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EXHIBIT 10.LXXIX
PREPARED BY AND RETURN TO:
XXXXX XXXXX, P.A.
Xxxxxx X. Xxxxx, Esq.
000 XX Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
MORTGAGE AND SECURITY AGREEMENT
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THIS MORTGAGE AND SECURITY AGREEMENT is executed effective the
3rd day of November, 1999 by and between VIRAGEN, INC., A DELAWARE CORPORATION
(hereinafter referred to as the "Mortgagor"), whose mailing address is 000
Xxxxxxxxx 00xx Xxxxxx, #000, Xxxxxxxxxx, Xxxxxxx 00000, and EQUITABLE EQUITY
LENDING, INC.,a Florida corporation (hereinafter referred to as the
"Mortgagee"), whose mailing address is 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
That for diverse, good and valuable considerations and to
secure the payment of an indebtedness in the aggregate sum of FOUR HUNDRED
THOUSAND AND 00/100 DOLLARS ($400,000.00) or so much thereof as may be advanced,
to be paid in accordance with a promissory note of even date herewith, as such
promissory note may hereafter be amended, consolidated, renewed or restated
(hereinafter referred to as the"Note") together with interest thereon and any
and all sums due or which may become due from the Mortgagor to the Mortgagee,
which Note provides that the final installment of principal and interest shall
be due and payable not later than May 3, 2000. The Mortgagor does grant,
bargain, sell, alien, remise, release, convey and confirm unto the Mortgagee,
its successors and assigns, in fee simple, all of that certain tract of land of
which the Mortgagor is now seized and possessed and in actual possession,
situate in the County of Miami-Dade, State of Florida, which is more fully
described in EXHIBIT "1" attached hereto and made a part hereof, together with
the buildings and improvements thereon erected or to be erected (hereinafter
referred to as the "Premises");
TOGETHER with all leasehold estate, right, title and interest
of the Mortgagor in and to all leases or subleases covering the Premises or any
portion thereof now or hereafter existing or entered into, and all right, title
and interest of the Mortgagor thereunder, including, without limitation, all
cash or security deposits, advance rentals, and deposits or payments of similar
nature;
TOGETHER with all right, title and interest of the Mortgagor
in and to all options to purchase or lease the Premises or any portion thereof
or interest therein, and any greater estate in the Premises owned or hereafter
acquired;
TOGETHER with all interests, estate or other claims, both in
law and in equity which the Mortgagor now has or may hereafter acquire in the
Premises;
TOGETHER with all easements, rights-of-way and rights used in
connection therewith or as a means of access thereto, and all tenements,
hereditaments and appurtenances thereof and thereto, and all water rights;
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TOGETHER with any and all buildings, structures and
improvements now or hereafter erected thereon, and all machinery, apparatus,
equipment, fittings, fixtures, whether actually or constructively attached to
the Premises and including all trade, domestic and ornamental fixtures, and
articles of personal property of every kind and nature whatsoever now or
hereafter located in, upon, above or under the Premises or any part thereof and
used or useable in connection with any present or future operation of the
Premises (hereafter collectively called "Improvements" or "Personal Property"),
including, but not limiting the generality of the foregoing, all elevator,
escalator, heating, irrigation, lighting, laundry, incinerating, dynamo,
electrical, electronic, and generating systems and equipment; all engines,
pipes, pumps, tanks, motors, conduits; all telephones and telephone systems,
switches, computerized processors and switchboards; all plumbing and plumbing
fixtures; all lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating and communications systems, appliances and apparatus;
all boilers, stoves, ranges, furnaces, oil burners or units thereof; all air
conditioning and air cooling systems and apparatus; and control systems for any
of the foregoing and all other appliances, furniture and furnishings; in any of
which foregoing equipment Mortgagor now has or may at any time hereafter acquire
any rights of any kind whatsoever, to the full extent of the value of such
Equipment, together with all additions thereto, replacements thereof and all
proceeds of the foregoing personal property. (Mortgagor hereby agreeing with
respect to all additions and replacements, to execute and deliver form time to
time such further instruments as may be requested by Mortgagee to confirm the
conveyance, mortgage, transfer and assignment of any of the foregoing.);
TOGETHER with all right, title and interest of the Mortgagor
in and to any streets and roads abutting said Premises to the center lines
thereof and in and to any strips or gores of land therein;
Whenever requested by the Mortgagee, the Mortgagor will execute and
record at the Mortgagor's expense such financing statements and other
instruments as the Mortgagee may reasonably require in order to insure that all
Personal Property now or hereafter owned by the Mortgagor and used in connection
with the operation of the Premises covered hereby shall be subject to the lien
created by this Mortgage and shall be security for the payment of the Note as
herein provided. The Mortgagor shall have the right hereunder and under said
financing statements or other chattel instruments to replace fixtures or
appliances from time to time with similar items of equal value, provided the
replacements are free of any outstanding ownership interest, financing
statements or encumbrances of any kind in favor of anyone other than the
Mortgagee. In the event the Mortgagor shall fail to execute and record chattel
instruments as required herein within ten (10) days after written request by the
Mortgagee, then the Mortgagor hereby irrevocably appoints the Mortgagee its
attorney-in-fact to execute and deliver such financing statements or other
instruments in the name of, and on behalf of, the Mortgagor;
TOGETHER with all awards and proceeds of condemnation for the
Premises or any part thereof to which the Mortgagor is entitled for any taking
of all or any part of the Premises by condemnation or exercise of the right of
eminent domain. All such awards and condemnation proceeds are hereby assigned to
the Mortgagee, and the Mortgagee is hereby authorized, subject to the provisions
contained in this Mortgage, to apply such awards and condemnation proceeds or
any part thereof, after deducting therefrom any expenses incurred by the
Mortgagee in the collection or handling thereof, toward the payment, in full or
in part, of the Note secured by this Mortgage, notwithstanding the fact that the
amount owing thereon may not then be due and payable;
TOGETHER with all rents, issues and profits of the Premises
and all the estate, right, title and interest of every nature whatsoever of the
Mortgagor in and to the same. The Mortgagor shall execute evidences of such
assignment and such further evidences of such assignment as the Mortgagee may
from time to time reasonably request, which evidences shall include, but not be
limited to, such assignments of rents, issues and profits, in reasonable form,
as the Mortgagee may from time to time request. The Mortgagor shall pay the cost
of recording any such assignments. The Mortgagee is authorized to notify any or
all lessees, tenants or occupants of all or part of said Premises of the
assignment of rents, issues or profits made hereunder or under any such special
assignments. The Mortgagee shall have no personal liability for the performance
of the Mortgagor's covenants under any of said leases either as a result of said
general assignment or any special assignment or as the result of the Mortgagee
taking possession of the Premises or a part thereof for default as hereinafter
provided. The Mortgagee shall not be liable to the Mortgagor for any action
taken or omitted in connection with any such leases or rentals or the operation
of said Premises.
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Until the occurrence of a default as hereinafter provided, the Mortgagor may use
and occupy the Premises and receive all rents, issues and profits thereof.
All of the foregoing property, rights, privileges and
franchises are collectively referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD all and singular Premises hereby conveyed,
the tenements, hereditaments and appurtenances thereunto belonging or in anywise
appertaining and the reversion and reversions, remainder and remainders, rents,
issues and profits thereof and also all the estate, right, title, interest,
property, possession, claim and demand whatsoever as well in law as in equity of
the said Mortgagor in and to the same and every part and parcel thereof unto the
said Mortgagee in fee simple.
PROVIDED ALWAYS, that if the Mortgagor shall pay unto the
Mortgagee any and all indebtedness due by the Mortgagor to the Mortgagee,
including the indebtedness evidenced by the Note including any and all renewals
of the same, and shall perform, comply with and abide by each and every
stipulation, agreement, condition and covenant of the Note and of this Mortgage,
then this Mortgage and the estate hereby created shall cease and be null and
void. Provided, it is further covenanted and agreed by the parties hereto that
this Mortgage also secures the payment of and includes all future or further
advances as shall be made by the Mortgagee herein, or its successors or assigns
to or for the benefit of the Mortgagor, or its heirs, personal representatives,
or assigns within twenty (20) years from the date hereof (except as qualified in
Section 5.10 below) to the same extent as if such future advances were made on
the date of the execution of this Mortgage; provided, however, that the unpaid
balance so secured by this Mortgage at any one time shall not exceed twice the
amount of the indebtedness stated on page 1 of this Mortgage plus interest
thereon; and plus any disbursements made by the Mortgagee for the payment of
taxes, levies and insurance premiums on the said Premises, together with
interest thereon.
To protect the security of this Mortgage, the Mortgagor
further covenants, warrants and agrees with the Mortgagee as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF MORTGAGOR
1.01 PAYMENT OF SECURED OBLIGATIONS. Mortgagor shall pay when
due the principal of, and the interest on, the indebtedness evidenced by the
Note, charges, fees and the principal of, and interest on, any future advances
secured by this Mortgage and shall otherwise comply with all the terms of the
Note, this Mortgage and all other documents executed by Mortgagor in connection
with the Note.
