EXHIBIT 10 (b)
THIS MORTGAGE IS BEING PROVIDED AS ADDITIONAL COLLATERAL TO SECURE THE SAME
INDEBTEDNESS SECURED BY THAT CERTAIN MORTGAGE, SECURITY AGREEMENT, FINANCING
STATEMENT AND FIXTURE FILING WITH ABSOLUTE ASSIGNMENT OF RENTS AND LEASES, OF
EVEN DATE HEREWITH, BY BT ORLANDO LIMITED PARTNERSHIP IN FAVOR OF THE MORTGAGEE
(AS HEREIN DEFINED), RECORDED IN OFFICIAL RECORDS BOOK 6361, PAGE 6248, OF THE
PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA (THE "BT ORLANDO MORTGAGE").
DOCUMENTARY STAMP AND INTANGIBLE TAXES IN THE REQUISITE AMOUNTS WERE PAID IN
CONJUNCTION WITH THE RECORDATION OF THE BY ORLANDO MORTGAGE. AS SUCH, NO
ADDITIONAL DOCUMENTARY STAMP OR INTANGIBLE TAXES ARE DUE IN CONNECTION HEREWITH.
THIS IS A BALLOON MORTGAGE SECURING A VARIABLE (ADJUSTABLE) RATE OBLIGATION.
ASSUMING THAT THE INITIAL RATE OF INTEREST WERE TO APPLY FOR THE ENTIRE TERM OF
THE MORTGAGE, THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL BALANCE DUE UPON
MATURITY WOULD BE APPROXIMATELY $10,000,000.00, TOGETHER WITH ACCRUED INTEREST,
IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS
MORTGAGE. THE ACTUAL BALANCE DUE UPON MATURITY MAY VARY DEPENDING ON CHANGES IN
THE RATE OF INTEREST.
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING WITH
ABSOLUTE ASSIGNMENT OF RENTS AND LEASES
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING WITH
ABSOLUTE ASSIGNMENT OF RENTS AND LEASES
THIS DOCUMENT ALSO CONTAINS A FINANCING STATEMENT FILED AS A FIXTURE FILING IN
ACCORDANCE WITH SECTION 679.313 OF THE FLORIDA UNIFORM COMMERCIAL CODE AND IS TO
BE RECORDED IN THE OFFICE WHERE A MORTGAGE ON THE REAL ESTATE ENCUMBERED HEREBY
WOULD BE RECORDED.
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE
FILING WITH ABSOLUTE ASSIGNMENT OF RENTS AND LEASES ("MORTGAGE"), is made this
1st day of October 2001, by THACKERAY CORPORATION, a Delaware corporation
("MORTGAGOR"), whose mailing address is 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000 to CANPARTNERS REALTY HOLDING COMPANY IV LLC, a Delaware
limited liability company ("MORTGAGEE"), whose mailing address is 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, its successors and
assigns.
ARTICLE I
DEFINITIONS
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In addition to any other terms defined herein, within this Mortgage,
unless otherwise required by the context, the following terms shall have the
meanings indicated, any capitalized term not defined herein shall have the same
meaning as set forth in the Loan Agreement (as hereinafter defined):
1.01 Accounts Receivable means all right, title and interest of
Mortgagor arising from the operation of the Property in and to all payments for
goods or property sold or leased or for services rendered in connection with the
Property and/or any Improvements, but not otherwise, whether or not yet earned
by performance, and not evidenced by an instrument or chattel paper, including,
without limiting the generality of the foregoing, (i) all accounts, contract
rights, book debts, and notes arising from any operations on the Property and/or
any Improvements or arising from the sale, lease or exchange of goods or other
property in connection with the Property and/or any Improvements, but not
otherwise, and/or the performance of services in connection with the Property
and/or any Improvements, but not otherwise, (ii) Mortgagor's rights to payment
from any consumer credit charge card organizations or entitles which sponsor and
administer such cards as the American Express Card, the Visa Card and the Master
Card, but only in connection with the Property and/or any Improvements, (iii)
Mortgagor's rights in, to and under all purchase orders for goods, services or
other property in connection with the Property and/or any Improvements, but not
otherwise, (iv) Mortgagor's rights to any goods, services or other property in
connection with the Property and/or any Improvements, but not otherwise,
represented by any of the foregoing, (v) monies due to or to become due to
Mortgagor under all contracts for the sale, lease or exchange of goods or other
property in connection with the Property and/or any Improvements, but not
otherwise, and/or the performance of services in connection with the Property
and/or any Improvements, but not otherwise, including the right to payment of
any interest or finance charges in respect thereto (whether or not yet earned by
performance on the part of Mortgagor) and (vi) all collateral security and
guaranties of any kind given by any person or entity with respect to any of the
foregoing. Accounts Receivable shall include those now existing or hereafter
created, substitutions therefor, proceeds (whether cash or non-cash, movable or
immovable, tangible or intangible) received upon the sale, exchange, transfer,
collection or other disposition or substitution thereof and any and all of the
foregoing and proceeds therefrom.
1.02 Additional Property means all additional estates in the Property
and/or any Improvements and development rights in connection with the Property,
but not otherwise, hereafter acquired by Mortgagor for use in connection with
the Property and/or the development of the Property.
1.03 Borrower means BT Orlando Limited Partnership, a Florida limited
partnership.
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1.04 BT Orlando Mortgage means the Mortgage, Security Agreement,
Financing Statement And Fixture Filing by BT Orlando to Mortgagee of even date
herewith encumbering the Property described therein.
1.05 Collateral means, as the context requires, all or any of the
Personalty, the Fixtures, the Leases, the Rents, the Property, the Additional
Property, the Improvements and the Accounts Receivable.
1.06 Eligible Assignee means any Person engaged in the business of
commercial real estate lending.
1.07 Fixtures means all materials, supplies, equipment, apparatus and
other items now or hereafter owned by Mortgagor and attached to, installed in or
used in connection with (temporarily or permanently) any Improvements on the
Property, including, but not limited to, any and all partitions; window screens
and shades; drapes, carpeting and other floor coverings; sinks; water closets;
water basins; faucets and other plumbing fixtures; storm shutters and awnings;
pumps; motors; valves; elevators and escalators; engines; wire and wiring;
boilers; furnaces; pipes; plumbing; sprinkler systems; irrigation systems; fire
extinguishing apparatus and equipment; communication equipment; computers and
computerized equipment; security systems and devices; water tanks; heating,
ventilating, incinerating, air conditioning and air cooling equipment and
systems; gas and electric machinery; disposals, dishwashers, refrigerators,
ranges and other appliances; any property listed under the definition of
"PERSONALTY" which are fixtures under Florida law; and equipment and facilities
of all kinds which constitute fixtures under Florida law as the same may be
amended or any successor statute and all replacements and substitutions
therefor.
1.08 Governmental Authority means any and all courts, boards,
bureaus, agencies, commissions, departments, offices or authorities of any
nature whatsoever of any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx,
xxxxxxxxx, xxxx or otherwise) whether now or hereafter in existence.
1.09 Guarantor means (individually or collectively, or both, as the
context may require) those persons or entities, if any, now or hereafter
guaranteeing repayment of the Indebtedness Secured Hereby (as defined herein),
or any portion thereof, and/or satisfaction of, or continued compliance with,
the Obligations or any portion thereof.
1.10 Hazardous Materials has the meaning ascribed thereto in Section
3.20 of this Mortgage below.
