Prepared by and return to: #99052280
Xxxxxx X. Xxxxxxxxxx, Esquire OR BK 04215 PG 0238
Lowndes, Drosdick, Doster, RECORDED 04/22/99 03:26 PM
Xxxxxx & Xxxx, P.A. XXXXXXX X. XXXXX CLERK OF COURT
Post Office Box 2809 POLK COUNTY
Orlando, Florida 32802-2809 DOC TAX PD (F.S.201.08) 26,950.00
DEPUTY CLERK K SEARS
Xxxxx Xxxxxxxx Law Firm
000 X. Xxxxxxxx Xx. Xxx 0000 Borrower Name: Agree Limited Partnership
Tampa, FL 33602 Project Name: North Lakeland Plaza
THIS ASSUMPTION AGREEMENT, MORTGAGE MODIFICATION AND AMENDED AND RESTATED
MORTGAGE AND SECURITY AGREEMENT CONSTITUTES AN ASSUMPTION OF, AMENDS AND
RESTATES THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT FROM NORTH LAKELAND
PLAZA, A MICHIGAN COPARTNERSHIP TO AND IN FAVOR OF MICHIGAN NATIONAL BANK OF
DETROIT, A NATIONAL BANKING ASSOCIATION, DATED APRIL 15, 1986, AS RECORDED
APRIL 17, 1986 IN OFFICIAL RECORDS BOOK 2413, PAGE 945, AMONG THE PUBLIC
RECORDS OF POLK COUNTY, FLORIDA, AS SUPPLEMENTED BY THAT CERTAIN ADDITIONAL
MORTGAGE, FROM NORTH LAKELAND PLAZA, A MICHIGAN CO-PARTNERSHIP TO AND IN
FAVOR OF MICHIGAN NATIONAL BANK, DATED DECEMBER 17, 1987 AND RECORDED
DECEMBER 18, 1987 IN OFFICIAL RECORDS BOOK 2589, PAGE 1169, AMONG THE PUBLIC
RECORDS OF POLK COUNTY, FLORIDA, AS CONSOLIDATED, MODIFIED AND EXTENDED BY
THAT CERTAIN CONSOLIDATION, MODIFICATION AND EXTENSION AGREEMENT DATED
DECEMBER 17, 1987 AND RECORDED DECEMBER 18, 1987 IN OFFICIAL RECORDS BOOK
2589, PAGE 1172 AND RERECORDED JANUARY 13, 1988 IN OFFICIAL RECORDS BOOK
2595, PAGE 2117, PUBLIC RECORDS OF POLK COUNTY, FLORIDA AS ASSIGNED BY THAT
CERTAIN ASSIGNMENT OF MORTGAGE AND LOAN DOCUMENTS FROM MICHIGAN NATIONAL
BANK, FORMERLY KNOWN AS MICHIGAN NATIONAL BANK OF DETROIT, A NATIONAL BANKING
ASSOCIATION TO AND IN FAVOR OF THE TRAVELERS INDEMNITY COMPANY, A CONNECTICUT
CORPORATION ("TRAVELERS"), DATED DECEMBER 15, 1987 AND RECORDED DECEMBER 18,
1987 IN OFFICIAL RECORDS BOOK 2589, PAGE 1203, AMONG THE PUBLIC RECORDS OF
POLK COUNTY, FLORIDA, AS COLLATERALLY ASSIGNED BY TRAVELERS TO SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION ("SHAWMUT") BY THAT CERTAIN ASSIGNMENT OF
MORTGAGE AS COLLATERAL SECURITY DATED NOVEMBER 15, 1993 AND RECORDED MARCH 7,
1994 IN OFFICIAL RECORDS BOOK 3357, PAGE 610, PUBLIC RECORDS OF POLK COUNTY,
FLORIDA (WHICH ASSIGNMENT OF MORTGAGE AS COLLATERAL SECURITY WAS RELEASED BY
THAT CERTAIN RELEASE OF COLLATERAL ASSIGNMENTS BY XXXXXXX DATED MARCH 31,
1999 AND RECORDED IN THE PUBLIC RECORDS OF POLK COUNTY, FLORIDA), AS MODIFIED
BY THAT CERTAIN MORTGAGE MODIFICATION AGREEMENT FROM NORTH LAKELAND PLAZA, A
MICHIGAN CO- PARTNERSHIP TO AND IN FAVOR OF THE TRAVELERS INDEMNITY COMPANY,
A CONNECTICUT CORPORATION DATED MARCH 28, 1994, AS RECORDED ON APRIL 6, 1994,
IN OFFICIAL RECORDS BOOK 3371, PAGE 931, AMONG THE PUBLIC RECORDS OF POLK
COUNTY, FLORIDA, WHICH MODIFICATION WAS COLLATERALLY ASSIGNED BY TRAVELERS TO
SHAWMUT BY THAT CERTAIN ASSIGNMENT OF MORTGAGE MODIFICATION AGREEMENT AS
COLLATERAL SECURITY DATED JULY 20, 1994 AND RECORDED AUGUST 8, 1994 IN
OFFICIAL RECORDS BOOK 3423, PAGE 2123, AMONG THE PUBLIC RECORDS OF POLK
COUNTY, FLORIDA (WHICH ASSIGNMENT OF MORTGAGE MODIFICATION AGREEMENT AS
COLLATERAL SECURITY WAS RELEASED BY THAT CERTAIN RELEASE OF COLLATERAL
ASSIGNMENTS BY XXXXXXX DATED MARCH 31, 1999 AND RECORDED IN THE PUBLIC
RECORDS OF POLK COUNTY, FLORIDA), AS ASSIGNED AND ENDORSED TO LENDER BY THE
ASSIGNMENT OF NOTE AND MORTGAGE AGREEMENTS REFERRED TO HEREIN, AND SECURES
THE RENEWAL NOTE REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF SEVEN
MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($7,700,000.00) (THE
"NOTE"). THE NOTE AMENDS, RESTATES AND RENEWS (A) THAT CERTAIN REAL ESTATE
MORTGAGE NOTE FROM NORTH LAKELAND PLAZA, A MICHIGAN CO- PARTNERSHIP TO AND IN
FAVOR OF MICHIGAN NATIONAL BANK OF DETROIT, A NATIONAL BANKING ASSOCIATION,
DATED APRIL 15,1986, IN THE PRINCIPAL AMOUNT OF $9,000,000.00, AS
SUPPLEMENTED BY THAT CERTAIN ADDITIONAL NOTE FROM NORTH LAKELAND PLAZA, A
MICHIGAN CO-PARTNERSHIP TO AND IN FAVOR OF MICHIGAN NATIONAL BANK, A NATIONAL
BANKING ASSOCIATION, DATED DECEMBER 17, 1987, IN THE PRINCIPAL AMOUNT OF
$550,000.00, AS SUBSTITUTED BY THAT CERTAIN SUBSTITUTE AND CONSOLIDATION NOTE
FROM NORTH LAKELAND PLAZA, A MICHIGAN CO-PARTNERSHIP TO AND IN FAVOR OF
MICHIGAN NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, DATED DECEMBER 17,
1987, IN THE PRINCIPAL AMOUNT OF $9,550,000.00, AS AMENDED BY THAT CERTAIN
AMENDED AND RESTATED NOTE, FROM NORTH LAKELAND PLAZA, A MICHIGAN
CO-PARTNERSHIP TO AND IN FAVOR OF THE TRAVELERS INDEMNITY COMPANY, A
CONNECTICUT CORPORATION, DATED MARCH 28, 1994, IN THE PRINCIPAL AMOUNT OF
$8,325,000.00.
THE RENEWAL NOTE IS EXEMPT FROM FLORIDA INTANGIBLE TAXES
PURSUANT TO FLORIDA STATUTES SECTION 199.145.
ASSUMPTION AGREEMENT
MORTGAGE MODIFICATION AND AMENDED
AND RESTATED MORTGAGE AND
SECURITY AGREEMENT
THIS ASSUMPTION AGREEMENT MORTGAGE MODIFICATION AND
AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT is made,
executed and delivered as of this day of March 31st, 1999, by AGREE LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is 00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx, 00000 (hereinafter referred
to as "Borrower"), to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an
Ohio corporation, having its principal office at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000-2220, Attention: Real Estate Investment Department, 34T,
or at such other place either within or without the State of Ohio as it may
from time to time designate, and any subsequent holder(s) hereof (hereinafter
referred to as "Lender");
THAT WHEREAS, Xxxxxx is the owner and holder of that certain
Mortgage and Security Agreement from North Lakeland Plaza, a Michigan
co-partnership to and in favor of Michigan National Bank of Detroit, a
national banking association, dated April 15, 1986, as recorded April 17,
1986 in Official Records Book 2413, Page 945, among the Public Records of
Polk County, Florida, as supplemented by that certain Additional Mortgage,
from North Lakeland Plaza, a Michigan co- partnership to and in favor of
Michigan National Bank, dated December 17, 1987 and recorded December 18,
1987 in Official Records Book 2589, Page 1169, among the Public Records of
Polk County, Florida, as consolidated, modified and extended by that certain
Consolidation, Modification and Extension Agreement dated December 17, 1987
and recorded December 18, 1987 in Official Records Book 2589, Page 1172 and
rerecorded January 13, 1988 in Official Records Book 2595, Page 2117, Public
Records of Polk County, Florida as assigned by that certain Assignment of
Mortgage and Loan Documents from Michigan National Bank, formerly known as
Michigan National Bank of Detroit, a national banking association to and in
favor of The Travelers Indemnity Company, a Connecticut corporation
("Travelers"), dated December 15, 1987 and recorded December 18, 1987 in
Official Records Book 2589, Page 1203, among the Public Records of Polk
County, Florida, as collaterally assigned by Travelers to Shawmut Bank
Connecticut, national association ("Shawmut") by that certain Assignment of
Mortgage as Collateral Security dated November 15, 1993 and recorded March 7,
1994 in Official Records Book 3357, Page 610, Public Records of Polk County,
Florida (which Assignment of Mortgage as Collateral Security was released by
that certain Release of Collateral Assignments by Shawmut dated March 31,
1999 and recorded immediately prior hereto in the Public Records of Polk
County, Florida), as modified by that certain Mortgage Modification Agreement
from North Lakeland Plaza, a Michigan co-partnership to and in favor of The
Travelers Indemnity Company, a Connecticut corporation dated March 28, 1994,
as recorded on April 6, 1994, in Official Records Book 3371, Page 931, among
the public records of Polk County, Florida, which modification was
collaterally assigned by Travelers to Shawmut by that certain Assignment of
Mortgage Modification Agreement as Collateral Security dated July 20, 1994
and recorded August 8, 1994 in Official Records Book 3423, Page 2123, among
the public records of Polk County, Florida (which Assignment of Mortgage
Modification Agreement as Collateral Security was released by that certain
Release of Collateral Assignments by Shawmut dated March 31, 1999 and
recorded immediately prior hereto in the Public Records of Polk County,
Florida) (hereinafter referred to as the "Original Mortgage"); and
WHEREAS, the Original Mortgage secures that certain that certain
Real Estate Mortgage Note from NLP, to and in favor of MNDB, dated April
15, 1986, in the principal amount of $9,000,000.00, as supplemented by that
certain Additional Note from NLP to and in favor of MNB dated December 17,
1987, in the principal amount of $550,000.00, as substituted by that certain
Substitute and Consolidation Note from NLP to and in favor of MNB dated
December 17, 1987, in the principal amount of $9,550,000.00, as amended by
that certain Xxxxxxx and Restated Note, from NLP to and in favor of Travelers
dated March 28, 1994, in the principal amount of $8,325,000.00 (the "Original
Note");
WHEREAS, the property encumbered by the Original Mortgage and more
particularly described on Exhibit A, attached hereto (the "Property") was
subsequently conveyed to Borrower pursuant to that certain Covenant Deed from
NLP to Borrower dated April 22, 1994 and recorded April 29, 1994 in Official
Records Book 3382, Page 0081, Public Records of Polk County, Florida and
Borrower accepted the Property subject to the Original Mortgage;
WHEREAS, NLP also executed that certain Assignment of Leases, Rents
and Profits to and in favor of MNBD dated April 15, 1986 and recorded April
17, 1986 in Official Records Book 2413, Page 964, among the Public Records of
Polk County, Florida, as assigned by that certain Assignment of Mortgage and
Loan Documents from MNB to and in favor of Travelers dated December 15, 1987
(the "Original Assignment") the Original Note, the Original Mortgage, the
Original Assignment and all other loan documents executed in connection there
with are hereinafter referred to collectively as the "Original Loan
Documents";
WHEREAS, the Original Loan Documents were subsequently assigned and
transferred to Lender pursuant to that certain Assignment of Note and
Mortgage Agreements from Travelers to Lender dated on or about the date
hereof and recorded concurrently herewith; and
WHEREAS, the Original Loan Documents are now held by Xxxxxx; and
whereas the Original Note has a current principal balance in the original
principal amount of SEVEN MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS
($7,700,000.00); and
WHEREAS, Borrower desires to assume each and every obligation of NLP
under the Original Note, the Original Mortgage and the Original Assignment of
Rents; and
WHEREAS, Xxxxxxxx and Lender desire to modify and amend the Original
Mortgage in order to reflect that the Original Mortgage secures the Note, and
to modify and amend certain other terms of the Original Mortgage;
NOW THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and for and in consideration of the sum of TEN AND
NO/100 DOLLARS ($10.00) the receipt and sufficiency of which are hereby
acknowledged, Borrower and Xxxxxx hereby agree as follows:
1. All of the foregoing recitations are true and correct and are
hereby incorporated herein and made a part hereof.