1.02 WARRANTIES AND REPRESENTATIONS. The Mortgagor hereby
covenants with the Mortgagee that the Mortgagor is indefeasibly seized of the
Premises in fee simple; that the Mortgagor has full power and lawful right to
convey the same in fee simple as aforesaid; that it shall be lawful for said
Mortgagee at all times peaceably and quietly to enter upon, hold, occupy and
enjoy said Premises and every part thereof; that said Mortgagor will make such
further assurances to perfect the fee simple title to said Premises in the
Mortgagee, as may reasonably be required; and that the Mortgagor does hereby
fully warrant the title to said Premises and every part thereof and will defend
the same against the lawful claims of all persons whomsoever, subject only to
those matters shown as exceptions in the title insurance policy being delivered
to the Mortgagee simultaneously herewith. The Mortgagor warrants further that
the Improvements have been constructed in compliance with all applicable zoning
and building regulations and in compliance with environmental protection laws
and regulations.
1.03 GROUND LEASES, LEASES OR SUBLEASES. The Mortgagor will,
at the Mortgagor's sole cost and expense, maintain or cause to be performed all
of the covenants, agreements, terms, conditions and provisions on its part to be
kept, observed and performed under any ground lease, lease, or sublease which
may constitute a portion of or an interest in the Premises, shall require its
tenants or subtenants to keep, observe and perform all of the covenants,
agreements, terms, conditions and provisions on their part to be kept, observed
or performed under any and all ground leases, leases or subleases; and shall not
suffer or permit any breach or default to occur with respect to the foregoing;
and in default thereof the Mortgagee shall have the right to perform or to
require performance of any such covenants, agreements, terms, conditions or
provisions of any such ground lease, lease or sublease, and to add any expense
incurred in
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connection therewith to the debt secured hereby, which such expense shall bear
interest from the date of payment to the date of recovery by the Mortgagee at a
rate of interest which is the maximum permitted by Florida law. Any such payment
by the Mortgagee with interest thereon shall be immediately due and payable. The
Mortgagor will not, without the consent of the Mortgagee, consent to the
modification, amendment, cancellation, termination or surrender of any such
ground lease, lease or sublease.
No release or forbearance of any of the Mortgagor's
obligations under any such ground lease, lease or sublease, pursuant to any such
ground lease, lease or sublease, or otherwise, shall release the Mortgagor from
any of its obligations under this Mortgage.
1.04 REQUIRED INSURANCE. The Mortgagor will at all times while
this Mortgage is in effect, at the Mortgagor's sole cost and expense, maintain
or cause to be maintained with respect to the Mortgaged Property and each part
thereof, the following insurance:
(a) So long as any Improvements are located upon the
Premises, Insurance against risks customarily covered by insurance of the type
known as "all risks fire and extended coverage", including, but not limited to,
loss by fire, windstorm, hail, earthquakes, boiler, machinery, explosion, riot,
aircraft, smoke, vandalism, malicious mischief, and vehicle damage, in an amount
not less than the greater of the full one hundred percent (100%) replacement
cost of the Improvements or the face amount of the Note. The policy or policies
shall contain a standard mortgagee clause showing the Mortgagee as the loss
payee.
(b) If at any time during the term of this Mortgage
or any extension, or renewal thereof the Premises are designated a flood prone
or flood risk area pursuant to the Flood Disaster Protection Act of 1973, as
amended or supplemented, and any Improvements are located upon the Premises, the
Mortgagor shall maintain flood insurance as required by the Mortgagee.
(c) Comprehensive public liability insurance
(including coverage for elevators and escalators, if any, on the Premises and,
if any construction of new Improvements occurs after execution of this Mortgage,
completed operations coverage for two (2) years after construction of the
Improvements has been completed) on an "occurrence basis" against claims for
"personal injury" including without limitation bodily injury, death or property
damage occurring on, in or about the Premises and the adjoining streets,
sidewalks and passageways, plus loss of rents coverage, such insurance to afford
immediate minimum protection to a limit of not less than One Million and 00/100
Dollars ($1,000,000.00), or in such greater amount as the Mortgagee may
reasonably require. The policy shall include the Mortgagee as a named insured.
(d) During the course of any construction or repair
of Improvements on the Premises:
(i) Worker's compensation insurance
(including employer's liability insurance, if requested by the Mortgagee) for
all employees of the Mortgagor engaged on or with respect to the Premises in
such amount as is reasonably satisfactory to the Mortgagee, or, if such limits
are established by law, in such amounts; and
(ii) Builder's completed value risk
insurance against "all risks of physical loss", including collapse and transit
coverage, during construction of such Improvements, with deductibles not to
exceed One Thousand and 00/100 Dollars ($1,000.00), in non-reporting form,
covering the total value of work performed and equipment, supplies and materials
furnished. Said policy of insurance shall contain the "permission to occupy upon
completion of work or occupancy" endorsement.
(e) Such other insurance, and in such amounts, as may
from time to time be required by the Mortgagee against the same or other
hazards.
The Mortgagor may effect for its own account any insurance not
required under this Section 1.04, but any such insurance effected by the
Mortgagor on the Premises, whether or not so required, shall be for the mutual
benefit of the Mortgagor and the Mortgagee and shall be subject to the other
provisions of this Mortgage.
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1.05 DELIVERY OF POLICIES, PAYMENT OF PREMIUMS. All policies
of insurance shall be issued by companies and in amounts in each company
satisfactory to the Mortgagee. All policies must have no less than a Best's
Class A XII category designation. All policies of insurance shall have attached
thereto a lender's loss payment endorsement and a waiver of subrogation rights,
both for the benefit of the Mortgagee in form satisfactory to the Mortgagee. The
Mortgagee consents to the Mortgagor providing any of the required insurance
through blanket policies carried by the Mortgagor and covering more than one
location. The Mortgagor shall furnish the Mortgagee with a certificate of
insurance for each such policy setting forth the coverage, the limits of
liability, the name of the carrier, the policy number, and the expiration date.
At least thirty (30) days prior to the expiration of each such policy, the
Mortgagor shall furnish the Mortgagee with evidence satisfactory to the
Mortgagee of the payment of the premium and the reissuance of a policy
continuing insurance in force as required by this Mortgage. All such policies
shall contain the New York standard mortgagee clause and a provision that such
policies will not be cancelled, allowed to expire or materially amended, which
term shall include any reduction in the scope or limits of coverage, without at
least thirty (30) days prior written notice to the Mortgagee. In the event the
Mortgagor fails to provide, maintain, keep in force or deliver and furnish to
the Mortgagee the policies of insurance or certificates thereof, as required by
this Section, the Mortgagee may procure such insurance or single-interest
insurance for such risks covering the Mortgagee's interest, and the Mortgagor
will pay all premiums thereon promptly upon demand by the Mortgagee, and until
such payment is made by the Mortgagor the amount of all such premiums together
with interest thereon at the Default Rate (as that term is defined in the Note)
shall be secured by this Mortgage. In the alternative to demanding payment of
such insurance premiums, the Mortgagee may add the amount of such insurance
premiums to the outstanding principal balance of the Note and secured by this
Mortgage.
1.06 INSURANCE PROCEEDS. That after the happening of any
casualty to the Premises or any part thereof, the Mortgagor shall give prompt
written notice thereof to the Mortgagee.
(a) In the event of any damage or destruction of the
Improvements, the Mortgagee shall have the option in its sole discretion of
applying or paying all or part of the insurance proceeds (i) to any indebtedness
secured hereby and in such order as the Mortgagee may determine, or (ii) to any
restoration of the Improvements, or (iii) to the Mortgagor.
(b) In the event of such loss or damage, all proceeds
of insurance shall be payable to the Mortgagee, and the Mortgagor hereby
authorizes and directs any affected insurance company to make payment of such
proceeds directly to the Mortgagee. The Mortgagee is hereby authorized and
empowered by the Mortgagor to settle, adjust or compromise any claims for loss,
damage or destruction under any policy or policies of insurance.
(c) Nothing herein contained shall be deemed to
excuse the Mortgagor from repairing or maintaining the Premises as provided in
this Mortgage or restoring all damage or destruction to the Premises, regardless
of whether or not there are insurance proceeds available or whether any such
proceeds are sufficient in amount, and the application or release by the
Mortgagee of any insurance proceeds shall not cure or waive any default or
notice of default under this Mortgage or invalidate any act done pursuant to
such notice.
1.07 ASSIGNMENT OF POLICIES UPON FORECLOSURE. In the event of
foreclosure of this Mortgage or other transfer of title or assignment of the
Premises in extinguishment, in whole or in part, of the debt secured hereby all
right, title and interest of the Mortgagor in and to all policies of insurance
required by this Section shall inure to the benefit of and pass to the successor
in interest to the Mortgagor or the purchaser or grantee of the Premises. The
Mortgagor hereby appoints the Mortgagee its attorney-in-fact to endorse any
checks, drafts or other instruments representing any proceeds of such insurance,
whether payable by reason of loss thereunder or otherwise.
