EXHIBIT 10.27
Record and return to:
Principal Mutual Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
ATTN: Xxxxxxx Xxxxx
MORTGAGE AND SECURITY AGREEMENT
D-751848
THIS MORTGAGE AND SECURITY AGREEMENT made as of February 27, 1998, by and
between EQUITY ONE (COMMONWEALTH) 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 Three Million Three Hundred Thousand and 00/100 Dollars
($3,300,000.00) evidenced by Mortgagor's promissory note (herein called the
Note) of even date herewith, made payable and delivered to Mortgagee, in which
Note 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 the Note provided,
until the entire principal and accrued interest have been paid, but in any
event, the unpaid balance (if any) remaining due on the Note shall be due and
payable on February 15, 2018 ("Maturity Date").
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 Xxxxx, 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."
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).
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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.
TO HAVE AND TO HOLD the same unto the Mortgagee, its successors and assigns
forever, for the purposes and uses herein set forth.
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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 that Phase I Environmental Report
conducted by Aerostar Environmental Services, Inc. and dated August 12, 1997
(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 (33U.S.C. ss.1251 etseq.); (x) the
Resource Conservation and Recovery Act, as amended (42U.S.C. ss.6901
etseq.); (y) the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (42U.S.C. ss.9601 etseq.); or (z) the Federal
Clean Air Act, as amended (42U.S.C. ss.7401 etseq.). "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.
MORTGAGOR COVENANTS AND AGREES AS FOLLOWS:
1. Mortgagor shall
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(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;
(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
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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.
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:
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(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;
(s) pay or cause any lessee to pay all utilities on the Premises prior to
becoming delinquent;
(t) not amend, alter, modify or terminate that certain Construction,
Operation and Reciprocal Easement Agreement recorded July 26, 1983 in
Official Records Book 5678, Page 652; as
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amended or affected by Acknowledgment recorded July 3, 1984 in Official
Records Book 5921, Page 866; Amendment and Supplemental Agreements
recorded July 26, 1983 in Official Records Book 5678, Page 694 and June
26, 1991 in Official Records Book 7130, Page 1963 without Mortgagee's
prior written consent;
(u) provide Mortgagee with the results of annual tests of the ground water
monitoring well located on the Premises (which tests and results shall
be performed and provided by Mortgagee's preapproved consultant at
Mortgagor's expense) beginning March 15, 1999 and annually thereafter
throughout the term of the Note;
(v) upon Mortgagee's request, terminate the lease of any tenant who is
operating a dry cleaning plant on site, in the event that the levels of
contamination from the dry cleaning operations on the Premises increase
(which shall be determined by Mortgagee from the results of the annual
testing of the ground monitoring well);
(w) condition any approval of an assignment and subletting of the lease
between Mortgagor and Xxxxxxx X. Xxxxxx d/b/a Jet Dry Cleaners upon the
requirement that dry cleaning operations cease on the Premises occupied
by said tenant and its assigns and/or sublessees; and
(x) provide Mortgagee with a copy of the final, unconditional Certificate
of Occupancy for the expanded Xxxx-Xxxxx Stores, Inc. space by no later
then May 1, 1998 (which date may be extended subject to delays in
completion of the expansion due to Xxxx-Xxxxx Stores, Inc.'s completion
of its tenant improvements).
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
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(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 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
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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 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
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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.
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
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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
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;
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(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 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
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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.
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;
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(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) 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
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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.
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.
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(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 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
-17-
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
(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:
-18-
(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.
*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, 2008 *
March 15, 2008 to February 15, 2018 *
*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 the end of the applicable
prepayment period.
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,
-19-
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 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;
-20-
(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 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;
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(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
(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,
-22-
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 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
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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 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
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herein to the exclusion of any other provision or to proceed
against one portion of the Premises to the exclusion of any other
portion.
(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.
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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, 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
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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,
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-751848, 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 protanto 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
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paragraph, the liability of Mortgagor under the Loan Documents
shall be limited to the interest 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; or
(iii) Mortgagor gives any consent, exercises any right or option
or agrees to any changes to the lease with Xxxx-Xxxxx Stores,
Inc. dated June 4, 1982 as amended by Memorandum of Lease
dated June 3, 1983; Amendment to Lease dated June 3, 1983;
Supplemental Memorandum of Lease dated August 22, 1983; and
Amended and Restated Lease dated July 14, 1997, including but
not limited to any modification, amendment, termination,
renewal and/or extension without obtaining Mortgagee's prior
written consent.
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
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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.
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 (COMMONWEALTH) INC.,
a Florida corporation
By /s/ XXX X. XXXXXX
-----------------
Print Name: Xxx X. Xxxxxx
By /s/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
By /s/ XXXX X. XXXXXX Title: Vice President
------------------
Print Name: Xxxx X. Xxxxxx
