EXHIBIT 10.31
CONSOLIDATED, AMENDED AND RESTATED
FLORIDA MORTGAGE AND SECURITY AGREEMENT
THIS CONSOLIDATED, AMENDED AND RESTATED FLORIDA MORTGAGE AND SECURITY
AGREEMENT (the "Mortgage"), made and entered into as of this 2nd day of June,
1998, by and between Orange-co of Florida, Inc., a Florida corporation having
a mailing address at 0000 X.X. Xxxxxxx 00 Xxxxx, Xxxxxx, Xxxxxxx 00000,
hereinafter referred to as the "Mortgagor," which term shall be construed to
include the successors and assigns of the Mortgagor, all of whom shall be
bound hereby, and Xxxx Xxxxxxx Mutual Life Insurance Company, a Massachusetts
corporation, having an address of X.X. Xxx 000, Xxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, hereinafter referred to as the "Mortgagee," and the
successors and assigns of the Mortgagee.
W I T N E S S E T H:
WHEREAS, the Mortgagee is presently the owner and holder of the following
described instruments, as well as other loan documents executed in connection
with a mortgage loan (the "Loan Documents") which encumbers certain personal
property and real property situate in Polk County, Florida, to wit:
1. That certain Renewal Promissory Note dated November 8, 1979 (the
"1979 Renewal Note"), representing an indebtedness in the original principal
amount of Sixteen Million Three Hundred Thousand and No/100 Dollars
($16,300,000.00), collateralized by that certain Loan Modification Agreement,
Notice of Advance and Restated Florida Mortgage and Security Agreement entered
into by and between Mortgagor and Mortgagee as of the 8th day of
NOTA BENE: State of Florida Documentary Stamp Tax in the amount required by
law has been paid and the documentary stamps obtained upon such
payment have been affixed to that certain Loan Modification
Agreement, Notice of Advance and Restated Florida Mortgage and
Security Agreement dated the 8th day of November, 1979 and
recorded in Official Records Book 1911, Page 1040, that certain
Future Advance Agreement dated as of April 21, 1993 and recorded
in Official Records Book 3226, Page 971, and that certain
Florida Second Mortgage and Security Agreement dated August 13,
1996 and recorded in Official Records Book 3718, Page 176, all
as recorded in the Public Records of Polk County, Florida, as well
as that certain Florida Mortgage and Security Agreement of even
date herewith given by the Mortgagor to Mortgagee, recorded or to
be recorded in the Public Records of Polk County, Florida.
November, 1979 and recorded in Official Records Book 1911, Page 1040,
Public Records of Polk County, Florida, and amended and restated pursuant
to that certain Amended and Restated Florida Mortgage & Security Agreement
and Spreader Agreement entered into by and between Mortgagor and Mortgagee
as of the 21st day of April, 1993 and recorded in Official Records Book 3226,
Page 937, Public Records of Polk County, Florida (collectively, the
"Amended and Restated Mortgage").
2. That certain Future Advance Promissory Note
dated April 21, 1993 (the "1993 Future Advance Note"), executed by
Mortgagor in favor of Mortgagee in the original principal amount of
Eight Million Seven Hundred Forty-three Thousand One Hundred
Ninety-one and No/100 Dollars ($8,743,191.00), collateralized
by that certain Future Advance Agreement entered into by and
between Mortgagor and Mortgagee as of the 21st day of April, 1993
and recorded in Official Records Book 3226, Page 971 of the Public
Records of Polk County, Florida (the "Future Advance Agreement").
3. That certain Renewal Note (the "1993 Renewal Note") dated as
of April 21, 1993 and executed by Mortgagor in favor of Mortgagee in the
original amount of $12,000,000.00 which combines and renews that certain
1979 Renewal Note and the 1993 Future Advance Note, and the 1993 Renewal
Note is collateralized by the Amended and Restated Mortgage and the Future
Advance Agreement.
4. That certain Promissory Note (the "1996 Promissory Note")
dated August 13, 1996, executed by Mortgagor in favor of Mortgagee in the
original principal amount of Ten Million and No/100 Dollars ($10,000,000.00),
collateralized by that certain Florida Second Mortgage and Security Agreement
(the "Second Mortgage") executed by Mortgagor in favor of Mortgagee on August
13, 1996 and recorded in Official Records Book 3718, Page 176, Public
Records of Polk County, Florida.
5. That certain Consolidated, Amended and Restated Florida Mortgage
and Security Agreement (the "First Consolidated Mortgage") executed by
Mortgagor in favor of Mortgagee on August 13, 1996 and recorded in Official
Records Book 3718, Page 198, of the Public Records of Polk County, Florida,
which consolidates the Amended and Restated Mortgage, the Future Advance
Agreement and the Second Mortgage, as well as to modify and restate the
terms and conditions of said documents, as set forth in the First Consolidated
Mortgage, and the 1993 Renewal Note and the 1996 Promissory Note are
collateralized by the First Consolidated Mortgage.
6. That certain Demand Promissory Note (the "Demand Note") dated
June 2, 1998, executed by Mortgagor in favor of Mortgagee in the original
principal amount of Nine Million and No/100 Dollars ($9,000,00.00), which is
collateralized by that certain Florida Mortgage and Security Agreement
(the "Demand Note Mortgage") executed by Mortgagor in favor of Mortgagee
on June 2, 1998 and recorded under Clerk's File No. 082681, Public Records
of Polk County, Florida.
7. That certain Renewal Note (the "1998 Renewal Note") dated
June 2, 1998 executed by the Mortgagor in favor of Mortgagee in the original
principal amount of Fifteen Million and No/100 Dollars ($15,000,000.00)
which combines and renews the 1993 Renewal Note and the Demand Note.
WHEREAS, the principal balance remaining under the 1998 Renewal Note is
Fifteen Million and No/100 Dollars ($15,000,000.00) and the principal balance
remaining unpaid on the 1996 Promissory Note is Eight Million Two Hundred
Fifty Thousand and No/100 Dollars ($8,250,000,000.00).
WHEREAS, Mortgagor has agreed to consolidate the First Consolidated
Mortgage and the Demand Note Mortgage as well as to modify and restate the
terms and conditions of said documents, as set forth in this Mortgage, and
has agreed that the 1998 Renewal Note and the 1996 Promissory Note are
collateralized by this Mortgage.
NOW, THEREFORE, in consideration of the aforesaid premises, the mutual
benefits and the mutual promises of the parties hereto and other good and
valuable consideration, it is hereby agreed by the Mortgagor and Mortgagee
as follows:
KNOW ALL MEN BY THESE PRESENTS, that Mortgagor does hereby grant, bargain,
sell, assign and convey to Mortgagee and Mortgagee's successors and assigns
forever, the real estate more particularly described in Exhibit A attached
hereto and made a part hereto, together with all the buildings, structures,
offices, barns, tanks, and all other improvements of whatsoever kind and nature,
now or hereafter erected thereon and located in the County of Polk, State of
Florida, together with all and singular the easements, tenements, hereditaments,
appurtenances and other rights and privileges thereunto belonging or in any
wise now or hereafter appertaining, and the rents, issues and profits thereof,
as well as all proceeds under any policy or policies of insurance; together
with all tangible personal property and fixtures of Mortgagor whether now
owned or in existence of hereafter acquired or created, including goods (but
excluding inventory), accessions, machinery, equipment, farm products and
fixtures, such terms having the meaning ascribed by the Uniform Commercial
Code, including, but not limited to, all citrus crops now and hereafter
growing on the real estate described on Exhibit A attached hereto and made a
part hereof (provided that the Mortgagee's interest as a first lienor on
such citrus crops shall remain in effect until such time as such citrus crops
are harvested, processed or packed, and thereafter the lien evidenced hereby
shall be deemed to be released and provided further that all of Mortgagor's
existing and future inventories of citrus products are specifically excluded
from the lien of this Mortgage), all minerals or the like (including oil
and gas) now and hereafter situate in, under or on the real estate described
on Exhibit A attached hereto and made a part hereof or extracted
therefrom, and all apparatus, chattels, fixtures, machinery, furniture,
furnishings, installations, equipment and other property (provided that all
grove caretaking and harvesting equipment including, but not limited to,
nonpermanent irrigation equipment not necessary for proper irrigation and
care of the real estate described on Exhibit A attached hereto and made a
part hereof, sprayers, tractors, trucks, trailers, hedging and topping
equipment and movable grove caretaking and harvesting equipment of like
nature are specifically excluded from the lien of this Mortgage) now or
hereafter attached to or used or procured for use in connection with the
operation and maintenance of a citrus concentrate plant situate on the real
estate described on Exhibit A attached hereto and made a part hereof or in
connection with the operation, maintenance or protection of any buildings,
structures, offices, barns, tanks and all other improvements of whatsoever
kind and nature, whether real or personal, whether now owned or hereafter
acquired, and whether or not attached to any building, structure, office,
barn, tank, or any other improvements of whatsoever kind and nature, and
all elevators, escalators, vaults, safes, screens, awnings, storm windows
and doors, window blinds and shades, inlaid floor coverings, shrubbery,
plants, fences, gates, stoves, ranges, sinks, drinking fountains, ventilating,
refrigerating, air conditioning, incinerating, dishwashing and cleaning
equipment, pipes, wires, irrigation and sprinkler systems (including overhead
or underground systems and all xxxxx, pumps, motors and power units which
are installed as part of same) and all apparatus associated with the foregoing
located on the real estate described on Exhibit A attached hereto and made a
part hereof, all of which shall be subject to the lien of this Mortgage. To
the extent permitted by law, the foregoing items shall be considered part
of the hereinabove described real estate.