1.08 INDEMNIFICATION; SUBROGATION; WAIVER OF OFFSET.
(a) If the Mortgagee is made a party defendant to any
litigation concerning this Mortgage or the Premises or any part thereof or
interest therein, or the occupancy thereof by the Mortgagor,
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then the Mortgagor shall indemnify, defend and hold the Mortgagee harmless from
all liability by reason of said litigation, including reasonable attorneys' fees
and expenses incurred by the Mortgagee in any such litigation, whether or not
any such litigation is prosecuted to judgment. If the Mortgagee commences an
action against the Mortgagor to enforce any of the terms hereof or because of
the breach by the Mortgagor of any of the terms hereof, or for the recovery of
any sum secured hereby, the Mortgagor shall pay to the Mortgagee reasonable
attorneys' fees and expenses, and the right to such reasonable attorneys' fees
and expenses shall be deemed to have accrued on the commencement of such action,
and shall be enforceable whether or not such action is prosecuted to judgment.
If the Mortgagor breaches any term of this Mortgage, the Mortgagee may employ an
attorney or attorneys to protect its rights hereunder, and in the event of such
employment following any breach by the Mortgagor, the Mortgagor shall pay the
Mortgagee's reasonable attorneys' fees and expenses incurred by the Mortgagee,
whether or not an action is actually commenced against the Mortgagor by reason
of breach. Notwithstanding the existence of Florida Statute 57.105(2) or any
statute of a like or similar nature, the Mortgagor hereby waives any right to
any attorneys' fees thereunder and the Mortgagor agrees that the Mortgagee
exclusively shall be entitled to indemnification and recovery of any and all
attorneys' fees arising out of or related to this Mortgage and/or any agreement
contemplated to be executed in conjunction herewith.
(b) The Mortgagor waives any and all right to claim or recover
against the Mortgagee, its officers, employees, agents and representatives, for
loss of or damage to the Mortgagor, the Premises, the Mortgagor's property or
the property of others under the Mortgagor's control from any cause insured
against or required to be insured against by the provisions of this Mortgage.
(c) All sums payable by the Mortgagor hereunder shall be paid
without notice, demand, counterclaim, set off, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of the Mortgagor hereunder shall in no way be released or
discharged (except as expressly provided herein) by reason of: (i) any damage to
or destruction of or any condemnation or similar taking of the Premises or any
part thereof; (ii) any restriction or prevention of or interference with any use
of the Premises or any part thereof; (iii) any title defect or encumbrance or
any eviction from the Premises or the Improvements or any part thereof by title
paramount or otherwise; (iv) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Mortgagee, or any action taken with respect to this Mortgage by
any trustee or receiver of the Mortgagee, or by any court, in any such
proceeding.
1.09 TAXES, UTILITIES AND IMPOSITIONS. The Mortgagor will
pay, or cause to be paid and discharged, on or before the last day on which they
may be paid without penalty or interest, all such duties, taxes, sewer rents,
charges for water, or for setting or repairing meters, and all other utilities
in the Improvements or on the Premises or any part thereof, or any assessments
and payments, usual or unusual, extraordinary or ordinary, which shall be
imposed upon or become due and payable or become a lien upon the Premises or any
part thereof and the sidewalks or streets in front thereof and any vaults
therein by virtue of any present or future law of the United States or of the
State, County or City wherein the Premises are located (all of the foregoing
being herein collectively called "Impositions"). In default of any such payment
of any Imposition, the Mortgagee may pay the same and the amount so paid by the
Mortgagee shall, at the Mortgagee's option, either (i) become immediately due
and payable with interest at the maximum rate permitted by Florida law or (ii)
be added to the outstanding principal balance of the loan evidenced by the Note,
and in either case, shall be deemed part of the indebtedness secured by this
Mortgage.
If at any time there shall be assessed or imposed (i) a tax or
assessment on the Premises in lieu of or in addition to the Impositions payable
by the Mortgagor pursuant to this Section or (ii) a license fee, tax or
assessment imposed on the Mortgagee and measured by or based in whole or in part
upon the amount of the outstanding obligations secured hereby, then all such
taxes, assessments or fees shall be deemed to be included within the term
"Impositions" as defined in this Section, and the Mortgagor shall pay and
discharge the same as herein provided with respect to the payment of Impositions
or, at the option of the Mortgagee, all obligations secured hereby together with
all accrued interest thereon, shall immediately become due and payable. Anything
to the contrary herein notwithstanding, the Mortgagor shall have no obligation
to pay any franchise, estate, inheritance, income, excess profits or similar tax
levied on the Mortgagee or on the obligations secured hereby.
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The Mortgagor will pay all mortgage recording taxes payable
with respect to this Mortgage or other mortgage or transfer taxes due on account
of this Mortgage or the Note secured hereby.
The Mortgagor covenants to pay and hereby indemnifies the
Mortgagee from the payment of all documentary stamp taxes and intangible and all
other taxes (whether due and payable annually or otherwise) that may be levied
upon the holding of this indebtedness evidenced by the Note, the making or
recording of the Mortgage or any modification thereof or any evidence of
indebtedness secured hereby, or the transactions contemplated by this Mortgage,
including interest, penalties and costs. The Mortgagor agrees to pay the
Mortgagee's reasonable attorneys' fees and costs incurred in connection with any
inquiry from or assertion by any governmental authority that any such taxes have
not been paid promptly when due. In the event the Mortgagee becomes obligated to
pay any such taxes, penalties and costs, then the Mortgagee shall have the right
to accelerate the payment of all sums secured by this Mortgage and all principal
and interest accrued thereon shall, without notice, immediately become due and
payable at the option of the Mortgagee.
The Mortgagor will exhibit to the Mortgagee the original
receipts or other reasonably satisfactory proof of the payment of all
Impositions which may affect the Premises or any part thereof or the lien of the
Mortgage promptly following the last date on which each such Imposition is
payable hereunder.
1.10 DEPOSITS OF TAXES AND INSURANCE PREMIUMS. In order to
more fully protect the security of this Mortgage and the fulfillment by the
Mortgagor of the obligations and undertakings contained in Sections 1.04, 1.05
and 1.09 hereof and, solely as additional security to the Mortgagee, in addition
to the monthly payments of interest and principal as provided herein, the
Mortagee may require at any time and from time to time, for any or no reason,
that the Mortgagor pay to the Mortgagee or to its designated representative, to
be held in a commingled non-interest bearing escrow account, on the date set in
this Mortgage for the payment of principal and interest, an amount which shall
be equal to 1/12th of the annual Impositions that may become due during the year
and an amount which shall be equal to 1/12th of the annual insurance premiums
with respect to insurance coverage that the Mortgagor is required to maintain
pursuant to the provisions of this Mortgage (all as estimated by the Mortgagee,
or its representative). If the Mortgagee makes the aforesaid election, the
Mortgagor shall cause all bills, statements or other documents relating to
Impositions or the payment of insurance premiums to be sent or mailed directly
to the Mortgagee or its designated representative. Upon receipt of such bills,
statements or other documents, and, providing the Mortgagor has deposited
sufficient funds with the Mortgagee or its designated representative pursuant to
the provisions of this Section, the Mortgagee or its designated representative
shall pay such amounts as may be due thereunder out of the funds so deposited
with the Mortgagee or its designated representative. If the aforesaid sums are
found to be insufficient to fully pay the said Impositions or insurance premiums
when said items become due, the Mortgagor agrees to pay such deficiency
immediately upon demand, and in default thereof the Mortgagee may pay the same
and add the sum so paid to the principal sum secured by this Mortgage, and said
additional sum shall be payable to the Mortgagee on demand with interest thereon
at the maximum rate permitted by Florida law; also the Mortgagor agrees to pay
when due, all prior Impositions and insurance premiums for which provisions have
not been made hereinbefore and promptly to deliver the official receipt therefor
to the Mortgagee, and in default of payment thereof, the Mortgagee may pay the
same and add the amounts so paid to the principal sum secured by this Mortgage,
and said additional sums shall be payable to the Mortgagee on demand with
interest thereon at the maximum rate permitted by Florida law. The failure to
pay any of the aforesaid payments referred to in this Section shall after
fifteen (15) days' prior written notice and failure of the Mortgagor to cure
within such time, be deemed a default under the terms of this Mortgage, for
which the Mortgagee may, at its sole option, declare the entire unpaid balance
of principal then due and owing, to be immediately due and payable. Said
payments shall be paid to the Mortgagee until the Note is paid in full. The
Mortgagee under the provisions of this Mortgage may at any time, in its sole
discretion, apply any balance accumulated in the above funds as a credit against
any unpaid interest due under the Note and/or in reduction of the amount of
principal then remaining unpaid under the Note. Notwithstanding all of the
foregoing, nothing contained herein shall cause the Mortgagee or its designated
representative to be deemed a trustee of said funds or to be obligated to pay
any amounts in excess of the amounts of funds deposited with the Mortgagee or
its designated representative pursuant to this Section. The Mortgagee or its
designated representative may commingle said reserve with its own funds, and the
Mortgagor shall be entitled to no interest thereon. In the event that the
Mortgagee elects to permit the
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Mortgagor to pay Impositions directly, the Mortgagor shall cause the Mortgagee
to receive evidence of paid Impositions no later than March 20th of the year
following the year in which such Impositions were assessed.