1.11 Impositions means all real estate and personal property taxes,
assessments, water, gas, sewer, electricity and other utility rates and charges,
charges for any easement, license or agreement maintained for the benefit of the
Mortgaged Property, and all other taxes, charges and assessments and any
interest, costs or penalties with respect thereto, of any kind and nature
whatsoever which at any time prior to or after the execution hereof may be
assessed, levied or imposed against, or otherwise related to the Mortgaged
Property, the use, occupancy, operation or enjoyment thereof and/or the lien of
this Mortgage on the Mortgaged Property or the debt secured hereby.
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1.12 Improvements means any and all buildings, sheds, storage areas,
warehousing areas, open or covered parking areas, parking garages or structures,
other structures, fences, curbs, walls, sidewalks, walkways, paved parking
areas, pavement, recreational facilities, landscaping and all other real
property improvements, and any and all additions, alterations, or appurtenances
thereto, now or at any time hereafter situated, placed, constructed upon or for
the benefit of the Property or any part thereof and shall include, unless the
context otherwise requires, all Fixtures.
1.13 Indebtedness Secured Hereby means: (a) payment of that certain
Promissory Note (the "Note") of even date herewith, executed by Borrower, as
Maker to the order of Mortgagee, as Holder, in the original principal amount of
TEN MILLION DOLLARS ($10,000,000.00) with interest thereon and all other sums
payable thereunder according to the terms and conditions thereof, together with
any replacements, substitutions, modifications, amendments, extensions or
renewals thereof (the "Indebtedness"); and (b) payment to Mortgagee, its
successors and assigns, at the times demanded and with interest at the Default
Rate (as defined in the Note) in an Event of Default, to accrue from the date of
advance, of all sums advanced, if any, in protecting the interests of Mortgagee
under this Mortgage and any and all other Loan Documents and payment of
insurance premiums covering Improvements, and payment of principal and interest
on prior liens, and payment of expenses and attorneys' fees and professionals'
fees herein provided for and payment of any fees herein provided for and payment
of any Mortgagee's fees herein provided for, and any and all sums advanced under
this Mortgage from time to time.
1.14 Insurance Policies means any policies of insurance required to
be maintained by Mortgagor in force and effect on the Mortgaged Property in
accordance with section 3.07 hereof.
1.15 Leases means any and all leases, subleases, licenses,
concessions, occupancy, rental and use agreements, registration cards or other
agreements (written or oral), now or hereafter in effect which name the
Mortgagor as the lessor and grant a possessory interest in and to, or the right
to use, occupy or generate income from, in or around the Property and/or any
Improvements, or any portion thereof, if any, all extensions, amendments and
modifications thereto, whether before or after the filing by or against
Mortgagor of any petition for relief under 11 U.S.C. sec. 101 et seq., as the
same may be amended from time to time (the "BANKRUPTCY CODE") and all guarantees
of, and security for the performance of any of the obligations and payments
thereunder.
1.16 Legal Requirements means: (a) all judicial decisions,
ordinances, orders, decrees, rules, regulations, permits, statutes or
requirements of any court or Governmental Authority, and any requirements, terms
or conditions contained in any restrictions, restrictive covenants, easements,
licenses or leases, zoning stipulations, subdivision plats or other instruments
or documents affecting all or any portion of the Mortgaged Property and/or the
construction, development or use of the Mortgaged Property, including, but not
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limited to, any of those relating to fire, safety, environmental protection,
conservation, parking, or building and sign codes and the Americans with
Disabilities Act ("ADA"); and (b) Mortgagor's or any Guarantors' presently or
subsequently existing articles or certificate of incorporation, bylaws,
partnership agreements, limited partnership certificates, joint venture
agreements, limited liability company articles of organization and/or operating
agreements, trust agreements or other form of business organization or entity
documents.
1.17 Loan Agreement means that certain Loan Agreement of even date
herewith executed by Borrower and Mortgagee.
1.18 Loan Documents means, collectively, this Mortgage, the BT
Orlando Mortgage, the Loan Agreement, financing statements, the Note, the
documents referenced in Schedule 1.1 attached to the Loan Agreement and any and
all other documents and guarantees now or hereafter executed by Borrower,
Mortgagor, or by any other Person to evidence, secure or guaranty the payment of
the Indebtedness Secured Hereby (or any part thereof) or the performance and
discharge of the Obligations (or any portion thereof).
1.19 Mortgaged Property means, as required by the context, all or any
of the Improvements, Fixtures, Personalty, Property, Additional Property,
Leases, Rents and the Accounts Receivable.
Mortgagor acknowledges that certain of the descriptions of items
comprising the Mortgaged Property in the preceding paragraphs may be duplicative
or overlapping, and that it is the express intent and agreement of Mortgagor
that all of such descriptions (including without limitation any descriptions
within a single section or subsection) shall be construed as being cumulative
and not limiting. The terms "GOODS," "EQUIPMENT," "INVENTORY," "ACCOUNTS,"
"INSTRUMENTS," "CHATTEL PAPER," "GENERAL INTANGIBLES," "PROCEEDS" and "PRODUCTS"
shall (unless the context clearly indicates otherwise) also have the meanings
provided for those terms in the definitions contained in the Uniform Commercial
Code as enacted from time to time in the State in which the Property is located
(the "UCC").
Mortgagor further specifically understands and agrees that all right,
title and interest of Mortgagor in and to all extensions, improvements,
betterments, renewals, substitutions and replacements of, and all additions and
appurtenances to, the Mortgaged Property, hereafter acquired by or released to
Mortgagor, or constructed, assembled or placed by Mortgagor on the Property, and
all conversions of the security constituted thereby, immediately upon such
acquisition, release, construction assembly, placement or conversion, as the
case may be, and in each such case, without any further grant, encumbrance,
conveyance, assignment or other act by Mortgagor, shall become subject to the
lien of this Mortgage as fully and completely and with the same effect as though
now owned by Mortgagor and specifically described herein, but at any and all
times Mortgagor will execute and deliver to Mortgagee, upon request, any and all
such further assurances, deeds, conveyances, or assignments thereof or security
interests therein as Mortgagee may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien of this Mortgage.
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1.20 Mortgagee means the specific Mortgagee named above and any
subsequent owner and holder of the Note (as defined below) and the beneficial
interest under this Mortgage.
1.21 Mortgagor's Business means the ownership, management, leasing,
maintenance, repair, replacement and operation of the Mortgaged Property for any
lawful purpose.
1.22 Mortgagor means the person named as the "MORTGAGOR" at the
outset of this Mortgage.
1.23 Obligations means any and all of the covenants, warranties,
representations and other obligations (other than to repay the Indebtedness
Secured Hereby) including but not limited to the Obligations as defined in the
Loan Agreement, made or undertaken by Borrower, Mortgagor or any other Person to
Mortgagee as set forth in the Loan Documents, but not as to any indebtedness
unrelated to the Note or the covenants under the Loan Documents as to the Note
and the Collateral, it being the intent that if the Guarantees extend to debt
other than the foregoing such debt is not included in the sums secured by this
Mortgage.