TO HAVE AND TO HOLD said mortgaged premises, with all said tenements,
hereditaments, easements, appurtenances and other rights and privileges
thereunto belonging, or in any wise now or hereafter appertaining unto and
to the use of the Mortgagee, its successors and assigns, forever.
THE MORTGAGOR HEREBY COVENANTS AND AGREES:
1. The recitals set forth in the foregoing "WHEREAS" clauses are true and
correct and are hereby incorporated by reference and made a part hereof
as if fully set forth herein. This Mortgage is given as security for
the performance and observation of the covenants and agreements herein
contained and to secure to the Mortgagee the payment of the principal
sum of Fifteen Million and no/100 Dollars ($15,000,000.00) and interest
thereon evidenced by the 1998 Renewal Note according to its terms, the
final payment of the entire indebtedness, including accrued and unpaid
interest, if any, being due and payable on June 1, 2008, as well as to
secure to Mortgagee the payment of the principal sum of Ten Million and
No/100 Dollars ($10,000,000.00) and interest thereon evidenced by the 1996
Promissory Note, payable according to its terms, to the order of the
Mortgagee, the final payment of the entire indebtedness, including accrued
and unpaid interest, if any, being due and payable on August 1, 2003.
Immediately upon recording this Mortgage among the Public Records of Polk
County, Florida, the lien of the First Consolidated Mortgage and the
Demand Note Mortgage as consolidated, modified and restated herein, is
and shall be construed to constitute in law one first mortgage lien on the
real property described on Exhibit A attached hereto and made a part
hereof, as well as the improvements and personal property situate thereon
(as described above) securing the obligations set forth in the 1998
Renewal Note and the 1996 Promissory Note, and although the First
Consolidated Mortgage and the Demand Note Mortgage, as consolidated,
modified and restated herein, shall remain in full force and effect as a
lien and encumbrance in favor of the Mortgagee, henceforth the recitations,
terms, conditions, covenants, promises and provisions of this Mortgage
shall constitute the one first mortgage lien from Mortgagor to Mortgagee
encumbering the real property described on Exhibit A attached hereto and
made a part hereof, as well as the improvements and personal property
situate thereon (as described above), and the recitations, terms,
conditions, covenants, promises and provisions of this Mortgage shall
govern in the event of a conflict between the terms and conditions set
forth in this Mortgage and those set forth in the First Consolidated
Mortgage and the Demand Note Mortgage. Any default by the Mortgagor in
the payment or performance of the 1998 Renewal Note and the 1996
Promissory Note shall, at the option of Mortgagee, constitute a default
not only with respect to the 1998 Renewal Note and this Mortgage, but
also with respect to the 1996 Promissory Note, and any default by the
Mortgagor in the payment or performance of the 1996 Promissory Note shall,
at the option of Mortgagee, constitute a default not only with respect to
the 1996 Promissory Note and this Mortgage, but also with respect to the
1998 Renewal Note, and, in any of such events, Mortgagee shall be
entitled to exercise all of the rights granted to Mortgagee in the event
of a default as set forth in the 1998 Renewal Note, the 1996 Promissory
Note and this Mortgage, as well as in law and/or in equity.
2. The Mortgagor is well and lawfully seized of the mortgaged premises as
a good and indefeasible estate in fee simple and has good right and full
power to sell and convey the same; that the mortgaged premises are free
and clear of all encumbrances, except this Mortgage (and other loan
documents consolidated, modified and restated herein), building and use
restrictions and easement of record, if any, zoning ordinances, if any,
and taxes and assessments not yet overdue; and that the Mortgagor will
make any further assurances of title that the Mortgagee may require and
will warrant and defend said mortgaged premises against all lawful
claims and demands whatsoever.
3. Mortgagor will pay the 1998 Renewal Note and the 1996 Promissory Note
(hereinafter sometimes collectively referred to as the "Notes") in
accordance with their terms and will perform and comply with all of the
terms and provisions thereof.
4. Mortgagor will keep protected and in good order, repair and condition at
all times the buildings and improvements (including fixtures) now standing
or hereafter erected or placed upon the mortgaged premises and any and all
appurtenances, apparatus and articles of personal property, including,
but not limited to, furniture, furnishings and equipment, now or hereafter
in or attached to or used in connection with said buildings or
improvements, promptly replacing any of the aforesaid which may become
lost, destroyed or unsuitable for use, and will keep insured the
aforesaid real and personal property and the interests and liabilities
incident to the ownership thereof, in manner, forms, companies, sums
and length of terms satisfactory to the Mortgagee, provided, however,
that Federal Crop Insurance shall not be required of the Mortgagor; that
all insurance policies are to be held by and, to the extent of its
interests, are to be for the benefit of and first payable in case of
loss to the Mortgagee except as hereinafter provided, and the Mortgagor
shall deliver to the Mortgagee evidence of continuing insurance
coverage at least fifteen (15) days before the date any existing policy
expires. In the event of a casualty or loss as contemplated herein for
which insurance proceeds are recoverable under the policy or policies of
insurance to be kept by the Mortgagor, the amounts recoverable shall be
applied as follows:
(a) in events of casualty or loss for which the proceeds
recoverable are $50,000.00 or less, such proceeds may be collected solely
by the Mortgagor and used by the Mortgagor in any manner it deems fit and
proper, whether for restoration of the loss or casualty or otherwise;
(b) in events of casualty or loss for which the proceeds
recoverable are in excess of $50,000.00, but less than $500,000.00, and the
further event that the Mortgagor shall have, on or before the time of
collection of said proceeds, furnished to the Mortgagee evidence satisfactory
to the Mortgagee that such proceeds will and can be used to replace or
restore the lost or damaged property to a condition satisfactory to the
Mortgagee within nine (9) months from the date of the casualty or loss,
then, in such events, it shall be conclusively presumed that the Mortgagee
has agreed to the application and use of such proceeds for such replacement
and restoration and the other options of the Mortgagee regarding the
application of insurance proceeds (as set forth in subparagraph (c) below)
shall be unavailable to the Mortgagee, provided however, that in such
foregoing events the Mortgagor will remain obligated to actually apply such
proceeds to said replacement or restoration, and provided further that should
Mortgagor fail to provide Mortgagee with the aforementioned satisfactory
evidence of use of proceeds for replacement and restoration purposes,
then the Mortgagee's options regarding the application of insurance
proceeds recited in subparagraph (c) below shall remain fully available
to the Mortgagee;
(c) in events of casualty or loss for which the proceeds
recoverable are $500,000.00 or more, the proceeds collected may, at the option
of the Mortgagee, be used in any one or more of the following ways:
(1) applied against the indebtedness secured hereby, whether such indebtedness
then be matured or unmatured, (2) used to fulfill any of the covenants
contained herein as the Mortgagee may determine, (3) used to replace or
restore the property to a condition satisfactory to the Mortgagee, or
(4) released to the Mortgagor.
The Mortgagor expressly agrees that all proceeds under any policy or
policies of insurance are hereby assigned to the Mortgagee and both Mortgagor
and Mortgagee expressly agree to the method and manner of application of
proceeds as set forth herein. Additionally, the Mortgagee is hereby
irrevocably appointed by the Mortgagor as attorney of the Mortgagor to assign
any policy in the event of the foreclosure of this Mortgage or other
extinguishment of the indebtedness secured hereby.
5. Mortgagor will pay before same become delinquent or any penalty
attaches thereto for non-payment, all taxes, assessments and charges of
every nature and to whomever assessed that may now or hereafter be levied
or assessed, or by reason of non-payment become a lien prior to this
Mortgage, upon the mortgaged premises or any part thereof, upon the rents,
issues, income or profits thereof, whether any or all of said taxes,
assessments or charges be levied directly or indirectly or as excise
taxes or as income taxes, and will thereupon submit to the Mortgagee
such evidence of the due and punctual payment of such taxes, etc., as
the Mortgagee may require. It is agreed by the Mortgagee and Mortgagor
that there shall be excepted from the foregoing requirement such taxes,
assessments and public charges the assessment or collection of which is
being contested by the Mortgagor, by appropriate legal proceedings, in
good faith and with due diligence, provided always however that the
Mortgagee shall retain the right, notwithstanding any contest which may
be conducted by the Mortgagor, to redeem the mortgaged premises or any
part thereof from tax sale without any obligation on the part of the
Mortgagee to inquire into the validity of such taxes, assessments and/or
tax sales (the receipts of the proper taxing officials being conclusive
evidence of the validity and amount thereof). The Mortgagor agrees that
it shall give Mortgagee fifteen (15) days' prior written notice of its
intention to engage in such good faith contests and shall bear all cost,
expense and attorney fees involved in such contest, including any costs
incurred for same by the Mortgagee.