It is the intention of the Mortgagor and the Mortgagee herein
that the payments as set forth in the paragraph above shall be sufficient so
that when such payments are due to any taxing authority or insurance carrier,
there will be sufficient money held by the Mortgagee to make such payments on
their due dates.
1.11 MAINTENANCE, REPAIRS, ALTERATIONS. The Mortgagor will
keep the Mortgaged Property, or cause the same to be kept, in good condition and
repair and fully protected from the elements to the satisfaction of the
Mortgagee; the Mortgagor will commit or permit no waste thereon and will do or
permit no act by which the Premises shall become less valuable; the Mortgagor
will not remove, demolish or structurally alter any of the Improvements (except
such alterations as may be required by laws, ordinances or regulations) without
the prior written permission of the Mortgagee; the Mortgagor will complete
promptly and in good and workmanlike manner any building or other Improvement
which may be constructed on the Premises and promptly restore in like manner any
Improvement which may be damaged or destroyed thereon and will pay when due all
claims for labor performed and materials furnished therefor; and the Mortgagor
will use and operate, and will require its lessees or licensees to use or
operate, the Premises in compliance with all applicable laws, ordinances,
regulations, covenants, conditions and restrictions, and with all applicable
requirements of any ground lease, lease or sublease now or hereafter affecting
the Premises or any part thereof. The Mortgagee and its representatives shall
have access to the Premises at all reasonable times to determine whether the
Mortgagor is complying with its obligations under this Mortgage, including, but
not limited to, those set out in this Section.
1.12 EMINENT DOMAIN. Should the Mortgaged Property, or any
part thereof or interest therein, be taken or damaged by reason of any public
use or improvement or condemnation proceeding, or in any other manner
("Condemnation"), or should the Mortgagor receive any notice or other
information regarding such Condemnation, the Mortgagor shall give prompt written
notice thereof to the Mortgagee.
(a) The Mortgagee shall be entitled, to all compensation,
awards and other payments or relief granted in connection with such
Condemnation, and shall be entitled, at its option, to commence, appear in its
own name any action or proceedings relating thereto. In the event of such an
appearance, the Mortgagor agrees to pay reasonable attorneys' fees incurred by
the Mortgagee. All such compensation, awards, damages, rights of action and
proceeds awarded to the Mortgagor (the "Proceeds") are hereby assigned to the
Mortgagee, and the Mortgagor agrees to execute such further assignments of the
Proceeds as the Mortgagee may require.
(b) In the event any portion of the Mortgaged Property is so
taken or damaged, the Mortgagee shall have the option in its sole and absolute
discretion, to apply all such Proceeds, after deducting therefrom all costs and
expenses (regardless of the particular nature thereof and whether incurred with
or without suit), including reasonable attorneys' fees, incurred by it in
connection with such Proceeds, upon any indebtedness secured hereby or to apply
all such Proceeds, after such deductions, to the restoration of the Premises
upon such reasonable conditions as the Mortgagee may determine. Such application
or release shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(c) Any amounts received by the Mortgagee hereunder (after
payment of any costs in connection with obtaining same) shall, if retained by
the Mortgagee, be applied in payment of any accrued interest and then in
reduction of the then-outstanding principal sum of the Note secured hereby
notwithstanding that the same may not then be due and payable. Any amount so
applied to principal shall be applied to the payment of installments of
principal on the Note in inverse order of their due dates.
1.13 ACTIONS AFFECTING THE SECURITY OF THIS MORTGAGE. The
Mortgagor shall appear in and contest any action or proceeding purporting to
affect the security hereof or the rights or powers of the Mortgagee. If any
action or proceeding affecting the Mortgaged Property or any part thereof shall
be commenced, to which action or proceeding the Mortgagee is made a party or in
which the right to use the Mortgage Property or any part thereof is threatened
or in which, in the opinion of the Mortgagee, it becomes
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necessary to defend or uphold the lien of this Mortgage, all sums paid by the
Mortgagee in connection therewith, including reasonable attorneys' fees, shall
be paid by the Mortgagor, together with interest thereon at the maximum rate
permitted by Florida law, and any such sum and the interest thereon shall be a
lien on the Premises, prior to any right or title to, interest in, or claim upon
the Premises attaching or accruing subsequent to or otherwise subordinate to the
lien of this Mortgage and shall be deemed to be secured by this Mortgage.
1.14 ACTIONS BY MORTGAGEE TO PRESERVE THE SECURITY OF THIS
MORTGAGE. If the Mortgagor fails to make any payment or to do any act as and in
the manner provided for in this Mortgage or the Note secured hereby, the
Mortgagee, in its own discretion, without obligation so to do, may make or do
the same in such manner and to such extent as the Mortgagee may deem necessary
to protect the security hereof. The Mortgagor will pay upon demand all expenses
incurred or paid by the Mortgagee (including, but not limited to, reasonable
counsel fees and court costs) on account of the exercise of any of the aforesaid
rights or privileges or on account of any litigation which may arise in
connection with this Mortgage or the Note or on account of any attempt, without
litigation, to enforce the terms of this Mortgage or said Note. In case the
Mortgaged Property or any part thereof shall be advertised for foreclosure sale
and not sold, the Mortgagor shall pay all costs in connection therewith.
In the event that the Mortgagee is called upon to pay any sums
of money to protect this Mortgage and the Note secured hereby as aforesaid, all
monies advanced or due hereunder shall become immediately due and payable,
together with interest at a rate equal to the Default Rate of the Note (as that
term is defined in the Note), computed from the date of such advance to the date
of the actual receipt of payment thereof by the Mortgagee and shall be deemed
part of the indebtedness secured by this Mortgage. All such payments to protect
this Mortgage and the Note shall be secured by the Mortgage, regardless of when
made, notwithstanding the limitation on the duration of the right to lien for
future advances expressed by Florida law or in the introductory provisions or in
Section 5.10 of this Mortgage.
The Mortgagor for itself and for all future owners of the
Premises herein described, agrees that in the event the Mortgagee shall obtain a
money judgment, in accordance with the terms and conditions contained in the
Note and/or Mortgage, then interest at a rate of interest equal to the Default
Rate (as that term is defined in the Note) shall be secured hereunder and shall
accrue and be due and payable on said money judgment from the date of entry
thereof, until the said judgment is paid in full.
In the event this Mortgage is placed in the hands of an
attorney for the collection of any sum payable hereunder, the Mortgagor agrees
to pay all costs of collection, including reasonable attorneys' fees, incurred
by the Mortgagee, either with or without the institution of any action or
proceeding, and in addition to all costs, disbursements and allowances provided
by law. All such costs so incurred shall be deemed to be secured by this
Mortgage.
1.15 SURVIVAL OF WARRANTIES. The Mortgagor covenants to fully
and faithfully satisfy and perform the obligations of the Mortgagor contained in
the Mortgagor's loan application and the Mortgagee's loan commitment, and any
such application and commitment between the Mortgagor and any assignee of the
Mortgagee, and each agreement of the Mortgagor incorporated by reference therein
or herein, and any modification or amendment thereof. All representations,
warranties and covenants of the Mortgagor contained therein or incorporated by
reference shall survive the close of escrow and funding of the loan evidenced by
the Note and shall remain continuing obligations, warranties and representations
of the Mortgagor during any time when any portion of the obligations secured by
this Mortgage remain outstanding.
1.16 ADDITIONAL SECURITY. In the event the Mortgagee at any
time holds additional security for any of the obligations secured hereby, it may
enforce the sale thereof or otherwise realize upon the same, at its option,
either before or concurrently herewith or after a sale is made hereunder.
1.17 INSPECTIONS. The Mortgagee, or its agents,
representatives or workmen, are authorized to enter at any reasonable time upon
or in any part of the Premises for the purpose of inspecting the same and for
the purpose of performing any of the acts it is authorized to perform under the
terms of this Mortgage. The Mortgagor agrees to reimburse the Mortgagee for
reasonable out-of-pocket expenses incurred for biannual property inspections
performed by independent third parties.
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1.18 LIENS. The Mortgagor shall pay and promptly discharge, at
the Mortgagor's cost and expense, all liens, encumbrances and charges upon the
Mortgaged Property or any part thereof or interest therein. The Mortgagor shall
have the right to contest in good faith the validity of any such lien,
encumbrance or charge, provided the Mortgagor shall first deposit with the
Mortgagee a bond or other security satisfactory to the Mortgagee in such amounts
as the Mortgagee shall reasonably require, but not more than the amount required
to legally bond off such claim, and provided further that the Mortgagor shall
thereafter diligently proceed to cause such lien, encumbrance or charge to be
removed and discharged. If the Mortgagor shall fail to discharge any such lien,
encumbrance or charge, then, in addition to any other right or remedy of the
Mortgagee, the Mortgagee may, but shall not be obligated to, discharge the same,
either by paying the amount claimed to be due, or by procuring the discharge of
such lien by depositing in court a bond for the amount claimed or otherwise
giving security for such claim, or in such manner as is or may be prescribed by
law. Any amount so paid by the Mortgagee shall, at the Mortgagee's option,
become immediately due and payable together with interest at a rate of interest
equal to the Default Rate (as that term is defined in the Note), and shall be
deemed part of the indebtedness secured by this Mortgage.