2. Borrower hereby assumes each and every obligation of NLP under
the Original Loan Documents, whenever accruing, including, particularly, but
without limitation, the obligations of the Original Note and Borrower agrees
to perform all obligations of NLP under the Original Loan Documents and to
pay to Lender the sums due and to become due under the Original Loan
Documents as fully as if Borrower had executed the Original Loan Documents or
the date thereof as Original Borrower.
3. Under no circumstances shall this instrument or any portion
hereof constitute or be deemed to constitute a novation of the Original
Mortgage. The Original Mortgage, as hereby amended and restated, shall secure
the Note with the same priority of lien as if this instrument had been
executed and recorded at the same time as the Original Mortgage was
originally executed and recorded.
4. Borrower hereby covenants, stipulates, agrees and acknowledges
that the obligation of Borrower to repay to Lender the Note is hereby
declared to be secured by the Original Mortgage, as amended and restated
hereby, in the same manner and to the same extent as if the Note was made and
executed on the date that the Original Mortgage was originally executed and
delivered and that nothing herein contained shall diminish or in any way or
manner limit the right of Lender to make additional advances to the Borrower
pursuant to the provisions of Paragraph 37 of the Original Mortgage, as
amended and restated hereby.
5. Borrower hereby acknowledges, represents and confirms unto Lender
that (A) it does not now have and at no prior time had any defenses
(including without limitation, the defense of usury), claims, counterclaims,
cross-actions or equities, or rights of rescission, set off, abatement, or
diminution, with respect to the Original Loan Documents or the Note or the
Mortgage (as hereinafter defined) or any other loan documents executed in
connection therewith, and that it has at no time asserted any such defense,
claim or right of rescission, set off, abatement or diminution with respect
thereto, and if any such defense, claim counterclaim, cross-action or equity,
or rights of rescission, set off, abatement or diminution do exist the same
are hereby waived and released; (B) the Original Loan Documents are valid,
binding and free from any infirmity of any nature whatsoever, and are
enforceable in accordance with their respective terms; (C) the Original
Mortgage constitutes a valid first lien against the Property (defined
herein); and (D) no payments of interest or any other charges have been made
to Lender which would result in the computation or earning of interest in
excess of the maximum legal rate of interest permitted under the laws
applicable thereto.
6. The terms and conditions of the Mortgage are hereby amended and
superseded in their entirety; and the Original Mortgage is hereby restated in
its entirety (the Original Mortgage as so amended and restated being herein
referred to as the "Mortgage") as follows:
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage") is made, executed and delivered as of the day and year first
written above, by AGREE LIMITED PARTNERSHIP, a Delaware limited partnership,
whose address is 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx,
00000 (hereinafter referred to as "Borrower"), to and in favor of NATIONWIDE
LIFE INSURANCE COMPANY, an Ohio corporation, having its principal office at
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-2220, Attention: Real Estate
Investment Department, 34T, or at such other place either within or without
the State of Ohio as it may from time to time designate, and any subsequent
holder(s) hereof (hereinafter referred to as "Lender");
W I T N E S S E T H:
WHEREAS, Borrower is justly indebted to Lender in the principal sum
of SEVEN MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($7,700,000.00)
with interest thereon, which indebtedness is evidenced and represented by
that certain Renewal Note of even date herewith in the sum of SEVEN MILLION
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($7,700,000.00) payable to
Nationwide Life Insurance Company (said Renewal Note being hereinafter
referred to as the "Note"), which Note shall be due and payable on April 1,
2013 if the Modified Rate (as defined in the Note) is accepted by Borrower
and shall be due and payable on April 1, 2006 if the Modified Rate is
rejected by Borrower; and
WHEREAS, Xxxxxx, as a condition precedent to the extension of credit
and the making of the loan evidenced by the Note, has required that Borrower
provide Lender with security for the repayment of the indebtedness evidenced
by the Note as well as for the performance, observance and discharge by
Borrower of various covenants, conditions and agreements made by Borrower to,
with, in favor of and for the benefit of Lender with respect to said
indebtedness and such security;
NOW THEREFORE, in consideration of and in order to secure the
repayment of the indebtedness evidenced and represented by the Note, together
with interest on such indebtedness, as well as the payment of all other sums
of money secured hereby, as hereinafter provided, and also to secure the
observance, performance and discharge by Borrower of all covenants,
conditions and agreements set forth in the Note, this Mortgage and in all
other documents and instruments executed and delivered by Borrower to and in
favor of Lender for the purpose of further securing the repayment of the
indebtedness evidenced and represented by the Note, and in order to charge
the properties, interests and rights hereinafter described with such payment,
observance, performance and discharge, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
Xxxxxxxx does hereby grant, bargain, sell, alien, remise, release, convey,
assign, transfer, pledge, deliver, set over, hypothecate, warrant and confirm
unto Lender, its successors and assigns forever, all of Xxxxxxxx's right,
title and interest in and to the following described properties, rights and
interests and all replacements thereof, substitutions therefor and additions
thereto (all of which are hereinafter together referred to as the
"Property"), to wit:
ALL THAT certain piece, parcel or tract of land or real property of
which Xxxxxxxx is now seized and in actual or constructive
possession, situate in Polk County, Florida, more particularly
described on Exhibit A attached hereto and by this reference made a
part hereof (hereinafter referred to as the "Real Property");
TOGETHER WITH all buildings, structures and other improvements of
any kind, nature or description now or hereafter erected, constructed, placed
or located upon said Real Property (which buildings, structures and other
improvements are hereinafter sometimes together referred to as the
"Improvements"), including, without limitation, any and all additions to,
substitutions for or replacements of such Improvements;
TOGETHER WITH all mineral, royalties, gas rights, water, water
rights, water stock, flowers, shrubs, lawn plants, crops, trees, timber and
other emblements now or hereafter located on, under or above all or any part
of the Real Property;
TOGETHER WITH all and singular, the tenements, hereditaments, strips
and gores, rights-of-way, easements, privileges and other appurtenances now
or hereafter belonging or in any way appertaining to the Real Property,
including, without limitation, all right, title and interest of the Borrower
in any after-acquired right, title, interest, remainder or reversion, in and
to the beds of any ways, streets, avenues, roads, alleys, passages and public
places, open or proposed, in front of, running through, adjoining or adjacent
to said Real Property (hereinafter sometimes together referred to as the
"Appurtenances");
TOGETHER WITH any and all leases, contracts, rents, royalties,
issues, revenues, profits, proceeds, deposits, income and other benefits,
including accounts receivable, of, accruing to or derived from said Real
Property, Improvements and Appurtenances and any business or enterprise
presently situated or hereafter operated thereon and therewith (hereinafter
sometimes referred to as the "Rents");
TOGETHER WITH any and all awards, payments or settlements, including
interest thereon, and the right to receive the same, as a result of (a) the
exercise of the right to eminent domain, (b) the alteration of the grade of
any street, (c) any other injury, damage or casualty to, taking of, or
decrease in the value of, the Property or (d) proceeds of insurance awards,
to the extent of all amounts which may be secured by this Mortgage at the
date of any such award or payment including but not limited to the Reasonable
Attorneys' Fees (as hereinafter defined), costs and disbursements incurred by
Lender in connection with the collection of such award or payment;
AS WELL AS all the right, title and interest of Borrower in and to
all fixtures, goods, inventory, chattels, construction supplies and
materials, fittings, furniture, furnishings, equipment, machinery, apparatus,
appliances, and other items of personal property, whether tangible or
intangible, of any kind, nature or description, whether now owned or
hereafter acquired by Borrower, including, without limitation, all signs and
displays; all heating, air conditioning, water, gas, lighting, incinerating,
and power equipment; all engines, compressors, pipes, pumps, tanks, motors,
conduits, wiring, and switchboards; all plumbing, lifting, cleaning, fire
prevention, fire extinguishing, sprinkling, refrigerating, ventilating, waste
removal and communications equipment and apparatus; all boilers, furnaces,
oil burners, vacuum cleaning systems, elevators, and escalators; all stoves,
ovens, ranges, disposal units, dishwashers, water heaters, exhaust systems,
refrigerators, cabinets and partitions; all rugs, attached floor coverings,
curtains, rods, draperies, and carpets; all building materials, tools,
shades, awnings, blinds, screens, storm doors and windows; and all other
general intangibles, inventory, contract rights, accounts receivable, chattel
paper, documents and business records, of every kind, including, without
limitation, any and all licenses, permits, franchises, trademarks,
tradenames, service marks, or logos; any of which is, are or shall hereafter
be located upon, attached, affixed to or used or useful, either directly or
indirectly, in connection with the complete and comfortable use, occupancy
and operation of the Real Property, Improvements and Appurtenances as a
retail project, or any other business enterprise or operation as may
hereafter be conducted upon or within said Real Property, Improvements and
Appurtenances, as well as the proceeds thereof or therefrom regardless of
form (hereinafter sometimes referred to as the "Fixtures and Personal
Property", which term expressly excludes any toxic wastes or substances
deemed hazardous under federal, state or local laws). Borrower hereby
expressly grants to Lender a present security interest in and lien and
encumbrance upon said Fixtures and Personal Property;
TO HAVE AND TO HOLD the foregoing Property and the rights hereby
granted for the use and benefit of Xxxxxx, its successors and assigns in fee
simple forever;
AND Borrower covenants and warrants with and to Lender that Borrower
is indefeasibly seized of the Property and has good right, full power, and
lawful authority to convey and encumber all of the same as aforesaid; that
Borrower hereby fully warrants the title to the Property and will defend the
same and the validity and priority of the lien and encumbrance of this
Mortgage against the lawful claims of all persons whomsoever; and Borrower
further warrants that the Property is free and clear of all liens and
encumbrances of any kind, nature or description, save and except only (with
respect to said Real Property, Improvements and Appurtenances) for real
property taxes for years subsequent to 1998 (which are not yet due and
payable) and those matters set forth in the title insurance policy issued to
Lender insuring the first lien priority of this Mortgage (hereinafter
referred to as the "Permitted Exceptions");
PROVIDED ALWAYS, however, that if Xxxxxxxx shall pay unto Lender the
indebtedness evidenced by the Note, and if Borrower shall duly, promptly and
fully perform, discharge, execute, effect, complete and comply with and abide
by each and every one of the agreements, conditions and covenants of the
Note, this Mortgage and all other documents and instruments executed as
further evidence of or as security for the indebtedness secured hereby, then
this Mortgage and the estates and interests hereby granted and created shall
cease, terminate and be null and void, and shall be discharged of record at
the expense of Borrower, which expense Borrower agrees to pay;
AND Xxxxxxxx, for the benefit of Xxxxxx, and its successors and
assigns, does hereby expressly covenant and agree:
1. Payment of Principal and Interest. To pay the principal of the
indebtedness evidenced by the Note, together with all interest thereon, in
accordance with the terms of the Note, promptly at the times, at the place
and in the manner that said principal and interest shall become due, and to
promptly and punctually pay all other sums required to be paid by Borrower
pursuant to the terms of the Note, this Mortgage, and all other documents and
instruments executed as further evidence of, as additional security for or in
connection with the indebtedness evidenced by the Note and secured by this
Mortgage (hereinafter together referred to as the "Loan Documents").