6. If Mortgagor shall neglect or refuse to keep in good repair and condition
the property referred to in paragraphs 4 and 7, to replace the same as
therein agreed, to maintain and pay the premiums for insurance which
may be required under paragraph 4 or to pay and discharge all taxes,
assessments and charges of every nature and to whomever assessed, as
provided for in paragraph 5, subject to the Mortgagor's right to
bring good faith contests as provided in said paragraph 5, the Mortgagee
may, at its election, cause such repairs or replacements to be made,
obtain such insurance or pay said taxes, assessments and charges and any
amounts paid as a result thereof, together with interest thereon at the
rate of nine and eighteen hundredths percent (9.18%) per annum from the
date of payment, shall be immediately due and payable by the Mortgagor
to the Mortgagee, and until paid shall be added to and become a part of
the principal debt secured hereby, and the same may be collected as a
part of said principal debt in any suit hereon or upon the Notes; or the
Mortgagee, by the payment of any tax assessment or charge, may, if it
sees fit, be thereby subrogated to the rights of the state, county,
village and all political or governmental subdivisions. No such advances
shall be deemed to relieve the Mortgagor from any default hereunder or
impair any right to remedy consequent thereon, and the exercise of the
rights to make advances granted in this paragraph shall be optional with
the Mortgagee and not obligatory and the Mortgagee shall not in any case
be liable to the Mortgagor for a failure to exercise any such right.
7. Mortgagor will keep the mortgaged premises in good order and repair and
will not commit or suffer any waste or stripping of the mortgaged premises
or any violation of any law, regulation, ordinance or contract affecting
the mortgaged premises and will not commit or suffer any demolition,
removal or material alteration of any of the buildings or improvements
(including fixtures) on the mortgaged premises without the prior written
consent of the Mortgagee. The Mortgagor shall have the right, after prior
notice to the Mortgagee, to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of the Mortgagor, without
cost or expense to the Mortgagee, the validity or application of any law
regulation, or ordinance of the nature herein referred to, subject to
the following:
(a) if by the terms of any such law, regulation or ordinance,
compliance therewith pending the prosecution of any such proceeding may
legally be delayed without the incurrence of any lien, charge or liability of
any kind against the mortgaged premises or the Mortgagor's ownership
interest therein, and without subjecting the Mortgagor or the Mortgagee to
any liability, civil or criminal, for failure so to comply, the Mortgagor,
provided it prosecutes any such proceeding with due diligence, may delay
compliance therewith until the final determination of such proceeding;
(b) if any lien, charge or civil liability would be incurred by
reason of any such delay, as provided above in subparagraph (a), the
Mortgagor may nevertheless, with the prior written consent of the Mortgagee,
contest and delay compliance with such law, regulation and ordinance as
provided in subparagraph (a), provided that such contest or delay would not
subject the Mortgagee to criminal liability and the Mortgagor furnishes to the
Mortgagee security, satisfactory to the Mortgagee, against any loss, injury
or liability by reason of such contest or delay, and prosecutes the contest
with due diligence. Upon giving the approvals required above, the Mortgagee
will execute and deliver any appropriate documents which may be necessary
or proper to permit the Mortgagor to contest the validity or application
of any such law, regulation or ordinance, provided however that the Mortgagee
shall not be required to execute and deliver any documents which in the
reasonable judgment of the Mortgagee may prejudice the Mortgagee's interest
in the mortgaged premises.
8. Mortgagor agrees that all awards heretofore or hereafter made by any
public or quasi-public authority to present and all subsequent owners of the
premises covered by this Mortgage by virtue of any exercise of the right of
eminent domain by such authority, including any award for a taking of title,
possession or right of access to a public way, or for any change of grade of
streets affecting said premises, are hereby assigned to the Mortgagee; and the
Mortgagee, at its option, is hereby authorized, directed and empowered to
collect and receive the proceeds of any such award and awards from the
authorities making the same and to give proper receipts and acquittances
therefor, and may, at the Mortgagee's election, use such proceeds in any one
or more of the following ways; (1) apply the same or any part thereof against
the indebtedness secured hereby, whether such indebtedness then be matured
or unmatured, (2) use the same or any part thereof to fulfill any of the
covenants contained herein as the Mortgagee may determine, (3) use the same
or any part thereof to replace or restore the property to a condition
satisfactory to the Mortgagee, or (4) release the same to the Mortgagor;
and the Mortgagor hereby covenants and agrees to and with the Mortgagee, upon
request by the Mortgagee, to make, execute and delivery any and all assignments
and other instruments sufficient for the purpose of assigning all such awards
to the Mortgagee free, clear and discharged of any and all encumbrances of
any kind or nature whatsoever.
9. Of even date herewith, Orange-co, Inc., a Florida corporation
("OCI"), the parent company of the Mortgagor, has issued its certificate to
the Mortgagee, in connection with this loan (the "Certificate") setting forth
its agreements and the business requirements to be maintained by OCI at all
times prior to the payment in full of the indebtedness secured hereby
(the "Business Requirements"). It is agreed that it shall be a default
under the terms and conditions of this Mortgage in the event that OCI fails to
maintain or otherwise violates the Business Requirements set forth in the
Certificate. Mortgagor will deliver to the Mortgagee, in detail satisfactory
to the Mortgagee: (i) unaudited quarterly financial statements regarding OCI
as soon as practicable, but in any event within forty-five (45) days subsequent
to the end of each fiscal quarter, and (ii) within ninety (90) days after the
expiration of each fiscal year, audited financial statements regarding OCI and
related certificates and financial data, all in accordance with paragraph 16
hereof. At the same time that the above described quarterly and annual
financial statements are delivered to the Mortgagee, the appropriate corporate
officers of OCI shall issue and deliver a certificate to the Mortgagee as to
whether the covenants set forth in the Certificate have been complied with,
and stating whether or not there exists any default or any event of default
under the Notes, this Mortgage or under the Certificate, and the appropriate
corporate officers of the Mortgagor shall issue and deliver a certificate to
the Mortgagee as to whether the covenant set forth in this Mortgage has been
complied with, and stating whether or not there exists any default or any
event of defaults under the Note, this Mortgage or any document executed in
connection with same.
10. That if any action or proceeding be commenced, excepting an action to
foreclose this Mortgage or to collect the debt hereby secured, to which action
or proceeding the Mortgagee is made a party by reason of the execution of this
Mortgage or the Notes which it secures, or in which it becomes necessary to
defend or uphold the lien of this Mortgage, all sums paid by the Mortgagee
for the expense of any litigation to prosecute or defend the rights and lien
created hereby including all court costs, abstracting charges and reasonable
attorneys' fees (including such fees for trial, pretrial and appellate matters),
shall be paid by the Mortgagor together with interest thereon from date of
payment at the rate of nine and eighteen hundredths percent (9.18%) per annum
and any such sum and the interest thereon shall be immediately due and payable
and be secured hereby, having the benefit of the lien hereby created, as a part
thereof, and of its priority.
11. Subject to the Mortgagor's right to bring good faith contests as
provided above in paragraph 5, Mortgagor shall pay all sums, the failure to pay
which may result in the acquisition of a lien prior to the lien of this Mortgage
before such a prior lien may attach, or which may result in conferring upon a
tenant of any part of the mortgaged premises a right to recover such sums as
prepaid rent, or as a credit or offset against any future rental obligation.
12. Mortgagor shall assign to the Mortgagee, upon request, as further
security for the indebtedness secured hereby, the lessor's interests in any
or all leases, and the Mortgagor's interests in all agreements, contracts,
licenses and permits affecting the property subject to this Mortgage, such
assignments to be made by instruments in from satisfactory to the Mortgagee;
but no such assignment shall be construed as a consent by the Mortgagee to any
lease, agreement, contract, license or permit so assigned, or to impose upon
the Mortgagee any obligations with respect thereto. Nothing contained in this
paragraph 12 or in paragraphs 13 or 14 below shall be construed as a waiver or
consent by the Mortgagee to any violation of the prohibitions and restrictions
set forth in subparagraph 23 (g) hereof.
13. Mortgagor shall not cancel any of the leases now or hereafter
assigned to Mortgagee pursuant to paragraph 12 above, nor terminate or accept
a surrender thereof or reduce the payment of the rent thereunder or modify
any of said leases or accept any prepayment of rent therein (except any
amount which may be required to be prepaid by the terms of any such lease)
without first obtaining, on each occasion, the written approval of the
Mortgagee.
14. Mortgagor will faithfully keep and perform all of the obligations
of the landlord under all of the leases now or hereafter assigned to the
Mortgagee pursuant to paragraph 12 above and will not permit to accrue to any
tenant under any such lease any right to prepaid rent pursuant to the terms of
any lease other than the usual prepayment of rent as would result from the
acceptance on the first day of each month of the rent for the ensuing month,
according to the terms of the various leases.
15. Except as otherwise provided herein, the Mortgagor agrees that,
during the term hereof, the Mortgagor will not acquire any equipment,
machinery, furniture, furnishings, fixtures or apparatus covered by this
Mortgage subject to any security interest, conditional sale, title retention
arrangement or other charge or lien taking precedence over this Mortgage.