1.19 FUTURE MODIFICATIONS. The Mortgagor, for itself and for
all future owners of the Mortgaged Property, agrees that this Mortgage may be
modified, varied, extended, renewed or reinstated at any time by agreement
between the holder of this Mortgage and the Mortgagor or the then owner of the
Mortgaged Property, without notice to, or the consent of, any subordinate
mortgagee or lienor, and any such modification, variance, extension, renewal or
reinstatement shall be binding upon such subordinate mortgagee or lienor with
the same force and effect as if said subordinate mortgagee or lienor had
affirmatively consented thereto. This clause shall be self-operative, and no
further instrument of subordination shall be required from any subordinate
mortgagee or lienor.
1.20 CONTINUED OCCUPANCY. If at any time the use or occupancy
of any part of the Mortgaged Property as a laboratory shall, pursuant to any
zoning or other law, ordinance or regulation, be permitted only so long as such
use or occupancy shall continue, the Mortgagor will not cause or permit such use
or occupancy to be discontinued without the prior written consent of the
Mortgagee.
1.21 FINANCIAL STATEMENTS. The Mortgagor shall furnish to the
Mortgagee within ninety (90) days of the end of the Mortgagor's fiscal year, in
a form acceptable to the Mortgagee, annual certified audited financial
statements of the Mortgagor. All financial statements shall be in accordance
with generally accepted accounting practices.
1.22 ENVIRONMENTAL PROTECTION. The Mortgagor, its successors
and assigns, after reasonable inquiry, covenants, warrants and represents that,
a. No pollutants or other toxic or hazardous substances, as
defined under the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C.ss.9601 et. Seq., or any other federal or
Florida law, including any solid, liquid, gaseous, or thermal irritant or
contaminant, such as smoke, vapor, soot, fumes, acids, alkalis, chemicals or
waste (including materials to be recycled, reconditioned or reclaimed)
(collectively "Hazardous Materials") have been or shall be discharged,
disbursed, released, stored, treated, generated, disposed of, or allowed to
escape or migrate, or shall threaten to be injected, emptied, poured, leached,
or spilled (collectively referred to as the "release") on or from the Mortgaged
Property.
b. No asbestos or asbestos-containing materials have been or
will be (during the term of the Note) installed, used, incorporated into, placed
on, or disposed of on the Mortgaged Property.
c. No polychlorinated biphenyls ("PCBs") are or will be
(during the term of the Note) located on or in the Mortgaged Property, in the
form of electrical transformers, fluorescent light fixtures with ballasts,
cooling oils, or any other device or form.
d. No underground storage tanks are or will be (during the
term of the Note) located on the Mortgaged Property or were located on the
Mortgaged Property and subsequently removed or filled, except for the existing
storage tank which has been filed and rendered useless.
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e. No investigation, administrative order, consent order and
agreement, litigation, settlement, lien or encumbrance (collectively referred to
as the "action") with respect to Hazardous Materials is proposed, threatened,
anticipated or in existence with respect to the Mortgaged Property.
f. The Mortgaged Property and the Mortgagor's operations at
the Mortgaged Property are in compliance with all applicable federal, state and
local statutes, laws and regulations. No notice has been served on the
Mortgagor, or any subsidiary of the Mortgagor, from any entity, governmental
body, or individual claiming any violation of any law, regulation, ordinance or
code, or requiring compliance with any law, regulation, ordinance or code, or
demanding payment or contribution for environmental damage or injury to natural
resources. Copies of any such notices received after settlement shall be
forwarded to the Mortgagee within three (3) days of their receipt.
g. The Mortgagor has no knowledge of the release or threat of
release of any Hazardous Material from any property adjoining or in the
immediate vicinity of the Mortgaged Property.
h. No portion of the Mortgaged Property is a wetland or other
water of the United States subject to jurisdiction under Section 404 of the
Clean Water Act (33 U.S.C. ss. 1344) or any comparable state statute or local
ordinance or regulation defining or protecting wetlands or other special aquatic
areas.
i. There are no concentrations of radon or other radioactive
gases or materials in any buildings or structures on the Mortgaged Property that
exceed background ambient air levels.
j. To the best of the Mortgagor's knowledge, there have been
no complaints of illness or sickness alleged to result from conditions inside
any buildings or structures on the Mortgaged Property.
Failure to comply with any provision of this Section 1.22,
including failure to fully and accurately complete any schedule or attachment
described in this Section 1.22 shall be deemed to be an occurrence of default
under this Mortgage.
The liability of the Mortgagor to the Mortgagee under the
covenants of this Section 1.22 is not limited by any exculpatory provision in
the Note or in the other documents securing the Note. The Mortgagor's covenants,
warranties and representations made in this Section 1.22 shall survive any
termination or expiration of the documents securing the Note and/or the
repayment of the indebtedness evidenced by the Note including but not limited to
any foreclosure on this Mortgage or deed-in-lieu of foreclosure, it being
understood and agreed that the covenants, warranties and representations given
in this Section 1.22 are independent of the secured indebtedness and the
documents securing the Note.
1.23 VALUATION OF THE PREMISES. The value of the Premises
shall at all times during the term of this Mortgage equal at least One Million
and 00/100 Dollars ($1,000,000.00).
1.24 YEAR 2000. The Mortgagor shall take all action necessary
to assure that the Mortgagor's computer-based systems are able to operate and
effectively process data, including dates on and after January 1, 2000. At the
Mortgagee's request, the Mortgagor shall provide the Mortgagee with assurance
acceptable to the Mortgagee of the Mortgagor's Year 2000 compatibility.
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ARTICLE II
ASSIGNMENT OF LEASES, SUBLEASES,
RENTS, ISSUES AND PROFITS
2.01 ASSIGNMENT OF RENTS. The Mortgagor hereby assigns and
transfers to the Mortgagee all the leases, subleases, rents, issues and profits
of the Mortgaged Property, and hereby gives to and confers upon the Mortgagee
the right, power and authority to collect such rents, issues and profits. The
Mortgagor irrevocably appoints the Mortgagee its true and lawful
attorney-in-fact, at the option of the Mortgagee at any time and from time to
time, to demand, receive and enforce payment, to give receipts, releases and
satisfactions, and to xxx, in the name of the Mortgagor or the Mortgagee, for
all such rents, issues and profits and apply the same to the indebtedness
secured hereby; provided, however, that the Mortgagor shall have the right to
collect such rents, issues and profits (but not more than one (1) month in
advance) prior to or at any time there is not an event of default under this
Mortgage. The assignment of the leases, subleases, rents, issues and profits of
the Premises in this Article II is intended to be an absolute assignment from
the Mortgagor to the Mortgagee and not merely the passing of a security
interest. The leases, subleases, rents, issues and profits are hereby assigned
absolutely by the Mortgagor to the Mortgagee contingent only upon the occurrence
of an event of default under this Mortgage.
2.02 LEASE DEPOSITS AND OTHER CHARGES. All amounts paid to the
Mortgagor as security deposits, cancellation charges, premium or penalties shall
forthwith be and hereby are pledged to the Mortgagee as additional collateral
for the payment of the sums secured by this Mortgage. Upon default, the
Mortgagee shall be entitled to immediate delivery of said sums and the Mortgagee
may apply such deposits to the indebtedness secured hereby. The Mortgagor shall
comply in all respects with all laws and regulations affecting the collection,
holding and/or disbursement of security deposits.
2.03 COLLECTION UPON DEFAULT. Upon any event of default under
this Mortgage, the Mortgagee may, at any time without notice, either in person,
by agent or by a receiver appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of the Premises, or any part thereof, in its own name, xxx for
or otherwise collect such rents, issues and profits, including those past due
and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any indebtedness secured
hereby, and in such order as the Mortgagee may determine. The collection of such
rents, issues and profits, or the entering upon and taking possession of the
Premises, or the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done in response to
such default or pursuant to such notice of default. In addition (and not as an
election of remedies) upon the occurrence of a default, the Mortgagee may apply
for a court order requiring the Mortgagor to deposit all rents in the court
registry pursuant to Section 697.07, Florida Statutes. The Mortgagor hereby
consents to the entry of such an order upon the sworn EX PARTE motion of the
Mortgagee that a default has occurred hereunder.
2.04 RESTRICTION ON FURTHER ASSIGNMENTS, ETC. Except as
hereinafter specifically provided, the Mortgagor will not, without prior written
consent of the Mortgagee, assign the rents, issues or profits, or any part
thereof, from the Premises or any part thereof; and will not consent to the
modification, cancellation or surrender of any lease or sublease covering the
Premises. Any action of the Mortgagor in violation of the terms of this Section
shall be void as against the Mortgagee in addition to being a default under this
Mortgage.