1.24 Personalty means all of the right, title and interest of
Mortgagor now or hereafter existing in and to the following now or hereafter
located in, upon, within or about or used in connection with any construction,
use, operation or occupancy of the Property and/or any Improvements and any
business or activity conducted thereon or therein, together with all
accessories, additions, accessions, renewals, replacements and substitutions
thereto or therefor and the proceeds and products thereof: (a) all materials,
supplies, inventories, articles of personal property (including, but not limited
to, chairs, tables, carpeting, curtains, shades, screens, paintings, hangings,
pictures, divans, keys or other entry systems, bars, bar fixtures, liquor or
other drink dispensers, icemakers, radios, intercom and paging equipment,
computers, electric and electronic equipment, dictating equipment, private
telephone systems, medical equipment, potted plants, heating, lighting and
plumbing fixtures, fire prevention and extinguishing apparatus, cooling and
air-conditioning systems, elevators, escalators, fittings, plants, apparatus,
stoves, ranges, refrigerators, laundry machines, tools machinery, engines,
dynamos, motors, boilers, incinerators, switchboards, conduits, compressors,
vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call
systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors,
cabinets, lockers, shelving, spotlight equipment, dishwashers, garbage
disposals, washers and dryers, furnishings, office supplies, construction
materials, vehicles, machinery, computer hardware and software, stationery,
maintenance equipment, window washing equipment, repair equipment and other
equipment) and other tangible property of every kind and nature whatsoever
arising out of or in connection with the Property and/or any Improvements, but
not otherwise, owned by Mortgagor, or in which Mortgagor has or shall have an
interest; (b) all books, ledgers, records, accounting records, files, tax
6
records and returns, policy manuals, papers, correspondence, and electronically
recorded data arising out of or in connection with the Property and/or any
Improvements, but not otherwise, (c) all general intangibles, instruments,
money, accounts, accounts receivable, notes, certificates of deposit, chattel
paper, letters of credit, chooses in action, good will, rights to payment of
money, rents, rental fees, equipment fees and other amounts arising out of or in
connection with the Property and/or any Improvements, but not otherwise, payable
by Persons who utilize the Property or any of the Improvements or paid by
persons in order to obtain the right to use the Property and/or any of the
Improvements, whether or not so used; (d) trademarks, service marks, logos,
copyrights, trade dress, trade names, licenses, sales contracts, advertising
materials, deposits, plans and specifications, drawings, working drawings,
studies, maps, and surveys arising out of or in connection with the Property
and/or any Improvements, but not otherwise, (e) all agreements, contracts,
certificates, instruments, franchises, permits, licenses, plans, specifications
and other documents arising out of or in connection with the Property and/or any
Improvements, but not otherwise, now or hereafter entered into, and all rights
therein and thereto, respecting or pertaining to the use, occupancy,
construction, management or operation of the Property and/or any Improvements
and any part thereof or respecting any business or activity conducted on the
Property and any part thereof (including, but not limited to any soils,
environmental, engineering or other reports, architectural and engineering
contracts, construction contracts, construction management contracts, surety
bonds, feasibility and market studies, management and operating agreements,
service agreements and contracts, landscape maintenance agreements, security
service and other services agreements and vendors agreements arising out of or
in connection with the Property and/or any Improvements, but not otherwise) and
all right, title and interest of Mortgagor therein and thereunder, including,
without limitation, the right, upon the happening of any Event of Default
hereunder, to receive and collect any sums payable to Mortgagor thereunder; (f)
all compensation, awards and other payments or relief (and claims therefor) made
for a taking by eminent domain, or by any event in lieu thereof (including,
without limitation, property and rights and interests in property received in
lieu of any such taking), of all or any part of the Mortgaged Property
(including without limitation, awards for severance damages), together with
interest thereon, and any and all proceeds (or claims for proceeds) and unearned
premiums on any insurance policies covering the Mortgaged Property, together
with interest thereon, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Mortgaged Property; (g) any and all claims or demands
against any Person with respect to damage or diminution in value to the
Mortgaged Property or damage or diminution in value to any business or other
activity conducted on the Property; (h) any and all security deposits, deposits
of security or advance payments made to others with respect to: (i) insurance
policies relating to the Mortgaged Property; (ii) taxes or assessments of any
kind or nature affecting the Mortgaged Property; (iii) utility services for the
Property and/or any Improvements; (iv) maintenance, repair or similar services
for the Mortgaged Property or any other services or goods to be used in any
business or other activity conducted on the Property; (i) any and all
7
authorizations, consents, licenses, permits and approvals of and from all
Persons required from time to time in connection with any construction, use,
occupancy or operation of the Property, the Improvements, or any business or
activity conducted thereon or therein or in connection with the operation,
occupancy or use thereof; (j) all warranties, guaranties, utility or street
improvement bonds, utility contracts, telephone exchange numbers, yellow page or
other directory advertising and the like, arising out of or in connection with
the Property and/or any Improvements, but not otherwise, (k) all goods, contract
rights, and inventory arising out of or in connection with the Property and/or
any Improvements, but not otherwise, (1) all leases and use agreements of
machinery, equipment and other personal property arising out of or in connection
with the Property and/or any Improvements, but not otherwise (m) all insurance
policies covering all or any portion of the Property and/or any Improvements;
(n) any funds held in escrow by Mortgagee or other Person for Mortgagee's
benefit arising out of or in connection with the Property and/or any
Improvements, but not otherwise, (o) all names by which the Property and/or any
Improvements is/are now or hereafter known; (p) all interests in the security
deposits of tenants arising out of or in connection with the Property and/or any
Improvements, but not otherwise, (q) all management agreements, blueprints,
plans, maps, documents, books and Records relating to the Property and/or any
Improvements; (r) the proceeds from sale, assignment, conveyance or transfer of
all or, any portion of the Mortgaged Property or any interest therein, or from
the sale of any goods, inventory or services from, upon or within the Property
and/or any Improvements (but nothing contained herein shall be deemed a consent
by Mortgagee to such sale, assignment, conveyance or transfer except as
expressly provided in this Mortgage); (s) any property listed under the
definition of "Fixtures" which are not fixtures under Florida law; (t) all other
property arising out of or in connection with the Property and/or any
Improvements, but not otherwise (other than that which constitutes "fixtures"
under Florida law) of any kind or character as defined in or subject to the
provisions of the Uniform Commercial Code, Secured Transactions, as amended; and
(u) all proceeds of the conversions, voluntarily or involuntarily, of any of the
foregoing into cash or liquidated claims.
1.25 Property means the real estate or interest therein described on
EXHIBIT "A" attached hereto and incorporated herein by reference; all easements,
rights-of-way or use, rights, strips and gores of land, streets, ways, alleys,
passages, sewer rights, water, water courses, water rights and powers, air
rights and development rights, and all estates, rights, titles, interests,
privileges, liberties, servitudes, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way now or hereafter belonging, relating or
pertaining to the land described on EXHIBIT "A" and all land lying in the bed of
any street, road or avenue, opened or proposed, in front of or adjoining the
land, to the center line thereof and all the estates, rights, title, interests,
dower and rights of dower, courtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Mortgagor in and to the land described
on EXHIBIT "A" and any Improvements and every part and parcel thereof, with the
appurtenances thereto; all water stock, water and water rights, to the extent
the same constitutes any interest in real property; all mineral, oil and gas
rights pertaining thereto; all present and future rights under or with respect
to: (a) any declarations or restrictions governing or imposing rights or
responsibilities on or with respect to any subdivisions, horizontal property
8
regimes, condominiums, planned area developments, planned unit developments or
master plans which are partially or wholly located on or affect the real
property described in EXHIBIT "A" attached hereto; (b) any design review or
architectural review committee and any property owners' or similar association
described in or created by the documents referred to in the foregoing clause
(a), together with any voting rights therein; and (c) any and all other
documents and instruments and any amendments relating to the operation,
organization, control or development of the Property.