The Mortgagor shall have the right to add, substitute or replace such machinery
and equipment during the term hereof, provided, however, that the Mortgagor
shall not so add, substitute or replace in such a manner as to substantially
diminish or impair the value of the security of this Mortgage and provided
further that all of the right, title and interest of the Mortgagor in all such
replacement or additional machinery and equipment shall, when acquired by the
Mortgagor, be encumbered by the lien of this Mortgage and become an integral
part of the security under this Mortgage. Anything to the contrary contained
in this Mortgage, including the specific provisions ofthis paragraph 15,
notwithstanding, the Mortgagor shall have the right without being deemed to
be in default of its covenants contained herein, during the term hereof and
without the prior written consent of the Mortgagee, to remove as items included
in the mortgaged premises, such equipment, machinery, furniture, furnishings,
fixtures or apparatus which have depreciated to such extent so as to render
the same a non-material asset or assets. For the purposes of this paragraph 15,
non-material assets are those items of personal property having a salvage value
of $50,000 or less. In events of removal of non-material assets by the
Mortgagor, the Mortgagor shall not be required to replace such assets as
contemplated herein unless such removal without replacement will serve to
substantially diminish or impair the value of the security of this Mortgage or
materially affect the business operations of the Mortgagor or its ability
to fulfill its obligations hereunder. The Mortgagor expressly agrees that
it shall not, without replacing same, remove as part of the mortgaged premises
any tangible personal property having a salvage value in excess of $50,000
without having first obtained the prior written consent of the Mortgagee.
16. Mortgagor shall furnish to Mortgagee, at Mortgagor's expense,
within ninety (90) days after the end of each fiscal year, a consolidated
balance sheet and consolidated statement of income and retained earnings
of OCI and said company's consolidated subsidiaries, certified by independent
public accountants selected by OCI and satisfactory to the Mortgagee, together
with a certificate of said accountants to the effect that their audit of the
financial affairs of OCI and its consolidated subsidiaries for such fiscal year
has not disclosed any default under the terms and provisions of this Mortgage,
or if such accountants have obtained knowledge of such default, they shall
specify in the certificate the nature and status thereof. The foregoing audited
financial statement shall be accompanied by unaudited consolidating financial
information reporting financial data for the Mortgagor. Such supplementary
financial information relating to the condition of the Mortgagor is to be of
sufficient detail in order to permit determination of the status of the various
financial and business requirements provided for herein. The Mortgagee and
its representatives shall have the right to inspect all books of accounts
relating to the property encumbered by this Mortgage and the financial and
business requirements contained herein (and to make copies or extracts
therefrom) and to cause such books to be audited by such independent public
accountants selected by the Mortgagee as often as may be reasonably requested,
provided however, that such inspection and audit shall be at the Mortgagee's
expense.
17. This Mortgage is personal to the Mortgagor herein, and no sale,
lease, encumbrance or other transfer or conveyance shall be made by Mortgagor
of the property encumbered by this Mortgage, except for the sale of non-material
personal property pursuant to paragraph 15 of this Mortgage, or premises
described herein or any part thereof without first obtaining the prior written
consent of the Mortgagee. In the event Mortgagee gives this written consent
in a sale transaction, the grantee named in the conveyance shall assume and
agree to pay the obligation evidenced by the Notes secured hereby. Any
conveyance of the property herein described or any part thereof in violation
of the terms of this paragraph shall entitle Mortgagee to accelerate the
payment of the obligation secured hereby and all sums of money secured hereby
shall, at the option of Mortgagee, and upon the giving of notice thereof,
become immediately due and payable and in default whether or not the same are
so due and payable and in default by the specific terms hereof. In the event
of sale with the approval of Mortgagee having first been obtained, nothing
herein contained shall be construed to constitute a novation or release
Mortgagor or any subsequent owner of liability or obligation under the Notes
secured hereby or this Mortgage by reason of the aforesaid assumption of the
obligation under the Notes secured hereunder, whether real or personal,
excepting that the Mortgagor shall have the right to add, substitute or replace
personal property without the prior consent of the Mortgagee in accordance with
the provisions of paragraph 15 hereof, and excepting that the Mortgagor shall
be permitted to bring good faith contests as provided in paragraph 5 herein.
18. Mortgagor shall not at any time during the term hereof, without
having first obtained the prior written consent of the Mortgagee, mortgage,
pledge or otherwise encumber or place any lien, or permit the same, to
be filed against the real and personal property encumbered hereby, or
any portion thereof.
19. Mortgagor shall at all times during the term hereof comply with and
conform to the requirements of all federal, state and local laws, ordinances,
regulations, conditions and restrictions applicable or pertaining to, or
affecting, the property and improvements described herein or the business and
operations of the Mortgagor, and Mortgagor shall not knowingly commit, suffer
or permit any act to be done in violation thereof, including, without
limitation, all federal, state and local pollution control laws and regulations
affecting the property encumbered hereby and the operation hereof. Mortgagor
warrants and represents that:
(a) to the best of Mortgagor's knowledge, there has been no release
or discharge of hazardous materials, hazardous wastes, hazardous substances,
solid wastes or pollution upon, in, over or under the mortgaged premises and
that no such materials or pollution has migrated thereto from neighboring land;
(b) Mortgagor has not received any notice from any governmental
agency or authority or from any tenant or other occupant or from any other
person or entity with respect to any release or discharge of hazardous
materials, hazardous wastes, hazardous substances, solid waste or pollution
upon, in, over or under the mortgaged premises;
(c) to the best of Mortgagor's knowledge, there is no asbestos or
asbestos-containing materials, PCB's, radon gas or urea formaldehyde foam
insulation at or within the mortgaged premises; and
(d) Mortgagor has fully disclosed to Mortgagee all material facts
regarding the mortgaged premises, the Mortgagor and the Mortgagor's business
operations.
If Mortgagor's warranties and representations set forth in this Mortgage
are not true and correct, then Mortgagee, at its option, shall have the right
to declare the loan immediately due and payable and to accelerate the entire
indebtedness.
Mortgagor covenants and agrees that:
(a) Mortgagor is not and will not become involved in operations at
the mortgaged premises or at other locations which would lead to the imposition
on Mortgagor of liability under Chapter 403, Florida Statutes, the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6903, Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
42 U.S. 9601 or any other federal, state or local ordinances, laws
or regulations regarding environmental matters or hazardous substances;
(b) Mortgagor will promptly comply with the requirements of Chapter
000, Xxxxxxx Xxxxxxxx, XXXX, XXXXXX and all federal, state and local laws
and regulations regarding environmental matters or hazardous substances as the
same may each be amended from time to time (including all federal, state and
local laws and regulations regarding underground storage tanks), and all such
laws and regulations relating to asbestos and asbestos-containing materials,
PCB's, radon gas, and urea formaldehyde foam insulation, and will notify
Mortgagee promptly in the event of any release or discharge or a threatened
release or discharge of hazardous materials, hazardous wastes, hazardous
substances, solid waste or pollution upon, in, over or under the mortgaged
premises as those terms are defined in Chapter 403, Florida Statutes and any
federal, state or local ordinances, laws or regulations regarding environmental
matters or hazardous substances, or the presence of asbestos or
asbestos-containing materials, PCB's, radon gas or urea formaldehyde foam
insulation at the mortgaged premises, or of the receipt by Mortgagor of any
notice from any governmental agency or authority or from any tenant or other
occupant or from any other person or entity with respect to any alleged such
release or presence promptly upon discovery of such release, or promptly
upon receipt of such notice, and will promptly send Mortgagee copies of all
results of any tests regarding same on the mortgaged premises, including, but
not limited to test on underground storage tanks; and
(c) Mortgagor indemnifies and holds Mortgagee harmless from and
against all loss, liability, damage and expense, including attorneys fees on
the trial court and appellate levels, suffered or incurred by Mortgagee, as
holder of the Mortgage, Mortgagee in possession or as successor in interest
to Mortgagor as owner ofthe mortgaged premises by virtue of foreclosure or
acceptance of a deed in lieu of foreclosure, under or on account of said
Chapter 403 and any federal, state or local ordinances, laws or regulations
regarding environmental matters or hazardous substances, including the
assertion of any liens taking priority over the lien of this Mortgage
relating to any such release or discharge of hazardous materials which may
occur prior to the discharge of this Mortgage.
In the event that Mortgagor fails to abide by the above-described
covenants, Mortgagee, at its option, shall have the right to declare the loan
immediately due and payable, and to accelerate the entire indebtedness.
During the term of this Mortgage, Mortgagee may, but is not obligated to,
enter upon the mortgaged premises to make reasonable inspection of its
condition, including, but not limited to soil and groundwater sampling and
monitoring, inspection for hazardous waste, asbestos or asbestos-containing
materials, PBC's, radon gas and/or urea formaldehyde foam insulation;
provided, however, that any such inspections shall be at reasonable times
and without unreasonably disturbing the occupancy of any of the tenants on
the mortgaged premises.