The Mortgagor will not, without the consent of the Mortgagee,
consent to the cancellation or surrender of, or accept prepayment of rents,
issues or profits, other than rent paid at the signing of a lease or sublease,
under any lease or sublease now or hereafter covering the Premises or any part
thereof, nor modify any such lease or sublease and any such purported
assignment, cancellation, surrender, prepayment or modification made which does
not conform with the provisions hereof shall be void as against the Mortgagee.
The Mortgagor will, upon demand of the Mortgagee, enter into an agreement with
the Mortgagee with respect to the provisions contained in the preceding
provision regarding any lease or sublease covering said Premises or any part
thereof, and the Mortgagor hereby appoints the Mortgagee attorney-in-fact of the
Mortgagor to execute and deliver any such agreement on behalf of the Mortgagor
and deliver written notice thereof to the tenant to whose lease such agreement
relates.
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The Mortgagor agrees to furnish to the Mortgagee within ten
(10) days of the Mortgagee's request a copy of any modification of any lease
presently in effect and copies of all future leases affecting the Premises
covered by this Mortgage.
All leases or subleases hereafter entered into by the
Mortgagor with respect to the Premises or any part thereof, shall be subordinate
to the lien of this Mortgage unless expressly made superior to this Mortgage in
the manner hereinafter provided. At any time or times the Mortgagee may execute
and record in the appropriate Office of the County Clerk of the County where the
Premises are situated, a Notice of Subordination reciting that the lease or
leases therein described shall be superior to the lien of this Mortgage. From
and after the recordation of such Notice of Subordination, the lease or leases
therein described shall be superior to the lien of this Mortgage and shall not
be extinguished by any foreclosure sale hereunder.
2.05 NEW LEASES. The Mortgagor shall not lease any portion of
the Premises without the Mortgagee's prior written consent.
ARTICLE III
SECURITY AGREEMENT
3.01 CREATION OF SECURITY INTEREST. The Mortgagor hereby
grants to the Mortgagee a security interest in the Mortgagor's Personal Property
wherever located, including without limitation any and all property of similar
type or kind hereafter located on or at the Premises, and whether now or
hereafter existing or now owned or hereafter acquired or arising, for the
purpose of securing all obligations of the Mortgagor set forth in this Mortgage.
A security interest is also granted to the Mortgagee
in any sums held by the Mortgagee, or its loan servicing agent, pursuant to the
provisions of this Mortgage or other collateral agreements or any agreements
between the Mortgagor, the Mortgagee and any Escrow Agent holding loan proceeds
pending disbursements as provided in said agreements, where such sums are held
for the benefit of the Mortgagee.
3.02 WARRANTIES, REPRESENTATIONS AND COVENANTS OF MORTGAGOR.
The Mortgagor hereby warrants, represents and covenants as follows:
(a) Except for the security interest granted hereby, the
Mortgagor is, and as to portions of the Personal Property to be acquired after
the date hereof will be, the sole owner of the Personal Property, free from any
adverse lien, security interest, encumbrance or adverse claims thereon of any
kind whatsoever. The Mortgagor will notify the Mortgagee of, and will defend the
Personal Property against, all claims and demands of all persons at any time
claiming the same or any interest therein.
(b) The Mortgagor will not lease, sell, convey, encumber or in
any manner transfer the Personal Property without the prior written consent of
the Mortgagee, except to replace it with Personal Property of equal or greater
value.
(c) The Personal Property is not used or bought for personal,
family or household purposes.
(d) The Personal Property will be kept on or at the Premises
and the Mortgagor will not remove the Personal Property from the Premises
without the prior written consent of the Mortgagee, except such portions or
items of Personal Property which are consumed or worn out in ordinary usage, all
of which shall be promptly replaced by the Mortgagor with new items of equal or
greater quality.
(e) The Mortgagor maintains a place of business in the State
of Florida, and the Mortgagor will immediately notify the Mortgagee in writing
of any change in its place of business as set forth in the beginning of this
Mortgage.
(f) At the request of the Mortgagee, the Mortgagor will join
the Mortgagee in executing one or more financing statements and renewals and
amendments thereof pursuant to the Uniform
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Commercial Code of Florida in form satisfactory to the Mortgagee, and will pay
the cost of filing the same in all public offices wherever filing is deemed by
the Mortgagee to be necessary or desirable.
(g) All covenants and obligations of the Mortgagor contained
herein relating to the Premises shall be deemed to apply to the Personal
Property whether or not expressly referred to herein.
(h) This Mortgage constitutes a Security Agreement as that
term is used in the Uniform Commercial Code of Florida.
(i) The Mortgagor is financially solvent at the time of
execution, recording of this Mortgage and disbursement of loan proceeds, and
further represents it has committed no act of bankruptcy nor has any proceeding
been commenced by or against the Mortgagor under any bankruptcy or insolvency
laws, and that there has been no material adverse change in the Mortgagor's
business or financial condition.
(j) The Mortgagor shall comply, and shall ensure that the
Premises comply, at all times while this Mortgage is in effect with all laws,
ordinances, rules and regulations.
3.03 MORTGAGOR'S CHANGE OF NAME. In the event of any change in
name or identity of the Mortgagor which is authorized hereunder, the Mortgagor
shall promptly execute such Uniform Commercial Code forms as are necessary to
maintain the priority of the Mortgagee's lien upon any Personal Property,
including future replacement thereof, which serves as collateral under this
agreement, and shall pay all expenses in connection with the filing and
recording thereof.
3.04 GRANT OF POWER OF ATTORNEY. Mortgagor hereby appoints any
officer or agent of Mortgagee as Mortgagor's true and lawful attorney-in-fact,
after the occurrence of an event of default, with power to endorse the name of
Mortgagor upon any notices, checks, drafts, money orders or other instruments of
payment or Personal Property which may come into possession of Mortgagee; to
sign and endorse the name of Mortgagor upon any invoices, freight or express
bills, bills of lading, stored or warehouse receipts, drafts against account
debtors, assignments, verifications and notices in connection with accounts; and
to give written notice to such office and officials of the United States Postal
Service to effect such change or changes of address so that all mail addressed
to Mortgagor may be delivered directly to Mortgagee (Mortgagee will return all
mail not related to the Note, this Mortgage or the Personal Property); granting
unto Mortgagor's said attorney full power to do any and all things necessary to
be done with respect to the above transaction as fully and effectively as
Mortgagor might or could do so, and hereby ratifying all its said attorney shall
lawfully do or cause to be done by virtue hereof. This power of attorney shall
be irrevocable for the term of this Mortgage and all transactions hereunder.
ARTICLE IV
REMEDIES UPON DEFAULT
4.01 EVENTS OF DEFAULT. Any one or more of the following shall
constitute a default ("Default") under this Mortgage and the Note hereby if not
cured within the following time periods: (i) upon occurrence as to (c), (g),
(h), (j), (k) and (o), (ii) ten (10) days after written notice is given by the
Mortgagee as to (a) and (b), and (iii) thirty (30) days after written notice is
given by the Mortgagee as to items (d) through (f), (i), (l), (m), (n), (p), (q)
and (r), unless otherwise specifically provided in this Mortgage:
(a) Failure of the Mortgagor to make one or more payments
required by the Note, this Mortgage, or any other document related to the Note
or this Mortgage.
(b) Failure of the Mortgagor to pay the amount of any costs,
expenses or fees (including attorneys fees and expenses at the pre-trial, trial
and appellate levels) of the Mortgagee, with interest thereon, as required by
any provision of this Mortgage or the Note.
(c) Failure to exhibit to the Mortgagee, within ten (10) days
after demand, receipts showing payment of all taxes, water rates, sewer rents
and assessments.
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(d) Except as hereinbefore permitted, the actual or threatened
alteration, demolition or removal of any building on the Premises without the
written consent of the Mortgagee.
(e) If the Improvements on said Premises are not maintained in
good repair pursuant to Section 1.11.
(f) Failure to comply with any requirements or order or notice
of violation of law or ordinance issued by any governmental department claiming
jurisdiction over the Mortgaged Property within thirty (30) days from the
issuance thereof.
(g) The institution of any bankruptcy, reorganization or
insolvency proceedings against the then-owner or the Mortgagor in possession of
the Mortgage Property or the appointment of a receiver or a similar official
with respect to all or a substantial part of the properties of the then-owner or
the Mortgagor in possession of the Mortgaged Property and a failure to have such
proceedings dismissed or such appointment vacated within a period of thirty (30)
days.
(h) The institution of any voluntary bankruptcy,
reorganization or insolvency proceedings by the then owner or the Mortgagor in
possession of the Mortgaged Property or a Guarantor or the appointment of a
receiver or a similar official with respect to all or a substantial part of the
properties of the then owner or the Mortgagor in possession of the Mortgaged
Property or a Guarantor at the instance of the then owner or the Mortgagor in
possession of the Mortgaged Property or a Guarantor.