2. Performance of Other Obligations. To perform, comply with and
abide by each and every one of the covenants, agreements and conditions
contained and set forth in the Note, this Mortgage and the other Loan
Documents and to comply with all laws, ordinances, rules, regulations and
orders of governmental authorities now or hereafter affecting the Property or
requiring any alterations or improvements to be made thereon, and perform all
of its obligations under any covenant, condition, restriction or agreement
affecting the Property and to insure that at all times the Property
constitutes one or more legal lots capable of being conveyed without
violation of any applicable subdivision or platting laws, ordinances, rules
or regulations, or other laws relating to the division or separation of real
property.
3. Preservation and Maintenance of Property; Accessibility;
Hazardous Waste. To keep all Improvements now existing or hereafter erected
on the Real Property in good order and repair and not to do or permit waste,
impairment or deterioration thereof or thereon, nor to alter, remove or
demolish any of said Improvements or any Fixtures or Personal Property
attached or appertaining thereto, without the prior written consent of
Lender, nor to initiate, join in or consent to any change in any private
restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses which may be made of the Property
or any part thereof, nor to do or permit any other act whereby the Property
shall become less valuable, be used for purposes contrary to applicable law
or used in any manner which will increase the premium for or result in a
termination or cancellation of the insurance hereinafter required to be kept
and maintained on the Property. In furtherance of, and not by way of
limitation upon, the foregoing covenant, Borrower shall effect such repairs
as Lender may reasonably require, and from time to time make all needful and
proper replacements so that the Improvements, Appurtenances, Fixtures and
Personal Property will, at all times, be in good condition, fit and proper
for the respective purposes for which they were originally erected or
installed.
Borrower at all times shall maintain the Property in full compliance
with all applicable federal, state or municipal laws, ordinances, rules and
regulations currently in existence or hereinafter enacted or rendered
governing accessibility for the disabled or handicapped, including, but not
limited to, The Architectural Barriers Act of 1968, The Rehabilitation Act of
1973, The Fair Housing Act of 1988, The Americans with Disabilities Act, The
Florida Accessibility Code and The Florida Americans With Disabilities
Accessibility Implementation Act, and all regulations and guidelines
promulgated under any of the foregoing, as the same may be amended from time
to time (collectively the "Accessibility Laws"). Pursuant to the terms of a
separate Accessibility Indemnity Agreement of even date herewith executed by
Xxxxxxxx to and in favor of Lender (the "Accessibility Indemnity Agreement"),
Xxxxxxxx agrees to indemnify Lender and hold Lender harmless from and against
any and all losses, liabilities, damages, injuries, costs, expenses and
claims of any and every kind whatsoever paid, incurred or suffered by or
asserted against Lender arising, either directly or indirectly, out of any
noncompliance of the Property with any Accessibility Laws or any claimed
breach or violation thereof by Borrower or the Property, regardless of
whether or not caused by, or within the control of, Xxxxxxxx. The
indemnification agreement of Borrower contained in the foregoing sentence and
in the Accessibility Indemnity Agreement shall survive repayment of the Note
and satisfaction of this Mortgage, except as otherwise provided in
subparagraph (11) in the Exculpation section of the Note.
Borrower at all times shall keep the Property and ground water of
the Property free of Hazardous Materials (as defined in that certain
Hazardous Materials Indemnity Agreement of even date herewith executed by
Xxxxxxxx to and in favor of Xxxxxx (the "Hazardous Materials Indemnity
Agreement")). Borrower shall not permit its tenants or any third party
requiring the consent of Borrower to enter the Property, to use, generate,
manufacture, store, release, threaten release, or dispose of Hazardous
Materials in, on or about the Property or the ground water of the Property in
violation of any federal, state or municipal law, decision, statute, rule,
ordinance or regulation currently in existence or hereinafter enacted or
rendered. Borrower shall give Lender prompt written notice of any claim by
any person, entity, or governmental agency that a significant release or
disposal of Hazardous Materials has occurred on the Property and shall remove
same in compliance with the terms and conditions of the Hazardous Materials
Indemnity Agreement.
Notwithstanding anything to the contrary herein contained, Borrower
shall not be required to remove Hazardous Materials from the Property
provided that either (i) the Property is in compliance with all Hazardous
Materials Laws, or (ii) Borrower has received a written waiver or variance
from such Hazardous Materials Laws with respect to the Property from the
federal, state or local governmental agency having jurisdiction over the
Property.
Pursuant to the terms of the Hazardous Materials Indemnity
Agreement, Xxxxxxxx agrees to indemnify Lender and hold Lender harmless from
and against any and all losses, liabilities, damages, injuries, costs,
expenses and claims of any and every kind whatsoever paid, incurred or
suffered by, or asserted against Lender for, with respect to, or as a direct
or indirect result of, the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or release from, the
Property of any Hazardous Materials (including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Hazardous Materials Laws) regardless of whether or not
caused by, or within the control of, Borrower.
Lender, and/or its agents, shall, subject to the rights of tenants
under Leases approved by Lender, have the right and shall be permitted, but
shall not be required, at all reasonable times, to enter upon and inspect the
Property to insure compliance with the foregoing covenants and any and all
other covenants, agreements and conditions set forth in this Mortgage. The
Hazardous Materials Indemnity Agreement, the provisions of this Paragraph 3
and similar provisions in this Mortgage and the other Loan Documents
concerning Hazardous Materials shall survive repayment of the Note and
satisfaction of this Mortgage; provided, however, that such liability shall
not survive the repayment and satisfaction of the Note, Mortgage and other
Loan Documents if contemporaneously with such repayment and satisfaction
Borrower furnishes Lender with an environmental assessment report acceptable
to Lender reflecting that the Property is free from Hazardous Materials and
not in violation of Hazardous Materials Laws (as defined in the Hazardous
Materials Indemnity Agreement); and provided further that Borrower shall not
be liable by way of indemnification with respect to Hazardous Materials as
provided herein or in the Hazardous Materials Indemnity Agreement if the
Property becomes contaminated subsequent to Lender's acquisition of title to
the Property by foreclosure of this Mortgage or acceptance of a deed in lieu
thereof or subsequent to any transfer of title to all (but not less than all)
of the Property by means of a transfer approved by Lender pursuant to this
Mortgage, provided that such transferee assumes in writing all obligations of
Borrower with respect to Hazardous Materials pursuant to this Mortgage and
the Hazardous Materials Indemnity Agreement. The burden of proof under the
preceding sentence with regard to establishing the date upon which any
Hazardous Materials were placed or appeared in, on or under the Property
shall be upon Borrower.
For purposes of this Paragraph 3, Borrower shall be construed to
include each general partner of Xxxxxxxx.
4. Payment of Taxes, Assessments and Other Charges. To pay or cause
to be paid all and singular such taxes, assessments and public charges as
already levied or assessed or that may be hereafter levied or assessed upon
or against the Property, when the same shall become due and payable according
to law, before the same become delinquent, and before any interest or penalty
shall attach thereto, and to deliver official receipts evidencing the payment
of the same to Lender not later than thirty (30) days following the payment
of the same. Borrower shall have the right to contest, in good faith, the
proposed assessment of ad valorem taxes or special assessments by
governmental authorities having jurisdiction over the Property; provided,
however, Borrower shall give written notice thereof to Lender and Lender may,
in its sole discretion, require Borrower to post a bond or other collateral
satisfactory to Lender in connection with any such action by Borrower.
5. Payment of Liens, Charges and Encumbrances. To immediately pay
and discharge from time to time when the same shall become due all lawful
claims and demands of mechanics, materialmen, laborers and others which, if
unpaid, might result in, or permit the creation of, a lien, charge or
encumbrance upon the Property or any part thereof, or on the rents, issues,
income, revenues, profits and proceeds arising therefrom and, in general, to
do or cause to be done everything necessary so that the lien of this Mortgage
shall be fully preserved at the cost of Borrower, without expense to Lender.
Borrower shall have the right to contest, in good faith, and in accordance
with applicable laws and procedures, mechanics' and materialmen's liens filed
against the Property; provided however, that Borrower shall give written
notice thereof to Lender, and Lender may, at its sole option, require
Borrower to post a bond or other collateral satisfactory to Lender (and the
title insurance company insuring the Mortgage) in connection with any such
action by Borrower.
6. Payment of Junior Encumbrances. To permit no default or
delinquency under any other lien, imposition, charge or encumbrance against
the Property, even though junior and inferior to the lien of this Mortgage;
provided however, the foregoing shall not be construed to permit any other
lien or encumbrance against the Property.
7. Payment of Mortgage Taxes. To pay any and all taxes which may be
levied or assessed directly or indirectly upon the Note and this Mortgage
(except for income taxes payable by Lender) or the debt secured hereby,
without regard to any law which may be hereafter enacted imposing payment of
the whole or any part thereof upon Lender, its successors or assigns. Upon
violation of this agreement to pay such taxes levied or assessed upon the
Note and this Mortgage, or upon the rendering by any court of competent
jurisdiction of a decision that such an agreement by Xxxxxxxx is legally
inoperative, or if any court of competent jurisdiction shall render a
decision that the rate of said tax when added to the rate of interest
provided for in the Note exceeds the then maximum rate of interest allowed by
law, then, and in any such event, the debt hereby secured shall, at the
option of Lender, its successors or assigns, become immediately due and
payable, anything contained in this Mortgage or in the Note secured hereby
notwithstanding, without the imposition of a Prepayment Premium (as defined
in the Note). The additional amounts which may become due and payable
hereunder shall be part of the debt secured by this Mortgage.
8. Hazard Insurance. To continuously, during the term hereof, keep
the Improvements and the Fixtures and Personal Property now or hereafter
existing, erected, installed and located in or upon the Real Property
insured, with extended coverage, against loss or damage resulting from fire,
windstorm, flood, sinkhole and such other hazards, casualties, contingencies
and perils including, without limitation, other risks insured against by
persons operating like properties in the locality of the Property, or
otherwise deemed necessary by Lender, on such forms as may be required by
Lender, covering the Property in the amount of the full replacement cost
thereof, less excavating and foundation costs (provided, however, in no case
shall the amount of insurance be less than the difference between the amount
of the Note and eighty percent (80%) of the appraised value of the Real
Property) covering all loss or abatement of rental or other income without a
provision for co-insurance in an amount equal to the scheduled rental income
from the Property for at least twelve (12) months or, if applicable, business
interruption insurance in an amount sufficient to pay debt service on the
Note, operating expenses, taxes and insurance on the Property for a period of
twelve (12) months, and covering loss by flood (if the Property lies in a
specified Flood Hazard Area as designated on the Department of Housing and
Urban Development Maps, or other flood prone designation) in an amount equal
to the outstanding principal balance of the indebtedness secured hereby or
such other amount as approved by Lender. All such insurance shall be carried
with a company or companies acceptable to Lender, which company or companies
shall have a rating at the time this Mortgage is executed and during the
entire term of the Note equivalent to at least A:VIII as shown in the most
recent Best's Key Rating Guide, and the original policy or policies and
renewals thereof (or, at the sole option of Lender, duplicate originals or
certified copies thereof), together with receipts evidencing payment of the
premium therefor, shall be deposited with, held by and are hereby assigned to
Lender as additional security for the indebtedness secured hereby. Each such
policy of insurance shall contain a non-contributing loss payable clause in
favor of and in form acceptable to Lender and shall provide for not less than
thirty (30) days prior written notice to Lender of any intent to modify,
cancel or terminate such policies of insurance. If the insurance required
under this Paragraph 8 or any portion thereof is maintained pursuant to a
blanket policy, Borrower shall furnish to Lender a certified copy of such
policy, together with an original certificate indicating that Lender is an
insured under such policy in regard to the Property and showing the amount of
coverage apportioned to the Property which coverage shall be in an amount
sufficient to satisfy the requirements hereof. Not less than fifteen (15)
days prior to the expiration dates of each policy required of Borrower
hereunder, Xxxxxxxx will deliver to Lender a renewal policy or policies
marked "premium paid" or accompanied by other evidence of payment and renewal
satisfactory to Lender; and in the event of foreclosure of this Mortgage, any
purchaser or purchasers of the Property shall succeed to all rights of
Borrower, including any rights to unearned premiums, in and to all insurance
policies assigned and delivered to Lender pursuant to the provisions of this
Paragraph 8. Notwithstanding the foregoing, to the extent that any Major
Tenant (as hereinafter defined) elects to self insure, such self-insurance
will be accepted by Xxxxxx provided that (a) the Major Tenant maintains a
minimum net worth of $100 million, as evidenced by the financial statement
provided pursuant to Paragraph 12, (b) the Major Tenant provides written
verification of such self-insurance and (c) the Major Tenant Lease (as
hereinafter defined) is approved by Lender.