1.26 Rents except to the extent that the same constitute personal
property under Florida law, means all income, rents, issues, profits, revenues,
deposits, accounts and other benefits from the Property and/or the Improvements
and any operations thereon, including, without limitation, all revenue, all
receivables, customer obligations, installment payment obligations and other
obligations now existing or hereafter arising or created out of sale, lease,
sublease, license, concession or other grant of the right of the possession, use
or occupancy of all or any portion of the Property and/or any Improvements, or
personalty located thereon, or rendering of services by Mortgagor in connection
with the Property and/or any Improvements, or any entity generating such income
for the benefit of Mortgagor including, without limitation, any operator or
manager of the Property and/or the Improvements or acquired from others
including, without limitation, from the rental of any office space, retail
space, commercial space, or other space, halls, stores or offices located on the
Property including any deposits securing leasing of such space, from the exhibit
or sale of space of every kind with respect to the Property and/or any
Improvements, from the license, lease, sublease and concessions on the Property
and/or the Improvements, from fees and rentals, food and beverage wholesale and
retail sales, service charges, vending machine sales arising out of or in
connection with the Property and/or the Improvements, but not otherwise, and
from proceeds if any, from business interruption or other loss of income
insurance relating to the use, enjoyment and occupancy of the Property and/or
Improvements and any cash or security deposits in connection therewith, whether
paid or accruing before or after the filing by or against Mortgagor of any
petition for relief under the Bankruptcy Code.
ARTICLE II
GRANT
-----
Mortgagor hereby irrevocably grants, conveys, transfers and assigns
to Mortgagee, its successors and assigns, in trust, with power of sale and right
of entry and possession to the extent that right of entry and possession is
hereinafter provided, the Mortgaged Property (other than the Personalty), and
grants to Mortgagee a security interest in and to the Personalty for the purpose
of securing, in such order of priority as Mortgagee may elect:
(a) Payment of the Note with interest thereon and all other sums
payable thereunder according to the terms and conditions thereof, together
with any replacements, substitutions, modifications, amendments, extensions
or renewals thereof.
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(b) Payment to Mortgagee, its successors and assigns, at the times
demanded and with interest at the Default Rate (as defined in the Note), to
accrue from the date of advance, of all sums advanced, if any, in
protecting the interests of Mortgagee under this Mortgage and any and all
other Loan Documents and payment of insurance premiums covering
Improvements, and payment of principal and interest on prior liens, and
payment of expenses and attorneys fees and professionals' fees herein
provided for and payment of any Mortgagee's fees herein provided for, and
any and all sums advanced under this Mortgage from time to time.
(c) Performance and payment in full when due of all other Obligations.
PROVIDED HOWEVER, that if Mortgagor shall pay, or cause to be paid,
to Mortgagee the Indebtedness Secured Hereby at the time and in the manner
stipulated herein, and in the Note, and shall pay and perform all of the
Obligations, including, but not limited to payment of all sums under any of the
Loan Documents, and no Event of Default hereunder shall then exist, then the
estate, right, title and interest of the Mortgagee in the Mortgaged Property
shall cease, terminate and become void, and upon proof being given to the
satisfaction of Mortgagee that the Indebtedness Secured Hereby has been paid or
satisfied, and all of the Obligations paid and performed, and upon payment of
all other fees, costs, charges, expenses and liabilities chargeable or incurred
or to be incurred by Mortgagee, Mortgagee shall, upon receipt of the written
request by Mortgagor, release and discharge this Mortgage of record (but the
provisions of Section 3.20 below shall survive any such release or discharge).
ARTICLE III
COVENANTS
---------
Mortgagor warrants and represents to, and covenants and agrees with
Mortgagee as follows:
3.01 Title and Property.
(a) Mortgagor warrants that it has title to an indefeasible fee simple
estate in and to the Mortgaged Property, subject to no liens or
encumbrances, except only the lien of ad valorem taxes which may be due but
not yet payable, the lien of the Senior Mortgage (subject to the
Intercreditor Agreement) and those matters set forth on EXHIBIT "B"
attached hereto and incorporated herein by reference. Mortgagor further
warrants that it has good right and lawful authority to convey the
Mortgaged Property in the manner and form herein provided; that Mortgagor
has full power and authority to convey the Mortgaged Property in the manner
and form herein provided or intended hereafter to be done; that Mortgagor
fully and absolutely waives and releases all rights and claims it may have
in or to said lands, tenements and property as a homestead declaration or
exemption, or other exemption, under and by virtue of any statute or other
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law of the State of Florida now existing or which may hereafter be passed
in relation thereto; that subject to the Senior Mortgage, this Mortgage is
and shall remain a valid and enforceable second lien on the Mortgaged
Property, subject only to the aforesaid matters; that Mortgagor and its
successors and assigns shall warrant and defend the same and the priority
of the lien of this Mortgage forever against the lawful claims and demands
of all persons whomsoever, and that this covenant shall not be extinguished
by any foreclosure hereof but shall run with the land.
(b) Except as otherwise expressly provided herein, Mortgagor has and
shall maintain title to the Collateral including any additions or
replacements thereto free of all security interests, liens and
encumbrances, other than the Senior Loan, the security interest granted
hereunder and other than as disclosed to and accepted by Mortgagee in
writing, and has good right to subject the Collateral to the security
interest granted hereunder.
(c) Mortgagor shall, at the cost of Mortgagor, and without expense to
Mortgagee, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, deeds of trust, assignments, UCC financing
statements, notices of assignments, transfers, other documents or
instruments and assurances as Mortgagee shall from time to time reasonably
require, for the better assuring, conveying, assigning, creating,
perfecting, renewing, transferring and confirming unto Mortgagee the
Mortgaged Property and rights hereby conveyed or assigned or intended now
or hereafter to be, or which Mortgagor may be or may hereafter become bound
to convey or assign to Mortgagee, or for carrying out the intention of
facilitating the performance of the terms of this Mortgage and, on demand,
shall execute and deliver one or more financing statements, chattel
mortgages or comparable security instruments, to evidence more effectively
the lien hereof upon the Mortgaged Property.
(d) Mortgagor forthwith upon the execution and delivery of this
Mortgage and thereafter from time to time, shall cause this Mortgage, and
any security instrument creating a lien or evidencing the lien hereof upon
the Collateral and each instrument of further assurance to be filed,
registered or recorded in such manner and in such places as may be required
by any present or future law or order to publish notice of and fully to
protect the lien hereof upon the interest of Mortgagee in the Mortgaged
Property.
(e) Mortgagor shall pay all filing, registration or recording fees,
and all expenses incident to the preparation, execution and acknowledgment
of this Mortgage, any Mortgage supplemental hereto, any security instrument
with respect to the Mortgaged Property including the Collateral and any
instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments and
charges arising out of or in connection with the execution and delivery of
the Note, this Mortgage, any Mortgage supplemental hereto, any security
instrument with respect to the Mortgaged Property, including the Collateral
or any instrument of further assurance.
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(f) Mortgagor shall do all things necessary to preserve and keep in
full force and effect its entity existence, franchises, rights and
privileges under the laws of the state of its formation and under the laws
of the state in which the Mortgaged Property is located (in whole or in
part) and shall comply with all applicable environmental laws (as defined
below) and Legal Requirements applicable to Mortgagor or to the Mortgaged
Property or any part thereof.
(g) Mortgagor shall not, without filing the requisite financing
statements or amendments thereto in order to continue the perfection and
priority of Mortgagee's security interests in the Mortgaged Property,
change Mortgagor's name, identity or structure or cause or permit to occur
any other event that would require Mortgagee to file a new financing
statement under Florida law or any other provisions of the Uniform
Commercial Code - Secured Transactions. If Mortgagor does, causes or
permits any of the foregoing to occur, without such a filing effective to
continue the perfection and priority of Mortgagee's security interests in
the Mortgaged Property, such shall constitute an Event of Default
hereunder.
(h) Mortgagor warrants that the Property is assessed for tax purposes
as a separate tax parcel that does not include any other property.