(i) Failure of the Mortgagor to comply with or perform any
other warranty, covenant or agreement contained herein, in the Note, in that
certain Security Agreement dated of even date herewith between Mortgagor and
Vira-Tech, Inc., both as debtors, and Mortgagee, as secured party, in that
certain Stock Pledge Agreement dated of even date herewith between Xxxxxx X.
Xxxxxx, as pledgor, and Mortgagee, as pledgee, or in any other instrument
securing, or relating to, the Note.
(j) The transfer, sale or conveyance of legal or equitable
title to the Premises or any interest therein without the prior written consent
of the Mortgagee.
(k) The further encumbrancing of the Premises without the
Mortgagee's prior written consent.
(l) Any default occurring under or any misrepresentation
contained in the Hazardous Substance Covenants, Warranties and Representations
contained in Section 1.22 hereof, or the Note secured hereby or that certain
Assignment of Rents and Leases made and executed by the Mortgagor in connection
herewith.
(m) Failure of the Mortgagor to pay any other debts as they
come due.
(n) Failure of the Mortgagor to comply with or perform any
covenant or agreement required by any other lender to the Mortgagor.
(o) Any representation warranty, statement or certificate in
any loan document is determined by the Mortgagee to be untrue.
(p) Failure of the Mortgagor to satisfy or discharge any
judgment against the Mortgagor within thirty (30) days after the entry thereof.
(q) The occurrence of a material adverse change in the
business prospects or financial condition of the Mortgagor as determined by the
Mortgagee.
(r) An event of default has occurred and is continuing under
any Guaranty executed in connection with this Mortgage and the Note.
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4.02 ACCELERATION UPON DEFAULT, ADDITIONAL REMEDIES. In the
event that one or more defaults as above provided shall occur, the remedies
available to the Mortgagee shall include, but not necessarily be limited to, any
one or more of the following:
(a) The Mortgagee may declare the entire unpaid balance of the
Note and all accrued interest thereon immediately due and payable without
further notice.
(b) The Mortgagee may take immediate possession of the
Mortgaged Property or any part thereof (which the Mortgagor agrees to surrender
to the Mortgagee) and manage, control or lease the same to such person or
persons and at such rental as it may deem proper and collect all the rents,
issues and profits therefrom, including those past due as well as those
thereafter accruing, with the right in the Mortgagee to cancel any lease or
sublease for any cause which would entitle the Mortgagor to cancel the same; to
make such expenditures for maintenance, repairs and costs of operation as it may
deem advisable; and after deducting the cost thereof and a commission of five
percent (5%) upon the gross amounts of rents collected, to apply the residue to
the payment of any sums which are unpaid hereunder or under the Note. The taking
of possession under this paragraph shall not prevent concurrent or later
proceedings for the foreclosure sale of the Premises as provided elsewhere
herein.
(c) The Mortgagee may apply, on EX PARTE motion, to any court
of competent jurisdiction for the appointment of a receiver to take charge of,
manage, preserve, protect, complete construction of and operate the Premises and
any business or businesses located thereon, to collect rents, issues and profits
and income therefrom; to make all necessary and needed repairs to the Premises;
to pay all taxes and assessments against the Premises and insurance premiums for
insurance thereon; and after the payment of the expenses of the receivership,
including reasonable attorneys' fees to the Mortgagee's attorney, and after
compensation to the receiver for management and completion of the Premises, to
apply the net proceeds derived therefrom in reduction of the indebtedness
secured hereby or in such manner as such court shall direct. The appointment of
such receiver shall be of strict right to the Mortgagee, regardless of the value
of the security for the indebtedness secured hereby or of the solvency of any
party primarily or secondarily bound for the payment of such indebtedness. All
expenses, fees and compensation incurred pursuant to a receivership approved by
such court, shall be secured by the lien of this Mortgage until paid. The
receiver and the receiver's agents shall be entitled to enter upon and take
possession of any and all of the Premises, together with any and all businesses
conducted thereon and all business assets used in conjunction therewith or
thereon, or any part or parts thereof, and operate and conduct such business or
businesses to the same extent and in the same manner as the Mortgagor might
lawfully do. The receiver, personally or through his agents, may exclude the
Mortgagor wholly from the Premises, and have, hold, use, operate, manage and
control the same and each and every part thereof; and may in the name of the
Mortgagor exercise all of the Mortgagor's rights and powers and maintain,
restore, insure and keep insured, the Premises as the receiver may deem
judicious. Such receivership shall, at the option of the Mortgagee, continue
until full payment of all sums secured hereby, or until title to the Premises
shall have passed by foreclosure sale under this Mortgage.
(d) The Mortgagee shall have the right to foreclose this
Mortgage and in case of sale in action or proceeding to foreclose this Mortgage,
the Mortgagee shall have the right to sell the Premises covered hereby in parts
or as an entirety. In addition, the Mortgagee shall have the right to repossess,
take possession and sell any or all of the Personal Property subject to this
Mortgage and security agreement and to apply the proceeds in accordance with
this Agreement. It is intended hereby to give to the Mortgagee the widest
possible discretion permitted by law with respect to all aspects of any such
sale or sales.
(e) Without declaring the entire unpaid principal balance due,
the Mortgagee may foreclose only as to the sum past due, without injury to this
Mortgage or the displacement or impairment of the remainder of the lien thereof,
and at such foreclosure sale the Premises shall be sold subject to all remaining
items of indebtedness; and the Mortgagee may again foreclose, in the same
manner, as often as there may be any sum past due.
(f) The Mortgagor hereby waives any appraisement before sale
of any portion of the Premises, commonly known as appraisement laws; the benefit
of any laws now or hereafter enacted which in any way may extend the time for
enforcement of the collection of the indebtedness secured hereby or
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creating or extending any period of redemption from any sale made in collecting
said indebtedness, commonly known as stay laws and redemption laws, all rights
of marshalling in the event of foreclosure of any lien or security interest
created by this Mortgage.
4.03 ADDITIONAL PROVISIONS. The Mortgagor expressly agrees, on
behalf of itself, its successors and assigns and any future owner of the
Premises, or any part thereof or interest therein, as follows:
(a) All remedies available to the Mortgagee with respect to
this Mortgage shall be cumulative and may be pursued concurrently or
successively. There are no conditions precedent to the enforcement by the
Mortgagee of any of its remedies. No delay by the Mortgagee in exercising any
such remedy shall operate as a waiver thereof or preclude the exercise thereof
during the continuance of that or any subsequent default.
(b) The obtaining of a judgment or decree on the Note, whether
in the State of Florida or elsewhere, shall not in any manner affect the lien of
this Mortgage upon the Premises covered hereby, and any judgment or decree so
obtained shall be secured hereby to the same extent as said Note is now secured.
(c) In event of any foreclosure sale hereunder, all net
proceeds shall be available for application to the indebtedness hereby secured
whether or not such proceeds may exceed the value of the Premises for
recordation tax, mortgage tax, insurance or other purposes.
(d) The Mortgagee shall have the right to set off any and all
sums owed to the Mortgagor by the Mortgagee in any capacity (whether or not then
due) against all amounts due under the Note and/or against any other liabilities
of the Mortgagor to the Mortgagee.
(e) The only limitation upon the foregoing agreements as to
the exercise of the Mortgagee's remedies is that there shall be but one full and
complete satisfaction of the indebtedness secured hereby.
4.04 REMEDIES NOT EXCLUSIVE. The Mortgagee shall be entitled
to enforce payment and performance of any indebtedness or obligations secured
hereby and to exercise all rights and powers under this Mortgage or the Note
secured hereby or under any other agreement or any laws now or hereafter in
force, notwithstanding some or all of the said indebtedness and obligations
secured hereby may now or hereafter be otherwise secured, whether by mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of
this Mortgage nor its enforcement shall prejudice or in any manner affect the
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by the Mortgagee, it being agreed that the Mortgagee shall be entitled to
enforce this Mortgage and any other security now or hereafter held by the
Mortgagee in such order and manner as the Mortgagee may in its absolute
discretion determine. No remedy herein conferred upon or reserved to the
Mortgagee is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given to the Mortgagee or to which
it may be otherwise entitled, may be exercised, concurrently or independently
from time to time and as often as may be deemed expedient by the Mortgagee and
it may pursue inconsistent remedies.
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ARTICLE V
MISCELLANEOUS
5.01 EXISTENCE. If at any time the Premises shall be owned or
held by a person other than a natural person (such as a partnership or a
corporation), such person and any other entity which is a general partner of
that person (if applicable) shall at all times maintain its existence and shall
be fully authorized to do business in the State of Florida and shall maintain in
the State of Florida a duly authorized registered agent and office for service
of process. Failure to comply with such obligations shall, in addition to being
a default under this Mortgage, authorize the Mortgagee, as attorney-in-fact of
the Mortgagor, to appoint any person as agent of the Mortgagor for the service
of process in any proceeding or proceedings concerning this Mortgage or the
Note. Within ninety (90) days after the expiration of the time for filing its
annual report and the payment of appropriate taxes in the State of Florida, the
Mortgagor will furnish to the Mortgagee certificates of good standing or other
evidence satisfactory to the Mortgagee to show compliance with the provisions of
this Section 5.01.