In the event Mortgagor fails to comply with the requirements of said
Chapters 403 and any federal, state or local ordinances, laws or regulations
regarding environmental matters or hazardous substances, and should such
condition remain uncorrected for a period of thirty (30) days, Mortgagee
may, at its election, but without the obligation so to do, cause curative or
remedial work to be performed at the mortgaged premises, or take any and
all other actions as Mortgagee deems necessary, as shall cure said failure
of compliance, and any amounts paid as a result thereof, together with
interest thereon from the date of payment at the rate equal to the highest
rate permitted by law, but in no event to exceed twelve and one-half percent
(12.5%) per annum, shall be immediately due and payable by Mortgagor to
Mortgagee, and until paid shall be added to and become a part of the
principal debt secured hereby, having the benefit of the lien hereby created,
as a part thereof, and of its priority, and the same may be collected
as a part of said principal debt in any suit hereon or upon the Notes secured
hereby, or Mortgagee, by the payment of any assessment, claim or charge, may,
if it sees fit, be thereby subrogated to the rights of the State of Florida,
but no such advance shall be deemed to relieve Mortgagor from any default
hereunder or impair any rights or remedy consequent thereon.
20. Mortgagor agrees that during the term hereof, the Mortgagee shall
have the right, upon reasonable notice, during normal business hours and by
appointment, to enter upon the mortgaged premises for the purpose of
inspecting same and for the purpose of ascertaining that the various
requirements and restrictions contained herein are being complied with by
the Mortgagor.
21. In the event that Mortgagor shall (1) consent to the appointment
of a receiver or trustee of all or a substantial part of Mortgagor's assets,
or (2) be adjudicated a bankrupt or insolvent, or file voluntary petition
in bankruptcy or admit in writing its inability to pay its debts as they
become due, or (3) make a general assignment for the benefit of creditors, or
(4) file a petition or answer seeking reorganization or arrangement with
creditors, or to take advantage of any insolvency law, or (5) file an answer
admitting the material allegations of a petition filed against the Mortgagor
in any bankruptcy, reorganization or insolvency proceeding, or (6) action
shall be taken by the Mortgagor for the purpose of effecting any of the
foregoing, or (7) any order, judgment or decree shall be entered upon an
application of a creditor or Mortgagor by a court of competent jurisdiction
approving a petition seeking appointment of a receiver or trustee of all or
a substantial part of the Mortgagor's assets and such order, judgment or
decree shall continue unstayed and in effect for any period of thirty (30)
consecutive days, the Mortgagee may declare the Notes hereby secured
immediately due and payable, without notice or demand, whereupon the principal
of and the interest accrued on the Notes and all other sums hereby secured
shall become immediately due and payable as if all of the said sums of money
were originally stipulated to be paid on such day; and thereupon the Mortgagee
without notice or demand may prosecute a suit at law and/or in equity as
if all monies secured hereby had matured prior to its institution.
22. It is agreed that nothing herein contained nor any transaction
related thereto shall be construed or so operate as to require the Mortgagor
to pay interest at a rate greater than it is now lawful in such case to
contract for, or to make any payment or to do any act contrary to law; that
if any clauses or provisions herein contained operate or would
prospectively operate to invalidate this Mortgage or the Notes in whole or in
part, then, such clauses and provisions only shall be held for naught, as
though not herein contained, and the remainder of this Mortgage shall remain
operative and in full force and effect.
23. The Mortgagor understands and agrees that the successful
operation of the mortgaged premises by the Mortgagor as a citrus concentrate
plant forms an integral part of the security given hereby and the Mortgagor
expressly agrees that it shall, during the term hereof, conduct its corporate
business in compliance with the below-listed requirements and the failure by
Mortgagor to comply with or abide by such requirements, or Mortgagor's
misrepresentation regarding any or all of the facts hereafter recited, shall
constitute a default under this Mortgage and the Notes secured hereby.
By its execution hereof, the Mortgagor does hereby represent and warrant
all of the facts hereafter recited and covenants and agrees with the
Mortgagee that it shall comply with or abide by the below-listed requirements
at all times during the term hereof, to-wit:
(a) The Mortgagor represents, that on the date hereof, it is a
corporation duly incorporated and validly existing in good standing under the
laws of the State of Florida and that it is a wholly-owned subsidiary of OCI.
Additionally, Mortgagor covenants and agrees that it shall, at all times during
the term hereof, remain validly existing and in good standing under the laws
of the State of Florida, and that it shall not enter into a merger or
consolidation agreement with any other corporation, foreign or domestic,
including, without limitation, Mortgagor's parent company, OCI, or its
successor, without the prior written consent of the Mortgagee.
(b) The Mortgagor represents that the execution and delivery by it
of this Mortgage, the Notes secured hereby, and related loan documents, and the
performance by the Mortgagor thereunder, have been duly authorized by all
necessary corporate action and will not violate any provision of law or the
charter or by-laws of Mortgagor or result in the breach or constitute a default
under any indenture or other agreement or instrument to which the Mortgagor is
a party or by which the Mortgagor or the real and personal property
encumbered hereby may be bound or affected.
(c) The Mortgagor covenants and agrees that, during the term hereof,
its lines of business shall be restricted to activities directly or
substantially related to the citrus industry.
(d) The Mortgagor covenants and agrees that, except for transactions
in the ordinary course of or pursuant to the reasonable requirements of the
Mortgagor's business, all transactions between the Mortgagor and affiliates
(including its parent company, OCI or its successor) shall be on terms which
are not substantially different from those which the Mortgagor could have
obtained from unrelated parties as a result of "arms-length" bargaining.
(e) The Mortgagor covenants and agrees that, during the term hereof,
it shall annually reinvest not less than 25% of its annual depreciation
(as indicated on the required financial statements and reports to be furnished
by Mortgagor to Mortgagee) in capital improvements or repairs and maintenance
of the concentrate plant which is included as part of the security hereof and
are encumbered hereby. By its execution hereof, the Mortgagor expressly
understands and agrees that for the purposes of this subparagraph (e) relating
to reinvestment requirements, sums expended in employing practices of good
husbandry (with the exception of such items as adding or replacing irrigation
and drainage pumps and equipment and the replacement of unproductive trees)
shall not qualify for inclusion within the annual reinvestment
requirement of not less than 25% of its annual depreciation.
The Mortgagor further expressly agrees that if such amount of its annual
depreciation is not so reinvested, the Mortgagor will establish an escrow
account, satisfactory in all respects to the Mortgagee and will pay annually
into such account an amount equal to the difference between 25% of its annual
depreciation and the amounts actually reinvested, as contemplated herein, by
the Mortgagor in any one given fiscal year, and the Mortgagor shall set a
reserve aside therefor. The amounts so deposited by Mortgagor into the escrow
account may be used for reinvestment purposes within a five-year period,
and to the extent not so reinvested, such funds, at the sole option of the
Mortgagee, may be applied to the then unpaid principal balance due under
the Notes secured hereby. It is agreed between the Mortgagor and the
Mortgagee that if, in any one fiscal year, the Mortgagor shall invest an
amount in excess of 25% of its annual depreciation in capital improvements or
repairs and maintenance, then, such amount in excess of 25% of its annual
depreciation may be credited toward the Mortgagor's obligations under this
subparagraph (e) in any of the Mortgagor's next five ensuing fiscal years.
(f) Intentionally Deleted.
(g) The Mortgagor represents that, on the date hereof, all
certificates, licenses and permits applicable to the property encumbered
hereby, including, but not limited to, all necessary water usage or
consumption permits, fruit dealers and citrus packing, producing and marketing
licenses and permits, all required pollution control permits, and State
and local agricultural permits, have been obtained, and Mortgagor agrees to
keep all such certificates, licenses and permits current during the term
hereof. Additionally, the Mortgagor covenants and agrees to use its best
efforts to comply with the requirements of all Federal, State and local
pollution control laws and regulations applicable to the property encumbered
hereby and to the business and operations of the Mortgagor.
(h) The Mortgagor acknowledges that, in accordance with paragraph 15
hereof and subject to its provisions, the Mortgagor's right to substitute and
replace machinery and equipment shall exist only in those events in which the
value of the Mortgagee's security will not be reduced or impaired by such
substitution or replacement and in which the Mortgagee will obtain the first
and best lien on the machinery and/or equipment so substituted or replaced.
(i) It is agreed that all references to Mortgagor's parent company,
OCI, contained in this Mortgage shall be deemed and construed to include any
successor, by any means whatsoever, to OCI, and any successor to such
successor, etc.
(j) The Mortgagor covenants and agrees that it shall, upon learning
of or recognizing any non-compliance with any of the special requirements and
restrictions contained in this paragraph 23, or of non-compliance with any of
the other provisions of this Mortgage, including without limitation, the
provisions contained in paragraphs 15, 17, 18 and 19 hereof, give written
notice to the Mortgagee of such non-compliance within ten (10) days from such
recognition. In the event of any default under the terms and conditions of
this paragraph 23, or under the terms and conditions of paragraphs 15, 17, 18,
and 19 hereof, aforesaid, and such default shall have continued for a period
of thirty (30) days or more after written notice thereof has been given by the
Mortgagor to the Mortgagee as provided above, or, in any event, shall have
continued for a period of thirty (30) days or more after written notice thereof
has been given by the Mortgagee to the Mortgagor (it being expressly understood
by the Mortgagor that the Mortgagee may give such notice of default regarding
the obligations to be performed by the Mortgagor hereunder at any time the
Mortgagee learns of such default by any means whatsoever and the Mortgagee's
right to give such notice is not conditioned upon having received a notice
from the Mortgagor as provided above) and such default shall have not
been cured or the Mortgagor shall not have commenced upon the curing thereof
to the satisfaction of the Mortgagee within said thirty (30) days' period
then, at its option, the Mortgagee shall be entitled to accelerate the payment
of the obligation secured hereby and all sums of money secured hereby shall
become immediately due and payable and in default whether or not the same are
so due and payable and in default by the specific terms hereof. It is
expressly understood between the Mortgagor and the Mortgagee that the aforesaid
thirty (30) day grace period shall apply only in the event of a default
under this paragraph 23 and under paragraphs 15, 17, 18 and 19 hereof and
such grace period shall not apply to any default under any other provision,
requirement, condition or covenant contained herein, in the Notes secured
hereby, or in any other related or associated loan document given by the
Mortgagor to the Mortgagee.