(i) All utility services necessary for occupancy of the Property
(including, without limitation, water, storm and sanitary sewer, electric
and telephone facilities) are available to the Property.
3.02 Mortgagor's Business. The Mortgaged Property shall be
continuously maintained in a safe and prudent manner by Mortgagor.
3.03 Regarding Mortgagor.
(a) Mortgagor is a Delaware corporation. Mortgagor is qualified to do
business and is duly authorized and empowered to do business in the State
of Florida. Mortgagor has the requisite power and authority to (i) to
execute and deliver this Mortgage and the other Loan Documents to which it
is a party; and (ii) bind the Mortgagor by entering into this Mortgage and
other Loan Documents to which it is a party. The execution and delivery of
this Mortgage and the other Loan Documents to which it is a party has been
duly authorized by all requisite action of Mortgagor and each is the valid
and legally enforceable obligation of Mortgagor, enforceable according to
their respective terms.
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(b) Mortgagor is not in default under any agreement to which it is a
party, the effect of which will materially or adversely affect performance
by Mortgagor of its obligations pursuant to and as contemplated by the
terms and provisions of this Mortgage and the other Loan Documents to which
it is a party. Neither the execution and delivery of this Mortgage nor
compliance with and performance of the terms and provisions hereof, will:
(i) violate any presently existing Legal Requirement applicable to
Mortgagor, or any existing applicable order, writ, injunction or decree of
any Governmental Authority, (ii) conflict or be inconsistent with or result
in any breach of any of the terms, covenants, conditions or provisions of,
or constitute a default under any indenture, mortgage, instrument,
document, agreement, lease, promissory note, or contract of any kind which
creates, represents, evidences or provides for any lien, charge or
encumbrance upon any of the assets of Mortgagor or to which Mortgagor is a
party or by which Mortgagor or any of its assets may be bound, or in the
event of any such violation, conflict, inconsistency, breach or default,
the required consent or waiver of the other party or parties thereto has
been validly granted, is in full force and effect and is valid and
sufficient therefor.
(c) There are no actions, suits, investigations, or proceedings of any
kind (including, without limitation, any condemnation or similar action)
pending or, to the knowledge of Mortgagor, threatened against or affecting
Mortgagor or the Mortgaged Property before any Governmental Authority other
than those which may have been disclosed to the Mortgagee in writing.
(d) Mortgagor shall promptly notify Mortgagee of each and any action,
suit or proceeding commenced as a result of injury, damage or liability
occurring in, on or about the Property, where the amount in controversy is
or could be expected to be in excess of $25,000, and Mortgagor shall, upon
Mortgagee's request, at Mortgagor's expense, resist and defend any action,
suit or proceeding based thereon, or cause the same to be resisted and
defended by counsel designated by Mortgagor or Mortgagor's insurer and
approved in writing by Mortgagee, such approval not to be unreasonably
withheld, conditioned or delay.
(e) Mortgagor shall promptly notify Mortgagee if Mortgagor learns of
the existence of a state of facts that constitute an Event of Default
hereunder.
(f) Mortgagor shall promptly give written notice to Mortgagee of:
(i) all litigation affecting Mortgagor other than litigation
fully covered by insurance (subject to permitted deductibles) where
the amount in controversy is in excess of $25,000;
(ii) any dispute which may exist between Mortgagor and any
Governmental Authority which would have a material adverse effect on
Mortgagor or the Mortgaged Property; and
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(iii) any breach or default in the observance of the covenants or
obligations set forth in the Senior Loan Documents or any notice
provided under or related to the Senior Loan Documents.
(g) Mortgagor shall obtain, preserve and keep in full force and effect
all licenses, permits, approvals, certificates, Leases and agreements
required by any Governmental Authority or otherwise required as to the
ownership of the Mortgaged Property and any operations on the Property.
Except as specifically provided for in this Mortgage, Mortgagor shall not
assign, transfer or in any manner change such certificates, licenses or
permits without first receiving the written consent of Mortgagee.
3.04 Note and Tax and Insurance Reserve. It shall be a default
hereunder if Borrower does not promptly and punctually pay all principal and
interest and all other sums to become due in respect of the Note, according to
the terms thereof or pay to Mortgagee (or such other Person designated or
approved by Mortgagee) in accordance with the terms and conditions of the Loan
Agreement, any Tax and Insurance Reserve required to be paid by Borrower under
the Loan Agreement.
3.05 Maintenance and Repair. Mortgagor shall keep the Mortgaged
Property in good and safe condition and shall not commit or permit any waste
thereof or any destruction or disrepair to occur thereto. Except as otherwise
expressly provided in this Mortgage, the Loan Agreement or by written consent of
Mortgagee, Mortgagor shall not remove any Improvements or any Collateral from
the Property or demolish any Improvements, nor materially alter any of the
Mortgaged Property. Mortgagor shall permit Mortgagee, its agents and authorized
representatives the opportunity to inspect the Mortgaged Property, including the
interior of any Improvements, at any reasonable times subject to the rights of
any lessees thereof.
3.06 Compliance With Laws/Maintenance of Permits. Mortgagor shall
comply with all Legal Requirements affecting the Mortgaged Property and any
operations thereon and shall pay all fees or charges of any kind in connection
therewith. Mortgagor shall not by act or omission, permit any property or Person
which is not subject to this Mortgage to rely on the Mortgaged Property or any
part thereof or any interest therein to fulfill any governmental requirement for
the existence or use of such property or Person; and the Mortgaged Property
shall not rely on any property or Person which is not subject to this Mortgage
to fulfill any governmental requirement for the existence or use of the
Property. Mortgagor shall not by act or omission impair the integrity of the
Property as a single separate zoning parcel separate and apart from all other
parcels. Any failure of Mortgagor or the Mortgaged Property to comply with the
requirements of the ADA with respect to the Mortgaged Property shall be a breach
of this Mortgage.
3.07 Insurance.
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(a) Mortgagor shall obtain and maintain, or cause to be maintained,
insurance for Mortgagor and the Property providing at least the following
coverages:
(i) Property Insurance. None presently required as there are no
Improvements on the Property. Should Improvements be constructed on
the Property, then Insurance with respect to the Improvements and
building equipment insuring against any peril included within the
classification "All Risks of Physical Loss" ("Special Form") in
amounts at all times sufficient to prevent Mortgagee from becoming a
co-insurer within the terms of the applicable policies and under
applicable law, but in any event such insurance shall be maintained in
an amount equal to the full insurable value of the Improvements and
building equipment, the term "full insurable value" to mean the actual
replacement cost of the Improvements and building equipment (without
taking into account any depreciation, and exclusive of excavations,
footings and foundations, landscaping and paving) determined annually
by an insurer, a recognized independent insurance broker or an
independent appraiser selected and paid by Mortgagor and in no event
less than the coverage required pursuant to the terms of any Lease.
Mortgagor shall also maintain insurance against loss or damage to such
furniture, furnishings, fixtures, equipment and other items (whether
personalty or fixtures) included in the Property and owned by
Mortgagor from time to time, to the extent applicable, in the amount
of the cost of replacing the same, in each case, subject to annual
valuation. Each policy or policies shall contain a replacement cost
endorsement and either an agreed amount endorsement (to avoid the
operation of any co-insurance provisions) or a waiver of any
co-insurance provisions, all subject to Mortgagee's approval. The
maximum deductible shall be $25,000.00. The policy shall include an
ordinance or law coverage endorsement which will contain Coverage A:
"Loss Due to Operation of Law" (with a minimum liability limit equal
to Replacement Cost With Agreed Value Endorsement), Coverage B:
"Demolition Cost" and Coverage C: "Increased Cost of Construction"
coverages.
