM charges, lease termination
payments, refunds of any type, prepayment of
rents, settlements of litigation, or
settlements of past due rents) from the
Premises which Mortgagor has received or has
a right to receive after an Event of Default
under the Loan Documents or an event which
with the passage of time, the giving of
notice or both would constitute an Event of
Default, either or both of which have
occurred and are continuing, and which are
not applied to (A) expenses of operation and
maintenance of the Premises and the taxes,
assessments, utility charges and insurance
of the Premises, taking into account
sufficient reserves for the same and for
replacements and recurring items, and (B)
payment of principal, interest and other
charges when due under the Loan Documents;
provided that any payments to parties
related to Mortgagor shall be considered
expenses of operation only if they are at
market rates or fees consistent with market
rates or fees for the same or similar
services;
(vii) any security deposits of tenants, together
with any interest on such security deposits
required by law or the leases, not turned
over to Mortgagee upon conveyance of the
Premises to Mortgagee pursuant to
foreclosure or power of sale or by a deed
acceptable to Mortgagee in form and content;
(viii) misapplication or misappropriation of tax
reserve accounts, tenant improvement reserve
accounts, security deposits, prepaid rents
or other similar sums paid to or held by
Mortgagor or any other entity or person in
connection with the operation of the
Premises;
(ix) any waste committed or allowed by Mortgagor
with respect to the Premises; and
(x) any insurance or condemnation proceeds or
other similar funds or payments applied by
Mortgagor in a manner other than as
expressly provided in the Loan Documents.
(c) Notwithstanding anything to the contrary in the Loan
Documents, the limitation on liability contained in
subparagraph (a) above SHALL BECOME NULL AND VOID and shall
be of no further force and effect in the event:
(i) of any breach or violation of paragraph 1(l)
(due on sale or encumbrance) hereof, other
than the filing of a nonmaterial mechanic's
lien affecting the Premises, the granting of
any utility or other nonmaterial easement or
servitude burdening the Premises, or any
other transfer or encumbrance not in the
nature of a transfer, reduction or
impairment of any material economic interest
in the Premises; or
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(ii) of any fraud or willful misrepresentation by
Mortgagor regarding the Premises, the making
or delivery of any of the Loan Documents or
in any materials or information provided by
Mortgagor in connection with the loan.
39. This Mortgage shall constitute a security agreement within the
meaning of the Florida Uniform Commercial Code with respect to any
and all sums at any time on deposit for the benefit of Mortgagee
or held by Mortgagee (whether deposited or on behalf of the
Mortgagor or anyone else) pursuant to the provisions of this
Mortgage and with respect to any personal property included in the
granting clauses of this Mortgage, and all replacements of such
personal property, and the proceeds thereof. Upon default, without
limitation of any other remedies, Mortgagee shall have the
remedies of a secured party under the Uniform Commercial Code.
This Mortgage is intended to be a financing statement within the
purview of Florida Statutes Subsection 679.402 with respect to the
personal property described herein. Mortgagor, as debtor, hereby
authorizes Mortgagee, as secured party to execute, deliver, file
or re-file as secured party without joinder of the Mortgagor, any
financing statement, continuation statement or other instruments
that Mortgagee may reasonably require from time to time to perfect
or renew such security interest under the Florida Uniform
Commercial Code.
40. This Mortgage and the indebtedness secured hereby is for the sole
purpose of conducting or acquiring a lawful business, professional
or commercial activity or for the acquisition or management of
real or personal property as a commercial investment, and all
proceeds of such indebtedness shall be used for said business or
commercial investment purpose. Such proceeds will not be used for
the purchase of any security within the meaning of the Securities
Exchange Act of 1934, as amended, or any regulation issued
pursuant thereto, including without limitation, Regulations G, T
and X of the Board of Governors of the Federal Reserve System.
This is not a purchase money mortgage where a seller is providing
financing to a buyer for the payment of all or any portion of the
purchase price, and the Premises secured hereby is not a residence
or homestead or used for mining, grazing, agriculture, timber or
farming purposes.
41. Unless Mortgagee shall otherwise direct in writing, Mortgagor
shall appear in and defend all actions or proceedings purporting
to affect the security hereunder, or any right or power of the
Mortgagee. The Mortgagee shall have the right to appear in such
actions or proceedings. Mortgagor shall save Mortgagee harmless
from all costs and expenses, including reasonable attorneys' fees
and costs of a title search, continuation of abstract and
preparation of survey, incurred by reason of any action, suit,
proceeding, hearing, motion or application before any court or
administrative body in and to which Mortgagee may be or become a
party by reason hereof. Such proceedings shall include but not be
limited to condemnation, bankruptcy, probate and administration
proceedings, as well as any other action, suit, proceeding, right,
motion or application wherein proof of claim is by law required to
be filed or in which it becomes necessary to defend or uphold the
terms of this Mortgage or otherwise purporting to affect the
security hereof or the rights or powers of Mortgagee. All money
paid or expended by Mortgagee in that regard, together with
interest thereon from date of such payment at the Default Rate
shall be additional indebtedness secured hereby and shall be
immediately due and payable by Mortgagor without notice.
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42. During the occurrence of an Event of Default, all rents, issues
and profits collected or received by Mortgagor shall be accepted
and held for Mortgagee in trust and shall not be commingled with
the funds and property of Mortgagor, but shall be promptly paid
over to Mortgagee.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly
executed and delivered as of the date first above written.
WITNESS: EQUITY ONE (LANTANA) INC., a
Florida corporation
By /s/ XXXX X. XXXXXX
--------------------------
Print Name: Xxxx X. Xxxxxx
By /s/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
By /s/ XXX XXXXXX Title: Vice President
--------------------------
Print Name: Xxx Xxxxxx