In the event of loss by reason of hazards, casualties, contingencies
and perils for which insurance has been required by Lender hereunder,
Borrower shall give immediate notice thereof to Lender, and Xxxxxx is hereby
irrevocably appointed as attorney-in-fact coupled with an interest, for
Lender to, at its option, make proof of loss if not made promptly by
Xxxxxxxx, and each insurance company concerned is hereby notified, authorized
and directed to make payment for such loss directly to Lender, instead of to
Borrower and Lender jointly, and Borrower hereby authorizes Lender to adjust
and compromise any losses for which insurance proceeds are payable under any
of the aforesaid insurance policies and, after deducting the costs of
collection, to apply the proceeds of such insurance, at its option, as
follows: (a) to the restoration or repair of the insured Improvements,
Fixtures and Personal Property, provided that, in the opinion and sole
discretion of Lender, such restoration or repair is reasonably practical and,
provided further, that, in the opinion and sole discretion of Lender, either:
(i) the insurance proceeds so collected are sufficient to cover the cost of
such restoration or repair of the damage or destruction with respect to which
such proceeds were paid, or (ii) the insurance proceeds so collected are not
sufficient alone to cover the cost of such restoration or repair, but are
sufficient therefor when taken together with funds provided and made
available by Borrower from other sources; in which event Lender shall make
such insurance proceeds available to Borrower for the purpose of effecting
such restoration or repair; but Lender shall not be obligated to see to the
proper application of such insurance proceeds nor shall the amount of funds
so released or used be deemed to be payment of or on account of the
indebtedness secured hereby, or (b) to the reduction of the indebtedness
secured hereby, notwithstanding the fact that the amount owing thereon may
not then be due and payable or that said indebtedness is otherwise adequately
secured, in which event such proceeds shall be applied at par against the
indebtedness secured hereby and the monthly payment due on account of such
indebtedness shall be reduced accordingly. None of such actions taken by
Lender shall be deemed to be or result in a waiver or impairment of any
equity, lien or right of Lender under and by virtue of this Mortgage, nor
will the application of such insurance proceeds to the reduction of the
indebtedness serve to cure any default in the payment thereof. In the event
of foreclosure of this Mortgage or other transfer of title to the Property in
extinguishment of the indebtedness secured hereby, all right, title and
interest of Borrower in and to any insurance policies then in force and
insurance proceeds then payable shall pass to the purchaser or grantee.
In the case of Xxxxxxxx's failure to keep the Property so insured,
Lender or its assigns may, at its option (but shall not be required to)
obtain such insurance at Borrower's expense.
Notwithstanding anything set forth in this Paragraph 8 to the
contrary, in the event of loss or damage to the Property by fire or other
casualty for which insurance has been required by Lender and provided by
Borrower, and the amount of such loss or damage does not exceed fifty percent
(50%) of the outstanding principal balance of the Note, then Lender hereby
agrees to allow the proceeds of insurance to be used for the restoration of
the Property and to release such insurance proceeds to Borrower as such
restoration progresses, provided:
a. Borrower is not in default under any of the terms, covenants and
conditions of this Mortgage, the Note or any of the Loan
Documents evidencing or securing the Note;
b. The Property, after such restoration, will be at least eighty
percent (80%) leased pursuant to leases approved in writing by
Xxxxxx;
c. The plans and specifications for the restoration of the Property
are approved in writing by Xxxxxx;
d. At all times during such restoration, Borrower has deposited with
Lender funds which, when added to such insurance proceeds, are
sufficient to complete the restoration of the Property in
accordance with the approved plans and specifications and all
applicable building code and zoning ordinances and regulations,
and further, that the sufficiency of such funds is certified to
Lender by Xxxxxx's inspecting architect/engineer;
e. Borrower provides completion, payment and performance bonds and
builders' all risk insurance for such restoration in form and
amount acceptable to Lender;
f. The insurer under such policies of fire or other casualty
insurance does not assert any defense to payment under such
policies against Lender, Borrower or any tenant of the Property;
g. The insurance proceeds held by Lender shall be disbursed no more
often than once per month and in not more than five (5)
increments of not less than FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) each (except the final disbursement of such proceeds
which may be in an amount less than $50,000.00). Lender's
obligation to make any such disbursement shall be conditioned
upon Xxxxxx's receipt of written certification from Xxxxxx's
inspecting architect/engineer that all construction and work for
which such disbursement is requested has been completed in
accordance with the approved plans and specifications and all
applicable building codes, zoning ordinances and all other
applicable federal, state or local laws, ordinances or
regulations, and, further, that Borrower has deposited with
Lender sufficient funds to complete such restoration in
accordance with subparagraph (d) above;
h. Lender shall have the option, upon the completion of such
restoration of the Property, to apply any surplus insurance
proceeds remaining after the completion of such restoration, at
par, to the reduction of the indebtedness secured by this
Mortgage, notwithstanding the fact that the amount owing thereon
may not then be due and payable or that said indebtedness may
otherwise be adequately secured; and
i. Lender shall be entitled to require and to impose such other
conditions to the release of such insurance proceeds for
restoration of the Property as would be customarily or reasonably
required and imposed by a construction lender for a project of
similar nature and cost.
Further notwithstanding anything set forth in this Paragraph 8 to
the contrary, in the event of loss or damage to the Property by fire or other
casualty for which insurance has been required by Lender and provided by
Borrower (or for which a Major Tenant has been permitted to self insure),
Xxxxxx agrees that, so long as Borrower is not then in default under the
terms of this Mortgage, the Note or any of the other Loan Documents, the
insurance proceeds or the proceeds of self-insurance, as applicable, shall,
subject to the conditions contained in Subparagraphs 8(c) through 8(i)
hereinabove, be made available by Lender for the restoration of premises
leased by a Major Tenant, to the extent such restoration is required under
such Major Tenant Lease.
9. Liability Insurance. To carry and maintain such comprehensive
general liability insurance as may from time to time be required by Lender on
forms, in amounts and with such company or companies as may be acceptable to
Lender, taking into account the type and nature of the Property and the
business being operated thereon, and the corresponding liability exposure.
All such comprehensive general liability insurance shall be carried with a
company or companies which have a current rating equivalent to at least
A:VIII as shown in Best's Key Rating Guide. Such policy or policies of
insurance shall name Lender as an additional insured and shall provide for
not less than thirty (30) days' prior written notice to Lender of
modification, cancellation, termination or expiration of such policy or
policies of insurance. Not less than fifteen (15) days prior to the
expiration dates of such policy or policies, Borrower will deliver to Lender
a renewal policy or policies marked "premium paid" or accompanied by other
evidence of payment and renewal satisfactory to Lender. The original policy
or policies and all renewals thereof (or, at the sole option of Lender,
duplicate originals or certified copies thereof), together with receipts
evidencing payment of the premium therefor, shall be deposited with, held by
and are hereby assigned to Lender as additional security for the indebtedness
secured hereby. If the insurance required under this Paragraph 9 or any
portion thereof is maintained pursuant to a blanket policy, Borrower shall
furnish to Lender a certified copy of such policy, together with an original
certificate indicating that Lender is an insured under such policy in regard
to the Property and showing the amount of coverage apportioned to the
Property which coverage shall be in an amount sufficient to satisfy the
requirements hereof.
10. Compliance With Laws. To observe, abide by and comply with all
statutes, ordinances, laws, orders, requirements or decrees relating to the
Property enacted, promulgated or issued by any federal, state, county or
municipal authority or any agency or subdivision thereof having jurisdiction
over Borrower or the Property, and to observe and comply with all conditions
and requirements necessary to preserve and extend any and all rights,
licenses, permits (including, but not limited to, zoning, variances, special
exceptions and nonconforming uses), privileges, franchises and concessions
which are applicable to the Property or which have been granted to or
contracted for by Borrower in connection with any existing, presently
contemplated or future use of the Property.
11. Maintenance of Permits. To obtain, keep and constantly maintain
in full force and effect during the entire term of this Mortgage, all
certificates, licenses and permits necessary to keep the Property operating
as a retail project and, except as specifically provided for in this
Mortgage, not to assign, transfer or in any manner change such certificates,
licenses or permits without first receiving the written consent of Lender.
12. Obligations of Borrower as Lessor. To perform every obligation
of Borrower (as the lessor) and enforce every obligation of the lessee in any
and every lease or other occupancy agreement of or affecting the Property or
any part thereof (hereinafter referred to as the "Occupancy Leases"), and not
to modify, alter, waive, or cancel any such Occupancy Leases or any part
thereof, nor collect for more than thirty (30) days in advance any rents that
may be collectible under any such Occupancy Leases and, except as provided
for in this Mortgage, not to assign any such lease or Occupancy Lease or any
such rents to any party other than Lender, without the prior written consent
of Lender; provided, however, that the consent of Lender shall not be
required for any such actions undertaken by Borrower in the ordinary course
of its business with respect to tenants occupying less than three thousand
(3,000) square feet in the Improvements. In the event of default under any
such Occupancy Lease by reason of failure of the Borrower to keep or perform
one or more of the covenants, agreements or conditions thereof, Lender is
hereby authorized and empowered, and may, at its sole option, but without
obligation to do so, remedy, remove or cure any such default, and further,
Lender may, at its sole option and in its sole discretion, pay any sum of
money deemed necessary by it for the performance of said covenants,
agreements and conditions, or for the curing or removal of any such default,
and incur all expenses and obligations which it may consider necessary or
reasonable in connection therewith, and Borrower shall repay on demand all
such sums so paid or advanced by Lender together with interest thereon until
paid at the lesser of either (i) the highest rate then allowed by the laws of
the State of Florida, or, if controlling, the laws of the United States, or
(ii) the then applicable interest rate on the Note plus five percent (5%) per
annum; all of such sums, if unpaid, shall be added to and become part of the
indebtedness secured hereby. All such Occupancy Leases hereafter made shall
be subject to the approval of Lender and (a) shall be at competitive market
rental rates then prevailing in the geographic area for retail projects
comparable to the Property, (b) shall have lease terms of not less than three
(3) years, and (c) at Lender's option, shall be superior or subordinate in
all respects to the lien of this Mortgage. Pro vided, however, that Lender
shall not require approval in advance of any Occupancy Leases which conform
to the Borrower's Form Lease (as hereinafter defined) as previously approved
by Xxxxxx except as set forth below. Neither the right nor the exercise of
the right herein granted unto Lender to keep or perform any such covenants,
agreements or conditions as aforesaid shall preclude Lender from exercising
its option to cause the whole indebtedness secured hereby to become
immediately due and payable by reason of Xxxxxxxx's default in keeping or
performing any such covenants, agreements or conditions as hereinabove
required.