(ii) Liability Insurance. Mortgagor will obtain and keep in force
general accident and public liability insurance against personal
injury, bodily injury, death and property damage occurring upon, in or
about the Property in amounts and coverages as Mortgagor now carries
as evidenced by the Certificate of Insurance Mortgagor has delivered
to Mortgagee with a $1,000,000.00 limit per occurrence and $10,000,000
aggregate limit. Should improvements be constructed on the Property,
Mortgagee hereby retains the right to periodically review the amount
of said liability insurance being maintained by Mortgagor and to
require an increase in the amount of said liability insurance should
Mortgagee deem an increase to be reasonably prudent and commercially
reasonable given rates and available coverages as well as coverages
generally carried as to then existing like kind uses and risks in the
vicinity of the Property under then existing circumstances, as may be
applicable.
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(iii) Workers' Compensation Insurance. None now required, but
should Improvements be constructed on the Property, Statutory workers'
compensation insurance with respect to any work on or about the
Property covering all persons subject to the workers' compensation
laws of the state in which the Property is located.
(iv) Business Interruption. None now required, but if
Improvements are constructed on the Property, business interruption
insurance in an amount sufficient to avoid any co-insurance penalty
and to provide proceeds which will cover a period of not less than one
(1) year from the date of casualty or loss in amounts which will cover
gross income, reduced to the extent such amounts would not be received
because of operating expenses not incurred during a period of
non-occupancy of that portion of the Property then not being occupied.
The amount of coverage shall be adjusted annually to reflect the
income during the succeeding twelve (12) month period.
(v) Boiler and Machinery Insurance. None now required, but if
Improvements are constructed on the Property, broad form boiler and
machinery insurance (without exclusion for explosion) covering all
boilers or other pressure vessels, machinery, and equipment located
in, on or about the Property and insurance against loss of occupancy
or use arising from any breakdown in such amount per accident equal to
the replacement value of the improvements housing the machinery or
$2,000,000 or such other amount reasonably determined by Mortgagee. If
one or more large HVAC units is in operation at the Property, "System
Breakdowns" coverage shall be required, as determined by Mortgagee.
Minimum liability coverage per accident must equal the value of such
unit(s).
(vi) Builders Risk. During the period of any construction,
renovation or alteration of any Improvements which exceeds the lesser
of 10% of the principal amount of the Note or $100,000.00, at
Mortgagee's request, a completed value, "All Risk" Builder's Risk
form, or "Course of Construction" insurance policy in non-reporting
form for any Improvements under construction, renovation or alteration
in an amount approved by Mortgagee shall be required. During the
period of any construction of any addition to the existing
Improvements, a completed value, "AU Risk" Builder's Risk form or
"Course of Construction" insurance policy in non-reporting form, in an
amount approved by Mortgagee, shall be required.
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(vii) Fidelity Bonds and Crime Coverage. None now required. If
Improvements are constructed on the Property and a business operated
therein, Blanket Crime coverage shall include employee dishonesty,
money and securities, counterfeiting, and depositor's forgery in
commercially reasonable amounts and deductibles given the nature and
extent of such business.
(viii) Other Insurance. Such other insurance with respect to the
Mortgaged Property or on any replacements or substitutions thereof or
additions thereto as may from time to time be reasonably required by
Mortgagee against other insurable hazards or casualties which at the
time are commonly insured against in the case of property similarly
situated, including, without limitation, sinkhole, mine subsidence and
earthquake insurance, due regard being given to the height and type of
buildings, their construction, location, use and occupancy; provided
that such coverages are available at commercially reasonable rates.
(b) All insurance provided for herein shall be obtained under valid
and enforceable policies (the "POLICIES" or in the singular, the "POLICY"),
and shall be issued by one or more domestic primary insurer(s) reasonably
acceptable to Mortgagee with Mortgagor's present insurer as evidenced by
the Certificate of Insurance delivered by Mortgagor to Mortgagee being
acceptable as to the liability insurance evidenced thereby (each such
insurer shall be referred to below as a "QUALIFIED INSURER"). All insurers
providing insurance required herein shall be authorized to issue insurance
in the state in which the Property is located. The Policy referred to
herein in subsection (ii) above shall name Mortgagee as an additional named
insured and the Policy referred to in subsection (i) above shall provide
that all proceeds be payable to Mortgagee pursuant to standard mortgagee
loss payee form as follows:
Canpartners Realty Holding Company IV LLC
c/o Canyon Capital Realty Advisors
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mr. K. Xxxxxx Xxxxxx and Mr. Xxxxxxxx Xxxx
(c) The Policies referred to herein shall also contain: (A) a standard
"noncontributory mortgagee" endorsement or its equivalent relating, inter
alia, to recovery by Mortgagee notwithstanding the negligent or willful
acts or omission of Mortgagee, and (B) to the extent available at
commercially reasonable rates, a waiver of subrogation endorsement as to
Mortgagee. All Policies described herein shall contain (x) a provision that
such Policies shall not be canceled or terminated, nor shall they expire,
without at least thirty (30) days' prior written notice to Mortgagee in
each instance, except in the event of termination for failure to pay
premiums in which event only fifteen (15) days' prior written notice shall
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be required; and (y) an effective waiver by the insurer of all claims for
Insurance Premiums (defined below) against any mortgagee, loss payees,
additional insureds and named insureds (other than Mortgagor). XXXXX Form
27 certificates of insurance with respect to all renewal and replacement
Policies shall be delivered to Mortgagee not less than thirty (30) days
prior to the expiration date of any of the Policies required to be
maintained hereunder, which certificates shall bear notations evidencing
payment of applicable premiums (the "INSURANCE PREMIUMS"). Certificates of
such replacement Policies shall be delivered to Mortgagee promptly after
Mortgagor's receipt thereof but in any case within thirty (30) days after
the effective date thereof. If Mortgagor fails to maintain and deliver to
Mortgagee the certificates of insurance required by the Mortgage, upon ten
(10) days' prior notice to Mortgagor, Mortgagee may procure such insurance
at Mortgagor's sole cost and expense.
(d) Mortgagor shall comply with all insurance requirements and shall
not bring or keep or permit to be brought or kept any article upon any of
the Property or cause or permit any condition to exist thereon which would
be prohibited by an insurance requirement, or would invalidate the
insurance coverage required hereunder to be maintained by Mortgagor on or
with respect to any part of the Property pursuant to this Section.
(e) If the Property shall be damaged or destroyed, in whole or in
part, by fire or other casualty, Mortgagor shall give prompt notice of such
damage to Mortgagee.
(f) The delivery to Mortgagee of the certificates of insurance as
provided above shall constitute an assignment of all proceeds payable under
such insurance as relating to the Property by Mortgagor to Mortgagee as
further security for the indebtedness secured hereby. In the event of
foreclosure of the Mortgage, or other transfer of title to the Property in
extinguishment in whole or in part of the secured indebtedness, all right,
title and interest of Mortgagor in and to all proceeds payable under such
policies then in force concerning the Property shall thereupon vest in the
purchaser at such foreclosure, or in Mortgagee or other transferee in the
event of such other transfer of title. Approval of any insurance by
Mortgagee shall not be a representation of the solvency of any insurer or
the sufficiency of any amount of insurance.