24. It is agreed that any sum or sums which may be loaned or advanced
by the Mortgagee to the Mortgagor at any time within twenty (20) years from the
date of this indenture, together with interest thereon at the rate agreed upon
at the time of such loan or advance shall be equally secured with and have
the same priority as the original indebtedness and be subject to all the terms
and provisions of this Mortgage; provided that the aggregate amount of
principal outstanding at any time shall not exceed the sum of $25,000,000.00,
plus interest thereon, and any disbursements made for the payment of taxes,
levies, or insurance on the property covered by the lien of this
Mortgage, with interest on such disbursements.
25. By its execution and delivery hereof, the Mortgagor does hereby
represent and warrant unto the Mortgagee that there are no actions, suits or
proceedings pending or, to the best of the knowledge and belief of the
Mortgagor, threatened against or affecting the Mortgagor or its subsidiaries,
at law or in equity or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which may result in any material adverse change in the
business, properties or assets or in the condition, financial or otherwise,
of the Mortgagor or any of its subsidiaries. The Mortgagor expressly agrees
that if the aforementioned representation and warranty prove to be false or
if the Mortgagor has misrepresented the facts set forth above, either of such
events shall constitute a default under this Mortgage and the Notes secured
hereby entitling the Mortgagee to exercise all of the rights and remedies
contained herein and in the Notes.
26. No delay by Mortgagee in exercising any right or remedy hereunder,
or otherwise afforded by law, shall operate as a waiver thereof or preclude
the exercise thereof during the continuance of any default thereunder. No
waiver by Mortgagee of any default shall constitute a waiver of or consent to
subsequent defaults. No failure of Mortgagee to exercise any option herein
given to accelerate the maturity of the debt hereby secured, no forbearance by
Mortgagee before or after the exercise of such option and no withdrawal or
abandonment of foreclosure proceedings by Mortgagee shall be taken or construed
as a waiver of its right to exercise such option or to accelerate the maturity
of the debt hereby secured by reason of any past, present or future defult
on the part of Mortgagor; and, in like manner, the procurement of insurance
or the payment of taxes or other liens or charges by Mortgagee shall not be
taken or construed as a waiver of its right to accelerate the maturity of
the debt hereby secured.
27. All written notices required to be given in connection with this
Mortgage shall be deemed to have been properly given if mailed by registered
or certified mail or personally delivered, if to Mortgagee, at Xxxx Xxxxxxx
Mutual Life Insurance Company, X.X. Xxx 000, Xxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Bond and Corporate Finance Department
(Agri Business Group); and if to the Mortgagor, at 0000 X.X. Xxxxxxx 00 Xxxxx,
Xxxxxx, Xxxxxxx 00000. Said addresses may be changed from time to time by any
of the foregoing parties by notice to the others, mailed or delivered as
aforesaid, of the location and mailing address of the place at which notice is
thereafter to be mailed or delivered.
28. This instrument also creates a security interest in favor of
Mortgagee under the Florida Uniform Commercial Code and shall be construed as
a security agreement under said Code, and Mortgagee shall also have all rights
and remedies of a secured party under the Florida Uniform Commercial Code, and
without limitation upon or in derogation of the rights and remedies created
under and accorded Mortgagee by this Mortgage pursuant to the common law or any
other laws of the State of Florida or of any other jurisdiction, it being
understood that the rights and remedies of Mortgagee under the Florida Uniform
Commercial Code shall be cumulative and in addition to all other rights
and remedies of Mortgagee arising under the common law, or any other laws of
the State of Florida or of any other jurisdiction. This Mortgage creates a
continuing lien to secure the full and final payment of the Notes and the
performance of all other obligations imposed hereby and hereafter arising.
29. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS MORTGAGE AND ANY AGREEMENT EXECUTED IN CONNECTION WITH THIS MORTGAGE,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR MORTGAGEE ACCEPTING THIS MORTGAGE AND MAKING THE LOAN TO MORTGAGOR.
NOW, if the payments are made as provided and all the foregoing
covenants and agreements are performed and observed, this Mortgage shall be
null and void and shall be released at the cost of the Mortgagor, which cost
the Mortgagor agrees to pay; but upon any default in the payment of the
indebtedness hereby secured or of any installment thereof or of interest
thereon, as they severally become due, or upon any default in the performance
or observance of any of the terms, covenants or agreements of this
Mortgage or of any of the assignments of leases beyond any applicable grace
period from time to time given by Mortgagor to Mortgagee as further security
for said loan, then, in any or either of said events, the whole of the
indebtedness hereby secured, at the option of the Mortgagee or the legal holder
of said indebtedness, shall become immediately due and payable without notice
or in the event of the passage after the date of this Mortgage of any law of
the State of Florida deducting from the value of land for the purpose of
taxation any lien thereon, or changing in any way the laws now in force for the
taxation of mortgages or debts secured by mortgages for state or local
purposes, or the manner of the collection of any such taxation so as to affect
this Mortgage adversely, the holder of this Mortgage, and of the debt
which it secures, shall have the right to give thirty (30) days' written
notice to the owner of the mortgaged premises requiring the payment of the
mortgage debt, and it is hereby agreed that, if such notice be given, the
said debt shall become due, payable and collectible at the expiration of said
thirty (30) days provided, however, that such requirement of payment of said
debt shall be ineffective if the Mortgagor is permitted by law to pay
or reimburse the Mortgagee for payment of the whole of such tax in addition
to all other payment required hereunder, without any penalty thereby accruing
to the holder of this Mortgage and the debt secured hereby, and if, in fact,
the Mortgagor does pay or reimburse the Mortgagee for payment of such tax
prior to the date on which payment is required by such notice. Upon the
Mortgage indebtedness becoming due and payable as heretofore provided, the
Mortgagor shall refrain from collecting and receiving all rents accruing as
aforesaid and upon notice from the Mortgagee all tenants shall thereafter
pay such rents to the Mortgagee, and any payment made otherwise shall not
discharge the obligations of such tenant, and the Mortgagee may immediately
cause this Mortgage to be foreclosed in the manner prescribed by law, and upon
commencement of foreclosure proceedings shall be entitled to have a receiver
appointed, whether the mortgaged premises are homestead or not and without
proof of any other ground for his appointment than the said default, to take
possession and charge of the mortgaged premises, to rent the same and receive
and collect the rents, issues and profits thereof, under direction of the
court, and any amount so collected by such receiver shall be applied under
direction of the court to the payment of any judgment rendered, or amounts
found due upon foreclosure of this Mortgage including the cost of collection
and attorneys' fees on any trial court and appellate levels; and, in the event
of any default or defaults in the payment of the indebtedness hereby
secured, or of any installment thereof, or of interest thereon, or in the
performance or observance of any of the terms, covenants or agreements herein
contained beyond any applicable grace period, the Mortgagee shall have the right
forthwith after any such default to enter upon and take possession of the said
mortgaged premises and to let said premises and receive the rents, issues and
profits thereof, and apply the same, after payment of all necessary charges and
expenses, on account of the indebtedness hereby secured.
The proceeds of said foreclosure shall be applied, first, to the expenses
incurred hereunder, including attorneys' fees on any trial court and appellate
levels for such services as may be rendered for the collection of said
indebtedness and the foreclosure of this Mortgage; second, to the payment of
whatever sum or sums the Mortgagee may have paid or become liable to pay in
carrying out the options, terms and stipulations of this Mortgage, together
with interest thereon; third, to the payment and satisfaction of the Notes;
and fourth, the surplus,if any, shall be paid to the Mortgagor or otherwise
as the court may decree.
The Mortgagor hereby agrees that in the event the Notes secured hereby
is placed in the hands of an attorney for collection, or in case the holder
shall become a party either as plaintiff or as defendant in any suit or legal
proceeding in relation to the property described or the lien created in this
Mortgage, or for the recovery or protection of said indebtedness, the Mortgagor
will pay on demand all costs and expenses arising thereof incurred by the
Mortgagee, including the Mortgagee's attorneys' fees (including such fees for
prosecuting or defending any appeal in any matter involving collection of this
obligation or foreclosure of the Mortgage securing same), all of Mortgagee's
court costs, and the cost of extending the abstract of title in the event of
foreclosure (or any other litigation which, in the judgment of the Mortgagee
requires the extending of the abstract of title), with interest thereon until
paid at the rate of nine and eighteen hundredths percent (9.18%) per annum.