Lender has heretofore approved a form of Occupancy Lease to be used
by Borrower in connection with the Property (hereinafter referred to as the
"Form Lease"). Borrower shall not, with out the prior written consent of
Xxxxxx, modify or alter the Form Lease in any material respect. In addition,
Borrower shall not, without the prior written consent of Lender, surrender or
terminate, either orally or in writing, any Occupancy Lease now existing or
hereafter made with any Major Tenant (as hereinafter defined) for all or part
of the Property, permit an assignment or sublease of any such Occupancy
Lease, or request or consent to the subordination of any Occupancy Lease to
any lien subordinate to this Mortgage. Borrower shall furnish Lender with
copies of all executed Occupancy Leases of all or any part of the Property
now existing or hereafter made, and Borrower shall assign to Lender (which
assignment shall be in form and content acceptable to Lender), as additional
security for the Note, all Occupancy Leases now existing or hereafter made
for all or any part of the Property.
Notwithstanding the foregoing approval by Lender of Borrower's Form
Lease, Lender hereby specifically reserves the right to approve all
prospective tenants under all Occupancy Leases hereafter proposed to be made
if: (i) the term thereof, excluding options to renew the same, exceeds five
(5) years, or (ii) the net rentable area to be occupied thereunder, including
expansion options, exceeds ten percent (10%) of the net leasable area of the
Improvements (the tenants under such leases being hereinafter referred to as
"Major Tenants"). Borrower shall notify Lender in writing of all prospective
Major Tenants and shall deliver to Lender, at Xxxxxxxx's sole cost and
expense, a copy of the prospective Major Xxxxxx's current financial statement
and the most recent Dun & Xxxxxxxxxx credit report on said prospective Major
Tenant. Said financial statement shall be certified as true and correct by
the Major Tenant, or, if available, by a certified public accountant.
13. Maintenance of Parking and Access; Prohibition Against
Alteration. To construct, keep and constantly maintain, as the case may be,
all curbs, drives, parking areas and the number of parking spaces heretofore
approved by Lender or heretofore or hereafter required by any governmental
body, agency or authority having jurisdiction over Borrower or the Property;
and not to alter, erect, build or construct upon any portion of the Property,
any building or structure of any kind whatsoever, the erection, building or
construction of which has not been previously approved by Lender in writing,
which approval shall be at the sole discretion of Lender.
14. Execution of Additional Documents. To do, execute, acknowledge
and deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignments, transfers, assurances and other
instruments, including security agreements and financing statements, as
Lender shall from time to time require for the purpose of better assuring,
conveying, assigning, transferring and confirming unto Lender the Property
and rights hereby encumbered, created, conveyed, assigned or intended now or
hereafter so to be encumbered, created, conveyed or assigned or which
Borrower may now be or may hereafter become bound to encumber, create,
convey, or assign to Lender, or for the purpose of carrying out the intention
or facilitating the performance of the terms of this Mortgage, or for filing,
registering or recording this Mortgage, and to pay all filing, registration
or recording fees and all taxes, costs and other expenses, including
Reasonable Attorneys' Fees (as defined in Paragraph 40), incident to the
preparation, execution, acknowledgment, delivery and recordation of any of
the same.
15. After-Acquired Property Secured. It is understood and agreed
that all right, title and interest of Borrower in and to all extensions,
improvements, betterments, renewals, substitutions and replacements of, and
all additions and appurtenances to, the Property hereinabove described,
hereafter acquired by or released to Borrower, or constructed, assembled or
placed by Borrower on the Real Property, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and in
each such case, without any further mortgage, encumbrance, conveyance,
assignment or other act by Xxxxxxxx, shall become subject to the lien of this
Mortgage as fully and completely and with the same effect as though now owned
by Xxxxxxxx and specifically described herein, but at any and all times
Borrower will execute and deliver to Lender any and all such further
assurances, mortgages, conveyances, or assignments thereof or security
interests therein as Lender may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien of this Mortgage.
16. Payments by Xxxxxx on Behalf of Borrower. Should Borrower fail
to make payment of any taxes, assessments or public charges on or with
respect to the Property before the same shall become delinquent, or shall
fail to make payment of any insurance premiums or other charges, impositions,
or liens herein or elsewhere required to be paid by Borrower, then Lender, at
its sole option, but without obligation to do so, may make payment or
payments of the same and also may redeem the Property from tax sale without
any obligation to inquire into the validity of such taxes, assessments and
tax sales. In the case of any such payment by Xxxxxx, Xxxxxxxx agrees to
reimburse Lender, upon demand therefor, the amount of such payment and of any
fees and expenses attendant in making the same, together with interest
thereon at the lesser of either (i) the highest rate then allowable by the
laws of the State of Florida or, if controlling, the laws of the United
States, or (ii) the then applicable interest rate of the Note plus five
percent (5%) per annum; and until paid such amounts and interest shall be
added to and become part of the debt secured hereby to the same extent that
this Mortgage secures the repayment of the indebtedness evidenced by the
Note. In making payments hereby authorized by the provisions of this
Paragraph 16, Lender may do so whenever, in its sole judgment and discretion,
such advance or advances are necessary or desirable to protect the full
security intended to be afforded by this instrument. Neither the right nor
the exercise of the right herein granted unto Lender to make any such
payments as aforesaid shall preclude Lender from exercising its option to
cause the whole indebtedness secured hereby to become immediately due and
payable by reason of Xxxxxxxx's default in making such payments as
hereinabove required.
17. Funds Held by Lender for Taxes, Insurance and Other Charges. In
order to more fully protect the security of this Mortgage, Borrower shall
deposit with Lender, together with and in addition to each monthly payment
due on account of the indebtedness evidenced by the Note, an amount equal to
one-twelfth (1/12) of the annual total of such taxes, insurance and other
charges (all as estimated by Xxxxxx in its sole discretion) so that, at least
thirty (30) days prior to the due date thereof, Lender shall be able to pay
in full all such taxes, insurance and other charges as the same shall become
due, and Lender may hold the sums so deposited without interest and
commingled with its general funds and apply the same to the payment of said
taxes, insurance or other charges as they become due and payable. If at any
time the funds so held by Lender are insufficient to pay such insurance or
other charges as they become due and payable Borrower shall immediately, upon
notice and demand by Lender, deposit with Lender the amount of such
deficiency, and the failure on the part of Borrower to do so shall entitle
Lender, at its sole option, to make such payments in accordance with its
right and pursuant to the conditions elsewhere provided in this Mortgage.
Whenever any default exists under this Mortgage, Lender may, at its sole
option but without an obligation so to do, apply any funds so held by it
pursuant to this Paragraph 17 toward the payment of the indebtedness secured
hereby, notwithstanding the fact that the amount owing thereon may not then
be due and payable or that said indebtedness may otherwise be adequately
secured, in such order and manner of application as Lender may elect.
18. Condemnation; Eminent Domain. All awards and other compensation
heretofore or hereafter made to Borrower and all subsequent owners of the
Property in any taking by eminent domain or recovery for inverse
condemnation, either permanent or temporary, of all or any part of the
Property or any easement or any appurtenance thereto, including severance and
consequential damages and change in grade of any street, are hereby assigned
to Lender, and Borrower hereby irrevocably appoints Lender as its
attorney-in-fact, coupled with an interest, and authorizes, directs and
empowers such attorney, at the option of said attorney, on behalf of
Xxxxxxxx, its successors and assigns, to adjust or compromise the claim for
any such award and alone to collect and receive the proceeds thereof, to give
proper receipts and acquittances therefor and, after deducting any expenses
of collection, at its sole option:
(i) To apply the net proceeds as a credit upon any portion of
the indebtedness secured hereby, as selected by Xxxxxx,
notwithstanding the fact that the amount owing thereon may
not then be due and payable or that the indebtedness is
otherwise adequately secured. In the event Lender applies
such awards to the reduction of the outstanding
indebtedness evidenced by the Note, such proceeds shall be
applied at par and the monthly installments due and payable
under the Note shall be reduced accordingly; however no
such application shall serve to cure an existing default in
the payment of the Note; or
(ii) To hold said proceeds without any allowance of interest and
make the same available for restoration or rebuilding the
Property. In the event that Xxxxxx elects to make said
proceeds available to reimburse Borrower for the cost of
the restoration or rebuilding of the building(s) or other
Improvements on the Property, such proceeds shall be made
available in the manner and under the conditions that
Lender may require as provided under Paragraph 8 hereof. If
the proceeds are made available by Xxxxxx to reimburse
Borrower for the cost of said restoration or rebuilding,
any surplus which may remain out of said award after
payment of such cost of restoration or rebuilding shall be
applied on account of the indebtedness secured hereby at
par, notwithstanding the fact that the amount due and owing
thereon may not then be due and payable or that said
indebtedness may otherwise be adequately secured.
Borrower further covenants and agrees to give Xxxxxx immediate
notice of the actual or threatened commencement of any proceedings under
eminent domain and to deliver to Lender copies of any and all papers served
in connection with any proceedings. Borrower further covenants and agrees to
make, execute and deliver to Lender, at any time or times, upon request,
free, clear and discharged of any encumbrance of any kind whatsoever, any and
all further assignments and/or other instruments deemed necessary by Lender
for the purpose of validly and sufficiently assigning all such awards and
other compensation heretofore or hereafter made to Lender (including the
assignment of any award from the United States government at any time after
the allowance of the claim therefor, the ascertainment of the amount thereof
and the issuance of the warrant for payment thereof).
If any part of any of the Improvements situated on the Property
shall be condemned by any governmental authority having jurisdiction, or if
lands constituting a portion of the Property shall be condemned by any
governmental authority having jurisdiction, such that the Property is in
violation of applicable parking, zoning, platting or other ordinances, or
fails to comply with the terms of any Major Tenant Occupancy Leases, then in
any such event, at the election of Lender, the whole of the indebtedness
hereby secured shall become immediately due and payable at par (i.e., without
Prepayment Premium) and Lender shall be entitled to exercise any or all
remedies provided or referenced in this Mortgage.
19. Costs of Collection. In the event that the Note secured hereby
is placed in the hands of an attorney for collection, or in the event that
Lender shall become a party either as plaintiff or as defendant, in any
action, suit, appeal or legal proceeding (including, without limitation,
foreclosure, condemnation, bankruptcy or administrative proceedings or any
proceeding wherein proof of claim is by law required to be filed), hearing,
motion or application before any court or administrative body in relation to
the Property or the lien and security interest granted or created hereby or
herein, or for the recovery or protection of said indebtedness or the
Property, or for the foreclosure of this Mortgage, Borrower shall save and
hold Lender harmless from and against any and all costs and expenses incurred
by Xxxxxx on account thereof, including, but not limited to, Reasonable
Attorneys' Fees, title searches and abstract and survey charges, at all trial
and appellate levels, and Borrower shall repay, on demand, all such costs and
expenses, together with interest thereon until paid at the lesser of either
(i) the highest rate then allowed by the laws of the State of Florida or, if
controlling, the laws of the United States, or (ii) the then applicable rate
of interest of the Note plus five percent (5%) per annum; all of which sums,
if unpaid, shall be added to and become a part of the indebtedness secured
hereby.
20. Default Rate. Any sums not paid when due, whether maturing by
lapse of time or by reason of acceleration under the provisions of the Note
or this Mortgage, and whether principal, interest or money owing for
advancements pursuant to the terms of this Mortgage or any of the other Loan
Documents, shall bear interest until paid at the lesser of either (i) the
highest rate then allowed by the laws of the State of Florida or, if
controlling, the laws of the United States, or (ii) the then applicable rate
of interest of the Note plus five percent (5%) per annum, all of which sums
shall be added to and become a part of the indebtedness secured hereby.
21. Savings Clause; Severability. Notwithstanding any provisions in
the Note or in this Mortgage to the contrary, the total liability for
payments in the nature of interest including but not limited to Prepayment
Premiums, default interest and late fees shall not exceed the limits imposed
by the laws of the State of Florida or, if controlling, the United States of
America relating to maximum allowable charges of interest. Lender shall not
be entitled to receive, collect or apply, as interest on the indebtedness
evidenced by the Note, any amount in excess of the maximum lawful rate of
interest permitted to be charged by applicable law. In the event Lender ever
receives, collects or applies as interest any such excess, such amount which
would be excessive interest shall be applied to reduce the unpaid principal
balance of the indebtedness evidenced by the Note. If the unpaid principal
balance of such indebtedness is paid in full, any remaining excess shall be
forthwith paid to Borrower. If any clauses or provisions herein contained
shall operate or would prospectively operate to invalidate this Mortgage,
then such clauses or 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.