(g) Mortgagee shall not be responsible for nor incur any liability for
the insolvency of the insurer or other failure of the insurer to perform,
even though Mortgagee has caused the insurance to be placed with the
insurer after failure of Mortgagor to furnish such insurance. Mortgagor
shall not obtain insurance for the Property in addition to that required by
Mortgagee without the prior written consent of Mortgagee, which consent
will not be unreasonably withheld provided that (i) Mortgagee is named
insured on such insurance, (ii) Mortgagee receives complete copies of all
policies evidencing such insurance, and (iii) such insurance complies with
all of the applicable requirements set forth herein.
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(h) Mortgagor shall pay the premium for Mortgagee to obtain a Secured
Creditor's Impaired Property Environmental Insurance policy or similar
coverage designed to protect Mortgagee from loses attributable to
environmental contamination with respect to the Property upon default by
Mortgagor under the Loan Documents. Such policy shall be on a "loan balance
form" and shall have limits of liability in an amount no less than the
original principal balance plus all interest due under the terms of the
Note.
3.08 Casualty.
(a) Mortgagor shall promptly notify Mortgagee of any loss to the
Mortgaged Property or any portion thereof, whether covered by insurance or
not. The rest of this Section does not presently apply as there are no
Improvements on the Property, but should Improvements hereafter be
constructed thereon the following will apply. In case of loss or damage by
fire or other casualty, Mortgagee, or after foreclosure or Mortgagee's
Sale, the holder of the certificate or certificates of purchase, or grantee
under a Mortgagee's Deed, as the case may be, is authorized (i) to settle
and adjust any claim under insurance policies which insure against such
risks, or (ii) to allow Mortgagor to agree with the insurance company or
companies on the amount to be paid in regard to such loss. In either case,
Mortgagee is authorized to collect and receipt for any such insurance
money. If insurance proceeds are made payable to both Mortgagee and
Mortgagor, Mortgagor hereby authorizes Mortgagee, as Mortgagor's attorney,
to endorse checks, sight drafts, and other instruments on behalf of
Mortgagor.
(b) Mortgagee will release to Mortgagor any insurance proceeds
received by Mortgagee as a result of any loss to the Property as
restoration progresses solely in payment of restoration costs, but in the
event of such a release, the release of funds shall be subject to the
following conditions: (1) there shall be no outstanding Event of Default
hereunder, under the Note or under any other Loan Documents and no event
shall have occurred and be continuing which, but for the giving of notice
and passage of time, or both, would constitute such an Event of Default;
(2) Mortgagee shall approve the plans and specifications for any such
restoration in advance of commencement thereof; (3) there shall be
sufficient funds upon deposit at all times with Mortgagee to complete the
restoration, as certified by an architect approved by Mortgagee; (4) the
insurer shall not have asserted any defense against Mortgagor or any tenant
pursuant to the insurance policy covering the Improvements; (5) the
restoration is commenced within one hundred twenty (120) days after the
date of the loss and is capable of being completed prior to the Maturity
Date (as defined in the Note); (6) Mortgagor demonstrates to Mortgagee's
satisfaction that Mortgagor has the financial ability to continue to pay
the Indebtedness Secured Hereby during restoration; (7) the loss affects
less than twenty percent (20%) of the value of the Improvements, or such
larger amount as is approved by Mortgagee in its discretion; (8) there will
then be no defaults under any leases for the Property and said leases shall
continue in full force and effect notwithstanding said casualty and will
continue to remain in full force and effect after the restoration, and (9)
Mortgagor shall comply with such other conditions as would customarily be
required by a prudent local construction lender, or are otherwise
reasonable.
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(c) Mortgagee may apply any insurance proceeds remaining after
completion of restoration to the Indebtedness Secured Hereby, whether due
or not (or if the Indebtedness Secured Hereby has been paid in full, then
to any remaining outstanding Obligations whether due or not), or if the
conditions set forth in subsection (b) of this Section 3.08 are not met,
Mortgagee may apply all insurance proceeds to the Indebtedness Secured
Hereby, whether due or not (or if the Indebtedness Secured Hereby has been
paid in full, then to any remaining outstanding Obligations whether due or
not) in such order and in such manner as Mortgagee may determine. Any
interest accruing on insurance proceeds held by Mortgagee shall be credited
to Mortgagor and applied or disbursed by Mortgagee in the same fashion as
the insurance proceeds.
(d) In case of loss after foreclosure proceedings have been
instituted, the proceeds of any such insurance policy or policies, if not
applied as aforesaid (in Mortgagee's sole and absolute discretion) in
rebuilding or restoring the Improvements, shall be used to pay the amount
due Mortgagee and the balance, if any, shall be paid to the owner of the
equity of redemption if he shall then be entitled to the same. In case of a
judicial foreclosure of this Mortgage, the court in its decree may provide
that the mortgagee's clause attached to each of said insurance policies may
be canceled and that the decree creditor may cause a new loss clause to be
attached to each of such policies making the loss thereunder payable to
said decree creditor; and any such foreclosure decree may further provide
that in case of one or more redemptions under said decree, pursuant to the
statute in such case made and provided, then and in every such case, each
successive redemptioner may cause the preceding loss clause attached to
each insurance policy to be canceled and a new loss clause to be attached
thereto, making the loss thereunder payable to such redemptioner. In the
event of judicial foreclosure sale or Mortgagee's Sale, Mortgagee is hereby
authorized, without the consent of Mortgagor, to assign any and all
insurance policies to the purchaser at the sale, or to take such other
steps as Mortgagee may deem advisable, to cause the interest of such
purchaser to be protected by any of the said insurance policies.
3.09 Condemnation. Mortgagor, immediately upon obtaining knowledge of
the commencement of any proceeding for the condemnation of the Property and/or
Improvements or any portion thereof or interest therein, shall notify Mortgagee
of the pendency thereof. Mortgagor hereby assigns, transfers and sets over unto
Mortgagee all compensation, rights of action, the entire proceeds of any award
and any claim for damages for any of the Property or Improvements taken or
damaged under the power of eminent domain or by condemnation or by sale in lieu
thereof. Mortgagee may, at its option, commence, appear in and prosecute, in its
own name or in the name of Mortgagor, any action or proceeding, or make any
compromise or settlement, in connection with such condemnation, taking under the
power of eminent domain or sale in lieu thereof. After deducting therefrom all
20
of its expenses, including reasonable attorneys' and other professionals' fees,
Mortgagee may elect to apply the proceeds of the award upon or in reduction of
the Indebtedness Secured Hereby, whether due or not (or if the Indebtedness
Secured Hereby has been paid in full, then to any remaining outstanding
Obligations whether due or not), or hold said proceeds and make same available
for restoration or rebuilding of the Property or the Improvements. In the event
that Mortgagee elects to make said proceeds available to reimburse Mortgagor for
the cost of the rebuilding or restoration of the Property or the Improvements,
such proceeds shall be made available in the manner and under the same
conditions that Mortgagee may require in the manner provided under Section 3.08
above. If the proceeds are made available by Mortgagee to reimburse Mortgagor
for the cost of said rebuilding or restoration, any surplus which may remain out
of said award after payment of such cost of rebuilding or restoration shall at
the option of Mortgagee be applied on account of the Indebtedness Secured
Hereby, whether due or not, or, if the Indebtedness Secured Hereby has been paid
in full then to any remaining outstanding Obligations, whether due or not, or be
paid to Mortgagor. Mortgagor agrees to execute such further assignments of any
compensation, award, damages, right of action and proceeds, as Mortgagee may
require from time to time provided they are consistent with the foregoing
provisions.