5.02 STATEMENTS BY MORTGAGOR. The Mortgagor, within three (3)
days after request in person or within ten (10) days after request by mail, will
furnish to the Mortgagee or any person, firm or corporation designated by the
Mortgagee, a duly acknowledged written statement setting forth the amount of the
debt secured by this Mortgage, and stating either that no offsets or defenses
exist against such debt, or, if such offsets or defense are alleged to exist,
full information with respect to such alleged offsets and/or defenses.
5.03 SUCCESSORS AND ASSIGNS. The provisions hereof shall be
binding upon and shall inure to the benefit of the Mortgagor, its successors and
assigns (including without limitation subsequent owners of the Premises or the
leasehold estate of the Premises or any part thereof); shall be binding upon and
shall inure to the benefit of the Mortgagee, its successors and assigns and any
future holder of the Note hereby secured, and any successors or assigns of any
future holder of the Note. In the event the ownership of the Premises or any
leasehold estate that may be covered by this Mortgage, becomes vested in a
person other than the Mortgagor, the Mortgagee may, without notice to the
Mortgagor, deal with such successor or successors in interest with reference to
this instrument and the debt hereby secured in the same manner as with the
Mortgagor, and may alter the interest rate and/or alter or extend the terms of
payment of the debt secured hereby without notice to the Mortgagor and such
action shall in no way affect the liability of the Mortgagor hereunder or under
the Note hereby secured or the lien or priority of this Mortgage with respect to
any part of the Mortgaged Property covered hereby.
5.04 RESTRICTION ON TRANSFER. The Mortgagor shall not, without
the prior written consent of the Mortgagee, transfer, sell, convey or encumber
legal or equitable title to the Mortgaged Property or any interest therein. The
Mortgagee reserves the right, in its sole discretion, to accelerate the loan
upon such transfer, sale, conveyance or encumbrance. Upon such acceleration, the
entire principal balance plus all accrued interest thereon shall be due and
payable.
5.05 NOTICES. All notices, demands and requests given by
either party hereto to the other party shall be in writing. All notices, demands
and requests by the Mortgagee to the Mortgagor shall be deemed to have been
properly given if sent by United States registered or certified mail, postage
prepaid, addressed to the Mortgagor at the address indicated on Page 1 hereof,
or at such other address as the Mortgagor may from time to time designate by
written notice to the Mortgagee, given as herein required. All notices, demands
and requests by the Mortgagor to the Mortgagee shall be deemed to have been
properly given if sent by United States registered or certified mail, postage
prepaid, addressed to the Mortgagee as follows:
Equitable Bank
000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
With a Copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxx, P.A.
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
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Xxxx Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as the Mortgagee may from time to time designate by
written notice to the Mortgagor given as herein required. Notices, demands and
requests given in the manner aforesaid shall be deemed sufficiently served or
given for all purposes hereunder at the time such notice, demand or request
shall be deposited in any post office or branch post office regularly maintained
by the United States Government.
The Mortgagor shall deliver to the Mortgagee, promptly upon
receipt of same, copies of all notices, certificates, documents and instruments
received by it which materially affect any part of the Premises covered hereby,
including, without limitation, notices from any lessee, sublessee claiming that
the Mortgagor is in default under any terms of any lease, sublease.
5.06 MODIFICATIONS IN WRITING. This Mortgage may not be
changed, terminated or modified orally or in any other manner than by an
instrument in writing signed by the party against whom enforcement is sought.
5.07 CAPTIONS. The captions or headings at the beginning of
each Section hereof are for the convenience of the parties and are not a part of
this Mortgage.
5.08 INVALIDITY OF CERTAIN PROVISIONS. If the lien of this
Mortgage is invalid or unenforceable as to any part of the debt, or if the lien
is invalid or unenforceable as to any part of the Premises, the unsecured
portion of the debt shall be completely paid prior to the payment of the secured
portion of the debt, and all payments made on the debt, whether voluntary or
otherwise, shall be considered to have been first paid on and applied to the
full payment of that portion of the debt which is not secured or fully secured
by the lien of this Mortgage.
5.09 NO MERGER. If both the lessor's and lessee's estates
under any lease or any portion thereof which constitutes a part of the Mortgaged
Property shall at any time become vested in one owner, this Mortgage and the
lien created hereby shall not be destroyed or terminated by application of the
doctrine of merger and, in such event, the Mortgagee shall continue to have and
enjoy all of the rights and privileges of the Mortgagee as to the separate
estates. In addition, upon the foreclosure of the lien created by this Mortgage
on the Premises pursuant to the provisions hereof, any leases or subleases then
existing and created by the Mortgagor shall not be destroyed or terminated by
application of the law of merger or as a matter of law or as a result of such
foreclosure unless the Mortgagee or any purchaser at any such foreclosure sale
shall so elect. No act by or on behalf of the Mortgagee or any such purchaser
shall constitute a termination of any lease or sublease unless the Mortgagee or
such purchaser shall give written notice thereof to such tenant or subtenants.
5.10 FUTURE ADVANCES. The Mortgagee may, from time to time, at
its option, make further advances to the Mortgagor which shall be secured by the
lien of this Mortgage; provided, however, that the unpaid principal balance so
secured by this Mortgage at any one time shall not exceed twice the amount of
the original indebtedness secured hereunder, plus interest thereon, and plus any
disbursements made by the Mortgagee for the payment of taxes, levies and
insurance premiums on the Mortgaged Property, together with interest thereon.
All additional or further monies which may be advanced by the Mortgagee to the
Mortgagor (or any one of them if there be more than one), after the date hereof,
shall at the option of the Mortgagee be evidenced by a note or notes executed by
the Mortgagor (or any one of them if there be more than one) in favor of the
Mortgagee, bearing such rate of interest and with such maturities as shall be
determined from time to time, but any and all such future advances secured by
this Mortgage shall be made not more than twenty (20) years after the date
hereof. All such notes shall be of equal dignity, and a default in the payment
of any one note shall constitute a default in payment of all other notes, at the
option of the Mortgagee. Each future advance shall be an integral part of the
mortgage obligation and shall be secured by the lien of this Mortgage as fully
and to the same extent as though the same were a part of the original
indebtedness. However, nothing contained herein shall be deemed an obligation on
the part of the Mortgagee to make any future advances. Provided further, that
any payments made by the Mortgagee for taxes and insurance or for any other
purpose to preserve the security of the Note and this Mortgage, as deemed
necessary by the Mortgagee, shall remain secured by this Mortgage
notwithstanding any other
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provisions in this instrument or any provisions of Florida law limiting future
advances to a period of twenty (20) years.
5.11 GOVERNING LAW AND CONSTRUCTION OF CLAUSES. This Mortgage
shall be governed and construed by the laws of the State of Florida. No act of
the Mortgagee shall be construed as an election to proceed under any one
provision of the Mortgage or of the applicable statutes of the State of Florida
to the exclusion of any other such provision, anything herein or otherwise to
the contrary notwithstanding.
5.12 DEFAULT RATE. While in default, any sums due hereunder or
under the Note shall bear interest at the maximum rate permissible under Florida
law (the "Default Rate").
5.13 TIME OF THE ESSENCE. Time shall be of the essence of each
and every covenant and promise contained in this Mortgage and every other
instrument securing the repayment of the Note.
5.14 EXTENSIONS. The granting of any extension or extensions
of time of payment of the Note either to the Mortgagee or any other person, or
taking of other or additional security for payment therefor, or waiver of or
failure to exercise any right to mature the whole debt under any covenant or
stipulation herein contained, shall not in anywise affect this Mortgage or the
rights of the Mortgagee, its successors or assigns hereunder or operate as a
release from any personal liability upon the Note or under any covenant or
stipulation herein contained.
5.15 WAIVER OF JURY TRIAL. THE MORTGAGEE AND THE MORTGAGOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MORTGAGE OR ANY DOCUMENT EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THE MORTGAGOR ACKNOWLEDGES THAT
THIS MUTUAL WAIVER CONSTITUTES A MATERIAL INDUCEMENT TO THE MORTGAGEE TO ENTER
INTO THIS MORTGAGE.
IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand
and seal all done as of the day and year first hereinbefore written.
Signed, sealed and delivered VIRAGEN, INC.
in the presence of:
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx, Executive Vice President
-------------------------
Address: 000 Xxxxxxxxx 00xx Xxxxxx, #000
Xxxxxxxxxx, XX 00000
Name:
-------------------------
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this ___ day of
November, 1999, by Xxxxxx X. Xxxxxx, as Executive Vice President of VIRAGEN,
INC., who is personally known to me or has produced a driver's license or
_______________ as identification.
------------------------------------
NOTARY PUBLIC
My Commission Expires:
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EXHIBIT "1"
-----------
Legal Description
Xxxx 00, 00, 00 xxx 00 xx Xxxxx 5 of PALMETTO - I-75 INDUSTRIAL CENTER
SECTION ONE, according to the Plat thereof recorded in Plat Book 116,
Page 35 of the Public Records of Miami-Dade County, Florida.
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