22. Bankruptcy, Reorganization or Assignment. It shall be a default
hereunder if Borrower or any general partner of Borrower shall: (a) consent
to the appointment of a receiver, trustee or liquidator of all or a
substantial part of Xxxxxxxx's or any general partner of Xxxxxxxx's assets,
or (b) be adjudicated as bankrupt or insolvent, or file a voluntary petition
in bankruptcy, or admit in writing its inability to pay its debts as they
become due, or (c) make a general assignment for the benefit of creditors, or
(d) file a petition under or take advantage of any insolvency law, or (e)
file an answer admitting the material allegations of a petition filed against
Borrower in any bankruptcy, reorganization or insolvency proceeding or fail
to cause the dismissal of such petition within thirty (30) days after the
filing of said petition, or (f) take action for the purpose of effecting any
of the foregoing, or (g) if any order, judgment or decree shall be entered
upon an application of a creditor of Borrower or any general partner of
Borrower by a court of competent jurisdiction approving a petition seeking
appointment of a receiver or trustee of all or a substantial part of
Xxxxxxxx's or such general partner's assets and such order, judgment or
decree shall continue unstayed and in effect for a period of thirty (30)
days.
23. Time is of the Essence; Monetary and Non-Monetary Defaults. It
is understood by Xxxxxxxx that time is of the essence hereof in connection
with all obligations of Borrower herein and in the Note, the Assignment (as
defined in Paragraph 34) and in any of the other Loan Documents evidencing or
securing the Note.
If default be made in the payment of any installment of the Note,
whether of principal or interest, or both, or in the payment of any other
sums of money referred to herein or in the Note, promptly and fully when the
same shall be due without notice or demand from Lender to Borrower in regard
to such Monetary Default (as hereinafter defined), or in the event a breach
or default be made by Borrower in any one of the agreements, conditions and
covenants of the Note, this Mortgage, the Assignment, or any other Loan
Documents, or in the event that each and every one of said agreements,
conditions and covenants are not otherwise duly, promptly and fully
discharged or performed, and any such Non-Monetary Default (as hereinafter
defined) remains uncured for a period of thirty (30) days (or, if a period of
time greater than thirty (30) days is reasonably necessary to cure such
Non-Monetary Default, such greater period of time so long as Borrower
commences to cure such Non-Monetary Default within said thirty (30) days and
continues to prosecute the curing thereof to completion with due diligence,
as determined in the sole discretion of Lender) after written notice thereof
from Lender to Borrower has been delivered in the manner prescribed in
Paragraph 41 hereof, then, upon the occurrence of any one of such events,
Lender, at its sole option, may thereupon or thereafter declare the
indebtedness evidenced by the Note, as well as all other monies secured
hereby, including, without limitation, all Prepayment Premiums and late
payment charges, to be forthwith due and payable, whereupon the principal of
and the interest accrued on the indebted ness evidenced by the Note and all
other sums secured by this Mortgage, at the option of Lender, shall
immediately become due and payable as if all of said sums of money were
originally stipulated to be paid on such day, and thereupon, Lender may avail
itself of all rights and remedies provided by law and may prosecute a suit at
law or in equity as if all monies secured hereby had matured prior to its
institution, anything in this Mortgage or in the Note to the contrary
notwithstanding. Lender shall have no obligation to give Borrower notice of,
or any period to cure, any Monetary Default or any Incurable Default (as
hereinafter defined) prior to exercising its right, power and privilege to
accelerate the maturity of the indebtedness evidenced hereby. Notwithstanding
the foregoing, once per loan year, Borrower shall have a right to notice and
a five (5) day period to cure a monetary default. This once per loan year
right to notice and cure does not waive rights of Lender to any late payment
charge contained in the Note.
As used herein, the term "Monetary Default" shall mean any default
which can be cured by the payment of money such as, but not limited to, the
payment of principal and interest due under the Note and the payment of
taxes, assessments and insurance premiums when due as provided in this
Mortgage. As used herein, the term "Non-Monetary Default" shall mean any
default which is not a Monetary Default or an Incurable Default. As used
herein, the term "Incurable Default" shall mean (i) any voluntary or
involuntary sale, assignment, mortgaging, encumbering or transfer in
violation of the covenants contained herein; or (ii) if Borrower, or any
person or entity comprising Borrower, should make an assignment for the
benefit of creditors, become insolvent, or file a petition in bankruptcy
(including but not limited to, a petition seeking a rearrangement or
reorganization).
Lender may institute an action to foreclose this Mortgage as to the
amount so declared due and payable, and thereupon, the Property shall be sold
according to law to satisfy and pay the same together with all costs,
expenses and allowances thereof, including, without limitation, a reasonable
fee for Xxxxxx's attorneys, at all trial and appellate levels. The Property
may be sold in one parcel, several parcels or groups of parcels, and Lender
shall be entitled to bid at the sale, and, if Lender is the highest bidder
for the Property or any part or parts thereof, Lender shall be entitled to
purchase the same. The failure or omission on the part of Lender to exercise
the option for acceleration of maturity of the Note and foreclosure of this
Mortgage following any default as aforesaid or to exercise any other option
or remedy granted hereunder to Lender when entitled to do so in any one or
more instances, or the acceptance by Lender of partial payment of the
indebtedness secured hereby, whether before or subsequent to Borrower's
default hereunder, shall not constitute a waiver of any such default or the
right to exercise any such option or remedy, but such option or remedy shall
remain continuously in force. Acceleration of maturity of the Note, once
claimed hereunder by Xxxxxx, at the option of Xxxxxx, may be rescinded by
written acknowledgment to that effect by Xxxxxx, but the tender and
acceptance of partial payments alone shall not in any way affect or rescind
such acceleration of maturity.
24. Protection of Lender's Security. At any time after default
hereunder, Lender is authorized, without notice and in its sole discretion,
to enter upon and take possession of the Property or any part thereof and to
perform any acts which Lender deems necessary or proper to conserve the
security herein intended to be provided by the Property, to operate any
business or businesses conducted thereon and to collect and receive all
rents, issues and profits thereof and therefrom, including those past due as
well as those accruing thereafter.
25. Appointment of Receiver. If, at any time after a default
hereunder, in the sole discretion of Lender, a receivership may be necessary
to protect the Property or its rents, issues, revenue, profits or proceeds,
whether before or after maturity of the indebtedness secured hereby and
whether before or at the time of or after the institution of suit to collect
such indebtedness, or to enforce this Mortgage, Lender, as a matter of strict
right and regardless of the value of the Property or the amounts due
hereunder or secured hereby, or of the solvency of any party bound for the
payment of such indebtedness, shall have the right, upon ex parte application
and without notice to anyone, and by any court having jurisdiction, to the
appointment of a receiver to take charge of, manage, preserve, protect and
operate the Property, to collect the rents, issues, revenues, profits,
proceeds and income thereof, to make all necessary and needful repairs, and
to pay all taxes, assess ments and charges against the Property and all
premiums for insurance thereon, and to do such other acts as may by such
court be authorized and directed, and after payment of the expenses of the
receivership and the management of the Property, to apply the net proceeds of
such receivership in reduction of the indebtedness secured hereby or in such
other manner as the said court shall direct, notwithstanding the fact that
the amount owing thereon may not then be due and payable or the said
indebtedness may otherwise be adequately secured. Such receivership shall, at
the option of Lender, continue until full payment of all sums hereby secured
or until title to the Property shall have passed by sale under this Mortgage.
Borrower hereby specifically waives its right to object to the appointment of
a receiver as aforesaid and hereby expressly agrees that such appointment
shall be made as an admitted equity and as a matter of absolute right to
Lender.
26. Rights and Remedies Cumulative; Forbearance Not a Waiver. The
rights and remedies herein provided are cumulative and Lender, as the holder
of the Note and of every other obligation secured hereby, may recover
judgment thereon, issue execution therefor and resort to every other right or
remedy available at law or in equity, without first exhausting any right or
remedy available to Lender and without affecting or impairing the security of
any right or remedy afforded hereby, and no enumeration of special rights or
powers by any provisions hereof shall be construed to limit any grant of
general rights or powers, or to take away or limit any and all rights granted
to or vested in Lender by law, and Xxxxxxxx further agrees that no delay or
omission on the part of Lender to exercise any rights or powers accruing to
it hereunder shall impair any such right or power or shall be construed to be
a waiver of any such event of default hereunder or an acquiescence therein;
and every right, power and remedy granted herein or by law to Lender may be
exercised from time to time as often as may be deemed expedient by Xxxxxx.
27. Modification Not an Impairment of Security. Xxxxxx, without
notice and without regard to the consideration, if any, paid therefor, and
notwithstanding the existence at that time of any inferior mortgages or other
liens thereon, may release any part of the security described herein or may
release any person or entity liable for any indebtedness secured hereby
without in any way affecting the priority of this Mortgage, to the full
extent of the indebtedness remaining unpaid hereunder, upon any part of the
security not expressly released. Lender may, at its option and within its
sole discretion, also agree with any party obligated on said indebtedness, or
having any interest in the security described herein, to extend the time for
payment of any part or all of the indebtedness secured hereby, and such
agreement shall not, in any way, release or impair this Mortgage, but shall
extend the same as against the title of all parties having any interest in
said security, which interest is subject to this Mortgage.
28. Property Management/Leasing. The exclusive manager of the
Property shall be Borrower or such other manager as may be first approved in
writing by Xxxxxx. The exclusive leasing agent of the Property, if other than
the foregoing party, shall be first approved in writing by Xxxxxx. The
governing management and leasing contracts (or in the absence of any such
written contract, a letter so stating and further identifying the name of the
person or entity charged with the responsibility for managing and/or leasing
the Property) shall be satisfactory to and subject to the written approval of
Lender throughout the term of the indebtedness secured hereby. Upon default
in either of these requirements, then the whole of the indebtedness hereby
secured shall, at the election of Lender, become immediately due and payable,
together with any default premium and late payment charges required by the
Note, and Lender shall be entitled to exercise any or all remedies provided
or referenced in this Mortgage.
29. Modification Not a Waiver. In the event Lender: (a) releases, as
aforesaid, any part of the security described herein or any person or entity
liable for any indebtedness secured hereby, or (b) grants an extension of
time for the payment of the Note, or (c) takes other or additional security
for the payment of the Note, or (d) waives or fails to exercise any rights
granted herein or in the Note, or any other Loan Document, any said act or
omission shall not release Borrower, subsequent purchasers of the Property or
any part thereof, or makers, sureties, endorsers or guarantors of the Note,
if any, from any obligation or any covenant of this Mortgage or of the Note
or of any of the other Loan Documents, nor preclude Lender from exercising
any right, power or privilege herein granted or intended to be granted in the
event of any other default then made, or any subsequent default.