The Mortgagor hereby assigns, transfers and conveys unto the Mortgagee,
its successors and assigns, the rents accrued and to accrue from all tenants in
occupancy of the mortgaged premises, or any part thereof, including rentals
and royalties under oil, gas and mineral leases, if any, during the lifetime
of this Mortgage, it being understood that as long as there is no default in
the performance or observance of any of the covenants or agreements herein
contained, the Mortgagor shall have the privilege of collecting and receiving
all rents accruing under the leases or contracts of tenancy for the mortgaged
premises or any part thereof. All leases, royalty agreements, etc., must be
executed pursuant to the provisions of paragraph 17 hereof.
It is expressly agreed by and between Mortgagor and Mortgagee that
if any provision, or any part thereof, of this Mortgage, the Notes secured
hereby, or any related loan document is prohibited, unenforceable or invalid
under the laws of any jurisdiction which has jurisdiction over same, including
those of the State of Florida, the provision or part thereof shall be
ineffective to the extent of such prohibition, unenforceability or invalidity
under the applicable law without affecting the enforceability or validity of
such provision in any such jurisdiction, and without invalidating the remainder
of such provision or other provisions of said documents.
IN WITNESS WHEREOF, the Mortgagor has caused the execution of this
Mortgage, by its authorized officers and caused its corporate seal to be
affixed this 2nd day of June, 1998.
Signed, sealed and delivered ORANGE-CO OF FLORIDA, INC.,
in the presence of: a Florida corporation
/s/Xxxx X. Xxxxxxxxx By: /s/Xxxx Xxxxxx
------------------------ ---------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx Xxxxxx
Title: President & COO
/s/X.X. Xxxxx III ATTEST: /s/Xxxx X. Xxxxxxxxxxx
----------------- ----------------------
Name: X. X. Xxxxx III Name: Xxxx X.Xxxxxxxxxxx
Title: Vice President & Chief Financial Officer
(Corporate Seal)
STATE OF FLORIDA )
)
COUNTY OF POLK )
I hereby certify that on this 2nd day of June, 1998, before me an officer
duly authorized in the State and County aforesaid to take acknowledgments,
personally appeared Xxxx Xxxxxx and Xxxx X. Xxxxxxxxxxx, respectively, the
President and Vice President/Chief Financial Officer of ORANGE-CO OF FLORIDA,
INC., a Florida corporation, on behalf of the corporation, who is personally
known to me/or who produced the following __________________________________
as identification, and they acknowledged before me that they executed the same
as their free act and deed on behalf of said corporation.
In witness whereof, I have hereunto set my hand and seal in the State
and County aforesaid as of this 2nd day of June, 1998.
/s/Xxxxxxx X. Xxxxxxx
----------------------
Notary Public, State of Florida
Name: Xxxxxxx X. Xxxxxxx
Commission No. CC670157
My commission expires: August 7, 2001
(Notary Seal)
JOINDER AND CONSENT
The undersigned does hereby join in and consent to the foregoing
Consolidated, Amended and Restated Florida Mortgage and Security Agreement
as of the 2nd day of June, 1998.
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
a Massachusetts corporation
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxxxx
------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. McFedtridge
Title: Investment Officer
/s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
COMMONWEALTH OF MASSACHUSETTS )
)
COUNTY OF SUFFOLK )
I hereby certify that on this 1st day of June, 1998, before me an officer
duly authorized in the State and County aforesaid to take acknowledgments,
personally appeared Xxxxx X. XxXxxxxxxx, as the Investment Officer for
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, on
behalf of the corporation, who produced the following a driver's license
of Massachusettes as identification, and he did acknowledge before me
that he executed the same as his free act and deed and the free act and
deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal in the State
and County aforesaid as of this 1st day of June, 1998.
/s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Notary Public, Commonwealth of Massachusetts
Commission No.:
My Commission expires: April 14, 2000
RENEWAL NOTE
$15,000,000.00 June 2nd, 1998
FOR VALUE RECEIVED, ORANGE-CO OF FLORIDA, INC. (the "Maker")
promises to pay to XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation ("Xxxx Xxxxxxx"), having an office at
Xxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or order, the
principal amount of FIFTEEN MILLION AND NO/100 DOLLARS
($15,000,000.00), or so much thereof as may actually be
disbursed, together with interest thereon from date at the rate
of seven and eighteen hundredths percent (7.18%) per annum until
maturity, payable as follows:
The principal sum and interest at the rate stated above on
the outstanding principal balance from time to time shall be
payable in quarterly installments due on September 1, 1998
and each successive December 1, March 1, June 1 and
September 1, during the term hereof. Each quarterly
installment of principal shall be in the amount of Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00)
commencing on September 1, 1998, and on the first day of
each December, March, June and September thereafter, during
the term of this Note, provided, however, that on the 1st
day of June, 2008, all of the principal hereof then
remaining unpaid, all accrued and unpaid interest thereon,
and any and all other interest or charge then due under the
provisions hereof or under the provisions of the
Consolidated, Amended and Restated Florida Mortgage &
Security Agreement of even date herewith (the "Mortgage")
securing this note (the "Note") shall be due and payable.
Nota Bene: State of Florida Documentary Stamp Tax in the
amount required by law has been paid and the
documentary stamps obtained upon such payment have been
affixed to that certain Loan Modification Agreement,
Notice of Advance and Restated Florida Mortgage and
Security Agreement dated the 8th day of November, 1979
and recorded in Official Records Book 1911, Page 1040
and amended and restated pursuant to that certain
Amended and Restated Florida Mortgage and Security
Agreement and Spreader Agreement, dated as of the 21st
day of April, 1993 and recorded in Official Records
Book 3226, Page 937, that certain Future Advance
Agreement dated as of April 21, 1993 and recorded in
Official Records Book 3226, Page 971, and that certain
Florida Second Mortgage and Security Agreement dated
August 13, 1996 and recorded in Official Records Book
3718, Page 176, all as recorded in the Public Records
of Polk County, Florida, as well as that certain
Florida Mortgage and Security Agreement of even date
herewith given by the Maker to Xxxx Xxxxxxx, recorded
or to be recorded in the Public Records of Polk County,
Florida.
When received by the holder hereof, the quarterly
installments of principal and interest due from time to time
during the term of this Note shall be applied by such holder
first to accrued and unpaid interest and next to principal. Any
other payments or prepayments of the indebtedness evidenced
hereby which are required or permitted hereunder and which are
received by the holder hereof while no default exists under the
provisions of this Note or under the provisions of the Mortgage
shall likewise be applied; provided, however, that such prepayments
of principal shall be applied to the installments thereof in the
inverse order of maturity.
Payment of principal, premium, if any, and interest on this
Note shall be made in lawful money (or, subject to collection, by
good check payable in such money) of the United States of America
at the principal office of the holder of this Note or at such
other place as the holder may direct.
After not less than seven (7) days prior written notice to
the holder of this Note, the Maker shall have the privilege of
prepaying in full the unpaid principal balance of this Note by
payment of such principal balance together with a premium
calculated pursuant to the prepayment calculation set forth in
subparagraph (a) below, or in part, in multiples of One Million
and No/100 Dollars ($1,000,000.00) together with a premium
calculated pursuant to the prepayment calculation set forth in
subparagraph (b) below, unless the holder has, by virtue of the
existence of a default under the provisions of this Note, the
provisions of the Mortgage securing this Note, or the provisions
of any instruments now or hereafter evidencing or securing this
indebtedness, accelerated the maturity date of this Note, in
which case the holder shall be entitled to collect the full
unpaid balance of this Note together with the premium set forth
in (c) below:
(a) a sum equal to the net present value (if positive) of
the remaining payments of principal and interest,
discounted at a rate equal to the sum of: (i) the
highest rate for United States Treasury Securities (as
published in the Wall Street Journal or other business
publications of general circulation five (5) business
days prior to the date of said prepayment) with a
maturity date most closely matching the remaining years
of the term of this Note, plus (ii) one half of one
percent (0.50%);
(b) consistent with the concepts and provisions of
subparagraph (a) above, a sum equal to the present
values of a proportionate amount of each remaining
future contractual quarterly installment of principal
and interest due for the remaining term of this Note,
said proportionate amount to be determined by
multiplying said remaining installments by a fraction,
the numerator of which shall be the amount of the
partial prepayment and the denominator of which shall
be the principal balance of this Note remaining unpaid
immediately prior to such partial prepayment, and the
sum of said present values of said proportionate amount
as so determined to be discounted in the manner
provided in subparagraph (a) above;
(c) a sum equal to five percent (5%) of the outstanding
unpaid principal balance of this Note upon the occasion
of the acceleration of the maturity date hereof.
In the event that the yield rate on publicly traded United
States Treasury Securities is not obtainable, then the nearest
equivalent issue or index shall be selected, at the sole
discretion and determination of the holder hereof, and used to
calculate the prepayment premium.