30. Transfer of Property or Controlling Interest in Borrower;
Assumption. Except as set forth in Paragraph 36 (b) hereof, the sale,
transfer, assignment or conveyance of all or any portion of the Property or
the transfer, assignment or conveyance of a controlling interest in Borrower,
whether voluntarily or by operation of law, without the prior written consent
of Lender, shall constitute a default under the terms of this Mortgage and
entitle Lender, at its sole option, to accelerate all sums due on the Note
together with any Prepayment Premiums to the extent permitted by the laws of
the State of Florida, late payment charges, or any other amounts secured
hereby. Lender may, however, elect to waive the option to accelerate granted
hereunder if, prior to any such sale, transfer, assignment or conveyance of
the Property, the following conditions shall be fully satisfied: (a) Lender
acknowledges in writing that, in its sole discretion, the creditworthiness of
the proposed transferee and the ability and experience of the proposed
transferee to operate the Property are satisfactory to Lender, and (b) Xxxxxx
and the proposed transferee shall enter into an agreement in writing that (i)
the interest payable on the indebtedness secured hereby shall be at such rate
as Lender shall determine, (ii) the repayment schedule as set forth in the
Note shall be modified by Xxxxxx, in its sole discretion, to initiate
amortization or modify the existing amortization schedule in order to
amortize the then remaining unpaid principal balance of the Note secured
hereby over a period of time as determined by Lender in its sole discretion
without a change in the maturity date of the Note, and (iii) the proposed
transferee shall assume in writing all obligations of Borrower under the
Note, this Mortgage and the other Loan Documents and an assumption fee to be
determined by Xxxxxx may be charged by Lender in its sole discretion, (c)
Lender shall receive for its review and approval copies of all transfer
documents, and (d) Borrower or the transferee shall pay all costs and
expenses in connection with such transfer and assumption, including, without
limitation, all fees and expenses incurred by Xxxxxx. Borrower and any
subsequent owner of the Property or any portion thereof shall do all things
necessary to preserve and keep in full force and effect its and their
existence, franchises, rights and privileges as a corporation or partnership,
as the case may be, under the laws of the state of its formation and its
right to own property and transact business in the State of Florida. It shall
be a default hereunder if Borrower or any subsequent owner of the Property or
any portion thereof shall amend, modify, transfer, assign or cancel the
partnership agreement, certificate of partnership or articles of
incorporation, as the case may be, of Borrower or such subsequent owner and,
in the reasonable determination of Lender, such amendment, modification,
transfer, assignment or cancellation shall have a material adverse effect on
Lender, the Property or the security value thereof. Borrower or such
subsequent owner shall provide Lender with copies of any amendment to its
partnership agreement, certificate of partnership or articles of
incorporation, as the case may be, no later than thirty (30) days after the
effective date of such amendment so that Lender may, in its sole discretion,
determine whether such amendment adversely affects Lender, the Property or
the security value thereof. In the event the ownership of the Property, or
any part thereof, shall become vested in a person or entity other than
Borrower, whether with or without the prior written consent of Lender, Lender
may, without notice to Xxxxxxxx, deal with such successor or successors in
interest with reference to the Property, this Mortgage and the Note secured
hereby in the same manner and to the same extent as with Borrower without in
any way vitiating or discharging Borrower's liability hereunder or under the
Note. No sale, transfer or conveyance of the Property, no forbearance on the
part of Lender and no extension of the time for the payment of the debt
hereby secured given by Lender shall operate to release, discharge, modify,
change, or affect the original liability of Borrower, either in whole or in
part, unless expressly set forth in writing executed by Xxxxxx.
Notwithstanding anything contained herein to the contrary, Borrower hereby
waives any right it now has or may hereafter have to require Lender to prove
an impairment of its security as a condition to exercise Xxxxxx's rights
under this Paragraph 30.
Notwithstanding anything contained in this Paragraph 30 to the
contrary:
A. As long as no default, or event which, with notice or the
passage of time or both, could result in a default, has
occurred hereunder or under the Note, Lender shall permit one
(1) bona fide arm's length transfer of the Property to another
borrowing entity without a change in loan terms; provided,
however, that no such transfer shall be valid or permitted
hereunder unless: (i) Lender receives at least sixty (60) days
prior written notice of such proposed transfer, (ii) such
proposed transferee has been approved in writing by Xxxxxx
(taking into consideration such factors as transferee's
creditworthiness, business experience, financial condition,
and managerial capabilities), (iii) Lender is paid a transfer
fee in the amount of (a) two percent (2%) of the outstanding
principal balance of the Note (if such balance is less than
THREE MILLION AND NO/100 DOLLARS ($3,000,000.00)), (b) one and
one-half percent (1.5%) of the outstanding principal balance
of the Note (if such balance is at least THREE MILLION AND
NO/100 DOLLARS ($3,000,000.00) but less than SIX MILLION AND
NO/100 DOLLARS ($6,000,000.00)), or (c) one percent (1%) of
the outstanding principal balance of the Note (if such balance
is SIX MILLION AND NO/100 DOLLARS ($6,000,000.00) or more);
provided, however that nothing herein shall be deemed to
obligate Lender to make any additional disbursements to
Borrower hereunder, (iv) Borrower pays all fees and expenses
incurred by Lender in connection with such transfer and
assumption, including, without limitation, inspection and
investigation fees, title insurance charges, documentary stamp
taxes, recording fees, and Reasonable Attorneys' Fees (as
hereinafter defined), (v) such proposed transferee assumes in
writing all obligations of Borrower under the Note, this
Mortgage and the other Loan Documents, with the same degree of
liability as Borrower; and (vi) Lender approves the management
agreement and the management company to be employed by the
proposed transferee. This one time right to transfer shall
apply to the Borrower named herein and not to any other owner
of the Property.
Any transfer of all or any portion of the Property which does not
strictly comply with the terms and conditions of the foregoing shall be a
default hereunder and shall entitle Lender to exercise all rights and
remedies provided in this Mortgage.
31. Further Encumbrance Prohibited; Subrogation. So long as the Note
remains unpaid, Borrower shall neither voluntarily nor involuntarily permit
the Property or any part thereof to become subject to any secondary lien,
mortgage, security interest or encumbrance of any kind whatsoever without the
prior written consent of Lender, and the imposition of any such secondary
lien, mortgage, security interest or encumbrance shall constitute an event of
default hereunder and entitle Lender, at its sole option, to declare all sums
due on account of the Note to be and become immediately due and payable. In
the event that Lender shall hereafter give its written consent to the
imposition of any such secondary lien, mortgage, security interest or other
encumbrance upon the Property, Lender, at its sole option, shall be entitled
to accelerate the maturity of the indebtedness secured hereby and exercise
any and all remedies provided and available to Lender hereunder in the event
that the holder of any such secondary lien or encumbrance shall institute
foreclosure or other proceedings to enforce the same; it being understood and
agreed that a default under any instrument or document evidencing, securing
or secured by any such secondary lien or encumbrance shall be and constitute
an event of default hereunder. In the event all or any portion of the
proceeds of the loan secured hereby are used for the purpose of retiring debt
or debts secured by prior liens on the Property, Lender shall be subrogated
to the rights and lien priority of the holder of the lien so discharged.
32. Conveyance of Mineral Rights Prohibited. Borrower agrees that
the making of any oil, gas or mineral lease or the sale or conveyance of any
mineral interest or right to explore for minerals under, through or upon the
Property would impair the value of the Property securing the Note, and that
Borrower shall have no right, power or authority to lease the Property, or
any part thereof, for oil, gas or other mineral purposes, or to grant, assign
or convey any mineral interest of any nature, or the right to explore for
oil, gas and other minerals, without first obtaining from Lender express
written permission therefor, which permission shall not be valid until
recorded among the Public Records of Polk County, Florida. Xxxxxxxx further
agrees that if Xxxxxxxx shall make, execute, or enter into any such lease or
attempt to grant any such mineral rights without such prior written
permission of Xxxxxx, then Lender shall have the option, without notice, to
declare the same to be a default hereunder and to declare the indebtedness
hereby secured immediately due and payable. Whether or not Lender shall
consent to such lease or grant of mineral rights, Lender shall receive the
entire consideration to be paid for such lease or grant of mineral rights,
with the same to be applied to the indebtedness hereby secured,
notwithstanding the fact that the amount owing thereon may not be due and
payable or the said indebtedness may be otherwise adequately secured;
provided, however, that the acceptance of such consideration shall in no way
impair the lien of this Mortgage on the Property.
33. Estoppel Certification by Xxxxxxxx. Borrower, upon request
therefor made either personally or by mail, shall certify in writing to
Lender (or any party designated by Lender) in form satisfactory to Lender the
amount of principal and interest then outstanding under the terms of the Note
and any other sums owing on account of this Mortgage or the other Loan
Documents, and whether any offsets or defenses exist against the Mortgage
debt. Such certification shall be made by Borrower within ten (10) days if
the request is made personally, or within twenty (20) days if the request is
made by mail.
34. Cross-Default. The Note secured hereby is also secured by the
terms, conditions and provisions of the Assignment of Leases, Rents and
Profits from Borrower to Lender recorded among the Public Records of Polk
County, Florida (hereinafter referred to as the "Assignment") and,
additionally, may be secured by contracts or agreements of guaranty or other
security instruments from Borrower to Lender. The terms, conditions and
provisions of each such security instrument shall be considered a part hereof
as fully as if set forth herein verbatim. Any default under this Mortgage or
the Note or any of the other Loan Documents shall constitute an event of
default under the aforesaid Assignment and any other security instruments,
and any default under the Assignment or other security instruments shall
likewise constitute a default hereunder and under the Note secured hereby.
Notwithstanding the foregoing, the enforcement or attempted enforcement of
this Mortgage or any other security instrument now or hereafter held by
Lender shall not prejudice or in any manner affect the right of Lender to
enforce any other Loan Document; it being understood and agreed that Lender
shall be entitled to enforce this Mortgage and any other Loan Document now or
hereafter held by it in such order and manner as Lender, in its sole
discretion, shall determine.
35. Examination of Borrower's Records. Borrower will maintain
complete and accurate books and records showing in detail the income and
expenses of the Property, and will permit Lender and its representatives to
examine said books and records and all supporting vouchers and data during
normal business hours and from time to time upon request by Xxxxxx, in such
place as such books and records are customarily kept, and will furnish to
Lender, within one hundred twenty (120) days after the close of each calendar
year, annual statements (a balance sheet, income statement, certified rent
roll, and current annual sales figures for all Major Tenants if required
under their respective leases or otherwise available) for Borrower and the
Property prepared in accordance with generally accepted accounting principles
and certified by Borrower to be true and correct and showing in detail all
income derived from and expenses incurred in connection with the ownership of
the Property. In the event Borrower fails to provide such statements to
Lender within the time prescribed above, Borrower shall pay Lender the sum of
TWO HUNDRED AND 00/100 DOLLARS ($200.00) for each successive month for which
statements are delinquent. In the event of default hereunder, Xxxxxx shall
have the right to require that said financial statements be audited and
certified by a certified public accountant acceptable to Lender, at the sole
cost and expense of Borrower.
36. Alteration, Removal and Change in Use of Property Prohibited.
Except for alterations made by K Mart Corporation, a Michigan corporation (K
Mart) pursuant to that certain lease between K Mart and N. Lake Plaza, a
Michigan partnership dated August 7, 1985, as assigned to Borrower dated by
that certain Assignment and Assumption Agreement dated April 22, 1994,
Borrower covenants and agrees to permit or suffer none of the following
without the prior written consent of Lender:
(a) Any structural alteration of, or addition to, the
Improvements now or hereafter situated upon the Real
Property or the addition of any new buildings or other
structure(s) thereto; or
(b) The removal, transfer, sale or lease of the Property,
except that the renewal, replacement or substitution of
fixtures, equipment, machinery, apparatus and articles of
personal property (replacement or substituted items must be
of like or better quality than the removed items in their
original condition) encumbered hereby may be made in the
normal course of business; or
(c) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than as
a retail project and related facilities.
37. Future Advances Secured. This Mortgage shall secure not only
existing indebtedness, but also future advances, whether such advances are
obligatory or to be made at the option of Lender, as are made within twenty
(20) years from the date hereof. Upon request of Xxxxxxxx, and at Xxxxxx's
option prior to release of this Mortgage, Lender may make future advances to
Borrower. All future advances with interest thereon shall be secured by this
Mortgage to the same extent as if such future advances were made on the date
of the execution of this Mortgage unless the parties shall agree otherwise in
writing, but the total secured indebtedness shall not exceed at any one time
a maximum principal amount equal to double the face amount of the Note plus
interest, and costs of collection including court costs and Reasonable
Attorney's Fees. Any advances or disbursements made for the benefit or
protection of or the payment of taxes, assessments, levies or insurance upon
the Property, with interest on such disbursements as provided herein shall be
added to the principal balance of the Note and collected as part thereof. The
filing of any notice limiting the maximum amount that may be secured by this
Mortgage pursuant to Florida Statutes Section 697.04 or otherwise shall be
and constitute a default under this Mortgage.
38. Effect of Security Agreement. Borrower does hereby grant and
this Mortgage is and shall be deemed to create, grant, give and convey a
mortgage of, a lien and encumbrance upon, and a present security interest in
both real and personal property, including all improvements, goods, chattels,
furniture, furnishings, fixtures, equipment, apparatus, appliances and other
items of tangible or intangible personal property, hereinabove particularly
or generally described and conveyed, whether now or hereafter affixed to,
located upon, necessary for or used or useful, either directly or indirectly,
in connection with the operation of the Property as a retail project, and
this Mortgage shall also serve as a "security agreement" within the meaning
of that term as used in the Uniform Commercial Code as adopted and in force
from time to time in the State of Florida, and shall be operative and
effective as a security agreement in addition to, and not in substitution
for, any other security agreement executed by Borrower in connection with the
Note secured hereby. Borrower agrees to and shall, upon the request of
Xxxxxx, execute and deliver to Lender, in form and content satisfactory to
Lender, such financing statements, descriptions of property and such further
assurances as Lender, in its sole discretion, may from time to time consider
necessary to create, perfect, continue and preserve the lien and encumbrances
hereof and the security interest granted herein upon and in such real and
personal property and fixtures described herein, including all buildings,
improvements, goods, chattels, furniture, furnishings, fixtures, equipment,
apparatus, appliances, and other items of tangible and intangible personal
property herein specifically or generally described and intended to be the
subject of the security interest, lien and encumbrance hereby created,
granted and conveyed. Without the prior written consent of Lender, Borrower
shall not create or suffer to be created, pursuant to the Uniform Commercial
Code, any other security interest in such real and personal property and
fixtures described herein. Upon the occurrence of a default hereunder or
Xxxxxxxx's breach of any other covenants or agreements between the parties
entered into in conjunction herewith, Lender shall have the remedies of a
secured party under the Uniform Commercial Code and, at Xxxxxx's option, the
remedies provided for in this Mortgage. Xxxxxx, at the expense of Borrower,
may or shall cause such statements, descriptions and assurances, as herein
provided in this Paragraph 38, and this Mortgage to be recorded and
re-recorded, filed and refiled, at such times and in such places as may be
required or permitted by law to so create, perfect and preserve the lien and
encumbrance hereof upon all of the Property.
39. Terms of Commitment Survive Closing. The terms and provisions of
the Application/Contract for Mortgage Loan between Xxxxxx and Xxxxxxxx dated
March 12, 1999, as accepted by Xxxxxx on March 17, 1999, and any subsequent
amendments thereto (hereinafter referred to as the "Commitment") are
incorporated herein by reference. All terms and conditions of the Commitment
not expressly set forth in this Mortgage, the Note, and any of the other Loan
Documents additionally securing the Note shall survive the closing hereof and
remain in full force and effect. In the event any conflict exists between the
terms, conditions and provisions of the Commitment and the Loan Documents,
the terms, conditions and provisions of the Loan Documents shall prevail.
40. Successors and Assigns; Terminology. The provisions hereof shall
be binding upon Borrower, its successors and assigns, and inure to the
benefit of Lender, its successors and assigns. Where more than one Borrower
is named herein, the obligations and liabilities of said Borrower shall be
joint and several. Wherever used in this Mortgage, unless the context clearly
indicates a contrary intent or unless otherwise specifically provided herein,
the word "Borrower" shall mean Borrower and/or any subsequent owner or owners
of the Property, the word "Lender" shall mean Lender or any subsequent holder
or holders of this Mortgage, the word "Note" shall mean Note(s) secured by
this Mortgage, the word "person" shall mean an individual, trustee, trust,
corporation, partnership or unincorporated association and the phrase
"successors and assigns" includes the personal representatives and heirs of
any individual. As used herein, the phrase "Reasonable Attorneys' Fees" shall
mean fees charged by attorneys selected by Lender based upon such attorneys'
then prevailing hourly rates as opposed to any statutory presumption
specified by any statute then in effect in the State of Florida.
41. Notices. All notices hereunder shall be deemed to have been duly
given if mailed by United States registered or certified mail, with return
receipt requested, postage prepaid, or by nationally recognized overnight
carrier, to the parties at the following addresses (or at such other
addresses as shall be given in writing by any party to the others), and shall
be deemed complete upon any such mailing:
TO Borrower: Agree Limited Partnership
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
TO Lender: NATIONWIDE LIFE INSURANCE COMPANY
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-2220
Attention: Real Estate Investment
Department, 34T
42. Governing Law. This Mortgage is to be governed by and construed
in accordance with the laws of the State of Florida and, if controlling, by
the laws of the United States.
43. Rights of Lender Cumulative. The rights of Lender arising under
the clauses and covenants contained in this Mortgage shall be separate,
distinct and cumulative and none of them shall be in exclusion of the others;
and no act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provisions, anything
herein or otherwise to the contrary notwithstanding.
44. Modifications. This Mortgage cannot be changed, altered, amended
or modified except by an agreement in writing and in recordable form,
executed by both Xxxxxxxx and Xxxxxx.
45. Exculpation. Notwithstanding anything contained herein to the
contrary, the liability of Borrower is subject to the limited recourse
provisions contained in the exculpation section of the Note, which are
incorporated herein and made a part hereof by reference as if fully set forth
herein.
46. Full Recourse Notwithstanding any provisions in this Mortgage to
the contrary including without limitation, the provisions set forth in the
section captioned "Exculpation" hereinabove, Borrower and the general
partners of Borrower shall be personally liable, jointly and severally, for
the entire indebtedness secured by this Mortgage (including all principal,
interest and other charges) in the event Borrower (i) violates the covenant
governing the placing of subordinate financing on the Property as set forth
in Paragraph 31 of this Mortgage, or (ii) violates the covenant restricting
transfers of the Property or transfer of ownership interests in Borrower as
set forth in Paragraph 30 of this Mortgage.
47. Captions. The captions set forth at the beginning of the various
paragraphs of this Mortgage are for convenience only and shall not be used to
interpret or construe the provisions of this Mortgage.
IN WITNESS WHEREOF, Xxxxxxxx has caused these presents to
be executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of: AGREE LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Agree Realty Corporation, a Maryland
corporation, general partner
By: /s/ Xxxxxxx Xxxxx
----------------------
Xxxxxxx Xxxxx, President
Name: Xxxxxxxx X. Xxxxxxx
----------------------------
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------
(CORPORATE SEAL)
/s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
STATE OF Michigan
COUNTY OF Michigan
The foregoing instrument was acknowledged before me this day of
March 26th, 1999 by Xxxxxxx Xxxxx, as President of Agree Realty Corporation,
a Maryland corporation as general partner of AGREE LIMITED PARTNERSHIP, a
Delaware limited partnership, on behalf of the partnership. He/she is
personally known to me or has produced as identification.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public Xxxxxxxx X. Xxxxxxx
Name:
Commission No.:
My Commission Expires:
(SEAL)
NATIONWIDE LIFE INSURANCE
COMPANY, an Ohio corporation
By: /s/ Xxxxxx X. XxXxxxxxx
/s/ Xxx Xxxxx ------------------------
--------------
Name:Xxx Xxxxx Name: Xxxxxx X. XxXxxxxxx,Vice President
----------- -------------------
Vice President
/s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx (CORPORATE SEAL)
------------------
STATE OF OHIO
COUNTY OF FRANKLIN
The foregoing instrument was acknowledged before me this 25 day of
March, 1999 by Xxxxxx X. XxXxxxxxx , as Vice President of NATIONWIDE LIFE
INSURANCE COMPANY, an Ohio corporation, on behalf of the corporation. He/she
is personally known to me or has produced
as identification.
/s/ Xxx Xxx Xxxxx
-----------------
Notary Public
Name: Xxx Xxx Xxxxx
Commission No.:
My Commission Expires:
(SEAL)
Exhibit "A"
Legal Description
From the Northwest corner Section 36, Township 27 South, [text omitted] 23
East, Polk County, Florida, run South 89 deg [text omitted] 35 sec East,
114.68 feet to the East line of U.S. 98; run thence South 0 deg 13 min 57 sec
West along said East line of U.S. 98, 943.52 feet to the point of beginning
from the point of beginning; run thence South 89 deg 46 min 03 sec East 300
feet to a point; thence North 0 deg 13 min 57 sec East 202.84 feet to a point
in the South line of a proposed Boulevard; thence Eastwardly through a curve
to the right having a central angle of 4 deg 09 min 23 sec, a radius of
977.75 feet an arc length of 70.92 feet to a point of reverse curve; thence
through a curve to the left having a central angle of 22 deg 01 min 28 sec, a
radius of 1077.75 feet an arc length of 414.29 feet to a point; thence South
89 deg 46 min 03 sec East 429.19 feet to a point in said South right of way;
thence South 0 deg 13 min 57 sec West 674.37 feet to a point; thence North 89
deg 46 min 03 sec West 1246.50 feet to a point in the East line of U.S. 98;
thence along said East line of U.S. 98 through a curve to the left having a
central angle of 0 deg 52 min 33 sec a radius of 4244.69 feet, an arc length
of 64.89 feet to a point; thence North 0 deg 13 min 57 sec East along said
East right of way 44 feet; thence South 89 deg 46 min 03 sec East 46 feet to
a point; thence North 0 deg 13 min 57 sec East along said East right of way
465.49 feet to the point of beginning:
LESS AND EXCEPT
A parcel of land in Section 36, Township 27 South, Range 23 East, Polk
County, Florida, being more particularly described as follows: For a point of
reference, commence at the Northwest corner of "Cambridge on the Green"; as
recorded in Plat Book 75, page 27 of the public records of Polk County,
Florida; thence South 0 deg 13 min 57 sec West along the West line of said
"Cambridge on the Green", and the Southerly prolongation of said West line a
distance of 674.37 feet; thence North 89 deg 46 min 03 sec West a distance of
1046.50 feet to the point of beginning of the herein described parcel; thence
North 0 deg 13 min 57 sec East, a distance of 233.00 feet; thence South 73
deg 02 min 59 sec West a distance of 132.41 feet; thence North 89 deg 46 min
03 sec West a distance of 27.00 feet to the East right of way line of U.S.
Highway 98; thence South 0 deg 13 min 57 sec West along said East right of
way line a distance of 85.00 feet; thence continue along said East right of
way line North 89 deg 46 min 03 sec West, a distance of 46.00 feet; thence
continue along said East right of way line, South 0 deg 13 min 57 sec West, a
distance of 44.00 feet to a point of tangency with a curve concave Westerly
having a radius of 4244.69 feet; thence Southerly along the arc of said
curve, through a central angle of 0 deg 52 min 33 sec an arc distance of
64.89 feet; thence South 89 deg 46 min 03 sec East, a distance of 200.00 feet
to the point of beginning of the herein described parcel.
ALSO LESS AND EXCEPT Commence at the Southeast corner of Wedgewood Estates
Boulevard, as recorded in Plat Book 73, page 2, public records of Polk
County, Florida; thence North 89 deg 46 min 03 sec West, along the South
right of way line of said Wedgewood Estates Boulevard, a distance of 429.19
feet to a point of tangency with a curve, concave Northerly having a radius
of 1077.75 feet; thence Westerly along the arc of said curve, through a
central angle of 12 deg 35 min 43 sec an arc distance of 236.91 feet to the
point of beginning of the herein described parcel; thence continue Westerly
along said right of way line and along said curve, through a central angle of
9 deg 25 min 45 sec, an arc distance of 177.37 feet to a point of reverse
curvature with a curve concave Southerly having a radius of 977.75 feet;
thence Westerly along the arc of said curve through a central angle of 4 deg
09 min 23 sec an arc distance of 70.92 feet; thence South 0 deg 13 min 57 sec
West a distance of 202.84 feet; thence South 89 deg 46 min 03 sec East a
distance of 230.00 feet; thence North 0 deg 13 min 57 sec East a distance of
100.00 feet; thence North 12 deg 49 min 39 sec East a distance of 26.57 feet
to the point of beginning.
POLK OR BK 04215 PG 0272