The Maker expressly understands and agrees that the
prepayment premium set forth in (c) above shall be due to and
collectible and enforceable by the holder hereof upon the
occasion of the holder's exercise of its acceleration option
hereafter set forth; that said holder will suffer damages as a
result of any such acceleration; that the prepayment premium set
forth in (c) above is directly related to such damages which the
holder will suffer as a result of the acceleration and is fair
and reasonable under the circumstances; and that the
enforceability of such prepayment premium upon any such
acceleration was negotiated by and between the Maker and said
holder and forms an integral part of the benefits which have been
bargained by said holder in its making of the loan evidenced
hereby. The Maker further understands and agrees that (i)
accrued and unpaid interest at the applicable rate or rates set
forth herein shall be due to the holder in connection with any
exercise by the Maker of its prepayment privilege; (ii) the
making of any partial prepayments of principal pursuant to such
prepayment privilege shall not excuse the Maker from paying, when
due, the next consecutive quarterly installment of principal and
interest; and (iii) that the amount of said next consecutive
quarterly installment as well as those for the years remaining in
the balance of the term hereof may, of necessity, change.
It is agreed that upon any default in the payment of
principal, interest or money owing for advancements made by the
holder hereof, or default in the performance or observance of any
of the covenants or agreements herein contained, contained in the
Mortgage securing this Note, or contained in any instrument now
or hereafter evidencing or securing this indebtedness, the
principal of this Note then remaining unpaid shall, automatically
and immediately, without regard to the exercise or nonexercise of
the acceleration option of the holder hereof as hereinafter set
forth, and without notice or demand, bear interest at the rate of
nine and eighteen hundredths percent (9.18%) per annum while such
default exists, and the holder hereof may apply payments received
on any amounts due hereunder or under the terms of any instrument
now or hereafter evidencing or securing this indebtedness as said
holder may determine.
It is further agreed that upon the occasion of any default
set forth in the preceding paragraph, the principal then
remaining unpaid, all interest then accrued thereon, and any and
all other sums or charges then due to the holder pursuant to the
terms hereof or of the Mortgage or any other instrument now or
hereafter evidencing or securing this indebtedness, shall, at the
option of the holder hereof, become immediately due and payable
without notice or demand, anything herein or in said Mortgage or
other instrument to the contrary notwithstanding, and no omission
on the part of the holder to exercise said option when entitled
so to do shall be construed as a waiver of such right or as a
waiver of the holder's right to the automatic additional interest
during default as hereinabove provided.
In the event this Note is placed in the hands of an attorney
for collection, or in case the holder shall become a party either
as plaintiff or as defendant in any suit or legal proceeding in
relation to the property described in the Mortgage, or arising
out of holder accepting the Mortgage, or for the recovery or
protection of said indebtedness, the Maker hereof will repay on
demand all costs and expenses arising therefrom, including
attorneys' fees (including such fees for prosecuting or defending
any appeal in any matter involving the Mortgage, the collection
of this obligation or the foreclosure of the Mortgage securing
same), all court costs, and the cost of extending the abstract of
title in the event of foreclosure, with interest thereon until
paid at the rate of nine and eighteen hundredths percent (9.18%)
per annum.
Nothing herein contained, nor any transaction related
hereto, shall be construed or so operate as to require the Maker
or any person liable for repayment of the indebtedness evidenced
hereby, to pay interest, or charges in the nature of interest, at
a greater rate than is now lawful in such case to contract for,
or to make any payment, or to do any act contrary to law. The
holder shall not be entitled to collect any interest, or charges
in the nature of interest, which is in excess of the legal rate
and the Maker shall be entitled to a refund of any amount
collected hereunder which may be determined to be excessive or
not permitted by law.
The Maker and guarantor hereof and all others who may become
liable for all or any part of this obligation severally waive
presentment for payment, protect and notice of protest and of
nonpayment and consent to any number of renewals or extensions of
time of payment hereof. Any such renewals or extensions may be
made without notice to any of said parties and without affecting
their liability.
BY THEIR EXECUTION AND DELIVERY HEREOF, THE MAKER AND THE
HOLDER, INTENDING TO BIND THEMSELVES AND THEIR RESPECTIVE HEIRS,
PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, DO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT WHICH
EACH HAS OR MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LEGAL
ACTION, PROCEEDING, SUIT, LITIGATION, CLAIM, OR COUNTERCLAIM
WHICH (A) IS BASED UPON THIS NOTE, THE MORTGAGE SECURING THIS
NOTE, AND ANY OTHER DOCUMENT NOW OR HEREAFTER EVIDENCING OR
SECURING THE INDEBTEDNESS OWED TO THE HOLDER OF THIS NOTE (SAID
NOTE, MORTGAGE, AND OTHER DOCUMENTS BEING HEREAFTER COLLECTIVELY
REFERRED TO AS THE "LENDER'S LOAN DOCUMENTS"); (B) IS BASED UPON
ANY PARTICULAR PROVISION OR PROVISIONS OF SAID LENDER'S LOAN
DOCUMENTS; (C) ARISES OUT OF, UNDER, OR IN CONNECTION WITH SAID
LENDER'S LOAN DOCUMENTS OR ANY PROVISION THEREOF; OR (D) ARISES
OUT OF, IN CONNECTION WITH, OR IS BASED UPON ANY CONDUCT, COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF THE MAKER OR OF THE HOLDER RESPECTING ANY
MATTER ADDRESSED OR CONTEMPLATED IN SAID LENDER'S LOAN DOCUMENTS.
THIS WAIVER IS INTENDED TO BE APPLICABLE THROUGHOUT THE PERIOD OF
TIME IN THE RECENT PAST WHEN THE LOAN EVIDENCED BY THE LENDER'S
LOAN DOCUMENTS WAS NEGOTIATED, TO THE PRESENT TIME, AND AT ALL
TIMES IN THE FUTURE UNTIL ALL APPLICABLE STATUTES OF LIMITATION
RESPECTING THE BRINGING OF LEGAL ACTIONS AND CLAIMS COVERED
HEREBY SHALL HAVE RUN, NOTWITHSTANDING THE PAYMENT IN FULL OF THE
INDEBTEDNESS EVIDENCED OR SECURED BY THE LENDER'S LOAN DOCUMENTS
AND THE DISCHARGE OR SATISFACTION THEREOF. THE MAKER AND THE
HOLDER DO HEREBY FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT
THIS WAIVER OF RIGHT TO TRIAL BY JURY (I) FORMS AN INTEGRAL PART
OF THE CONSIDERATION FOR THEIR MAKING, ENTERING INTO, OR
ACCEPTING THE LENDER'S LOAN DOCUMENTS, (II) CONSTITUTES A
MATERIAL INDUCEMENT TO SAID MAKER AND THE HOLDER FOR THE
CONSUMMATION OF THE MORTGAGE LOAN TRANSACTION DESCRIBED IN THIS
NOTE, AND (III) WAS KNOWINGLY BARGAINED FOR AND VOLUNTARILY
ENTERED INTO BY SAID MAKER AND HOLDER. THE MAKER BY EXECUTING
AND DELIVERING THIS NOTE AND THE HOLDER BY ACCEPTING THIS NOTE
HAVE EXPRESSED THEIR UNDERSTANDING AND AGREEMENT REGARDING THE
FOREGOING WAIVER OF TRIAL BY JURY.
This Note is secured by that certain Consolidated, Amended
and Restated Florida Mortgage and Security Agreement of even date
herewith recorded/to be recorded in the Public Records of Polk
County, Florida, made by the Maker to Xxxx Xxxxxxx encumbering
personal property and fee simple interest in real property
situated in Polk County, in the State of Florida, and this Note
is to be governed by and construed in accordance with the laws of
the State of Florida.
This Note combines and renews a certain Renewal Promissory
Note given by the Maker to Xxxx Xxxxxxx dated as of April 21,
1993, in the original principal amount of $12,000,000.00, of
which the unpaid principal balance is $6,000,000.00, and a Demand
Promissory Note given by the Maker to Xxxx Xxxxxxx of even date
herewith in the principal amount of $9,000,000.00, and restates
the terms of the Renewal Promissory Note and the Demand
Promissory Note in their entirety. Documentary stamps due on the
Renewal Promissory Note have been paid and affixed to the Loan
Modification Agreement, Notice of Advance and Restated Florida
Mortgage and Security Agreement given by the Maker to Xxxx
Xxxxxxx, dated November 8, 1979, and recorded in Official Records
Book 1911, Page 1040 of the Public Records of Polk County,
Florida, and amended and restated pursuant to that certain
Amended and Restated Florida Mortgage and Security Agreement and
Spreader Agreement, dated as of the 21st day of April, 1993, and
recorded in Official Records Book 3226, Page 937, and that
certain Future Advance Agreement given by Maker to Xxxx Xxxxxxx,
dated as of April 21, 1993 and recorded in Official Records Book
3226, Page 971, Public Records of Polk County, Florida, while the
documentary stamps due on the Demand Promissory Note have been
paid and affixed to the Florida Mortgage and Security Agreement
of even date hereof, recorded/to be recorded in the Public Records
of Polk County, Florida.
ORANGE-CO OF FLORIDA, INC.
By: /s/Xxxx Xxxxxx
--------------
Name: Xxxx Xxxxxx
Title: President & COO
ATTEST:
/s/Xxxx X Xxxxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President &
Chief Financial Officer
(CORPORATE SEAL)