3.10 Liens and Encumbrances. Except as expressly provided in this
Mortgage, Mortgagor shall not, without Mortgagee's express prior written
consent, permit the creation of any liens or encumbrances on the Mortgaged
Property other than the lien of this Mortgage, the lien created by the Senior
Loan B Split, Amended and Restated Mortgage (subject to the Intercreditor
Agreement) and any lien for real property taxes so long as they are not yet
delinquent, and shall pay when due all Impositions, obligations, lawful claims
or demands of any person which, if unpaid, might result in, or permit the
creation of, a lien or encumbrance on the Property or on the Rents, issues,
income and profits arising therefrom, whether such lien would be senior or
subordinate hereto, including, but without limiting the generality of the
foregoing, all claims of mechanics, professionals, materialmen, laborers, and
others for work, services or labor performed, or materials or supplies furnished
in connection with any work of demolition, alteration, improvement of or
construction upon the Property. Mortgagor will do or cause to be done everything
necessary so that the priority of the lien of this Mortgage shall be fully
preserved, at the cost of Mortgagor, without expense to Mortgagee. Except as to
Senior Loan B Split, Amended and Restated Mortgage, any lien or encumbrance on
the Mortgaged Property created hereafter shall contain, or shall by virtue
hereof be deemed to contain, a provision subordinating such lien or encumbrance
to all leases then or in the future affecting the Mortgaged Property but nothing
in this sentence shall be deemed to be a consent by Mortgagee to any lien or
encumbrance.
3.11 Impositions. Mortgagor shall pay in full when due, and in any
event before any penalty or interest attaches, all Impositions (except those
that may be paid by Borrower, in its sole discretion, from any Tax and Insurance
Reserve) and shall furnish to Mortgagee upon the written request of Mortgagee
official receipts evidencing the payment of real estate taxes and assessments.
To prevent default hereunder, Mortgagor shall pay in full under protest, in the
manner provided by statute, any Imposition, tax or assessment which Mortgagor
may desire to contest.
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3.12 Indemnification; Attorneys' Fees. Mortgagor shall appear in and
defend any suit, hearing, action or proceeding that might in any way and in the
sole judgment of Mortgagee affect the value of the Mortgaged Property, the
priority of this Mortgage or the rights and powers of Mortgagee under this
Mortgage. Mortgagor shall, at all times, indemnify, defend, hold harmless and on
demand, reimburse Mortgagee for any and all loss, damage, liability, expense or
cost, including cost of evidence of title and attorneys' fees, arising out of or
incurred in connection with any such suit, hearing, action or proceeding, and
the sum of such expenditures shall be secured by this Mortgage and shall bear
interest at the rate or rates provided in the Note and shall be due and payable
on demand. Mortgagor shall pay the cost of suit, cost of evidence of title and
reasonable attorneys' and other professionals' fees in any proceeding, suit, and
foreclosure proceedings through the court or through Mortgagee's sale brought by
the Mortgagee to foreclose this Mortgage.
3.13 Transfer of Title or Further Encumbrances.
(a) In order to induce Mortgagee to make the loan evidenced by the
Note, Mortgagor agrees that if title to the Property or the Improvements or
any part thereof or interest therein is sold or if the Property or the
Improvements or any portion thereof are leased (except for a Lease of
portions of the Property or the Improvements in the ordinary course of
operating Mortgagor's Business), or if the Property or the Improvements or
any portion thereof is assigned, transferred, conveyed, further mortgaged,
encumbered, or otherwise changed (including any such changes as security
for additional financing), whether voluntarily or involuntarily or by
operation of law, without the prior written consent of Mortgagee, which
consent may be given or withheld in Mortgagee's sole and absolute
discretion, Mortgagee, at its option, may declare the Indebtedness Secured
Hereby and all Obligations hereunder to be forthwith due, payable and
performable. Without in any way limiting Mortgagee's rights of approval set
forth above, Mortgagee may condition its consent, among other things, upon
any one or more of: (1) approval of the financial condition and credit
worthiness of the proposed transferee; (2) making such modifications to the
Note, this Mortgage and other Loan Documents as Mortgagee may deem
appropriate; (3) payment of a transfer fee not to exceed two percent (2%)
of the then outstanding principal balance of the Note (or such lower fee as
may be then required by law, if applicable); and (4) an increase in the
interest rate under the Note, (but not in excess of the maximum rate
increase then permitted by law, if applicable). If the interest rate is
increased, any monthly installment payment under the Note shall be
increased accordingly. In the event of any transfer under this section
3.13, either Mortgagor or the new owner shall pay all fees and expenses
incurred thereby, including any costs of amending the Note, this Mortgage
any of the other Loan Documents, and of obtaining appropriate title
insurance insuring and assuring the continued priority of the lien of this
Mortgage. In addition, Mortgagee may charge an administrative fee for
processing any application seeking the consent of Mortgagee.
22
(b) Any change in the legal or equitable title of the Property or the
Improvements or in the beneficial ownership of the Property or the
Improvements not expressly permitted herein, whether or not of record and
whether or not for consideration shall be deemed a transfer of title to the
Property or Improvements.
(c) Except as otherwise expressly permitted herein, in the event
ownership of the Property or the Improvements, or any part thereof, becomes
vested in any person or entity other than Mortgagor, without the prior
written approval of Mortgagee, Mortgagee may, without notice to Mortgagor,
waive such default and deal with such successor or successors in interest
with reference to this Mortgage, the Note and the other Loan Documents in
the same manner as with Mortgagor, without prior approval or consent of
Mortgagor and without in any way releasing, discharging or otherwise
affecting the liability of Mortgagor hereunder for the Indebtedness Secured
Hereby, or for payment or performance of any of the Obligations. No sale,
transfer or conveyance of the Property or the Improvements, no forbearance
on the part of Mortgagee, no extension of the time for the payment of the
Indebtedness Secured Hereby or the performance or payment of the
Obligations or any change in the terms thereof consented to by Mortgagee
shall in any way whatsoever operate to release, discharge, modify, change
or affect the original liability of Mortgagor herein, either in whole or in
part, nor shall the full force and effect of this lien be altered thereby.
Any deed conveying the Property, or the Improvements or any part thereof,
shall provide that the grantee thereunder assumes all of the Mortgagor's
obligations under this Mortgage and the other Loan Documents to which
Mortgagor is a party but nothing herein shall be deemed to be a consent to
any transfer. In the event such deed shall not contain such assumption, the
grantee under such deed shall nevertheless be deemed to have assumed such
obligations by acquiring the Property, the Improvements or such portion
thereof subject to this Mortgage.
(d) Mortgagor shall not voluntarily, involuntarily or by operation of
law, sell, assign, transfer or otherwise dispose of the Collateral or any
interest therein and shall not otherwise do or permit anything to be done
or occur that may impair the Collateral as security hereunder except so
long as no Event of Default has occurred and is continuing hereunder or
under the Note or under any other Loan Documents: (1) Mortgagor shall be
permitted to sell or otherwise dispose of the Collateral when absolutely
worn out, inadequate, unserviceable or unnecessary for use in the operation
of the Property or in the conduct of the Mortgagor's Business upon the
Mortgaged Property replacing the same or substituting for the same other
collateral at least equal in value, utility and quality to the initial
value, utility and quality of that disposed of and in such a manner so that
such replacement property shall be subject to the security interest created
hereby and without changing the priority of Mortgagee's security interest
therein; and (2) Mortgagor may sell items of inventory and goods in the
23
ordinary course of Mortgagor's Business. In the event the Collateral is
sold in connection with the sale of the Property, Mortgagor shall require,
as a condition of the sale, that the buyer specifically agree to assume
Mortgagor's obligations as to the security interest herein granted under
this Mortgage and other Loan Documents to which Mortgagor is a party and to
execute whatever agreements and filings deemed necessary by Mortgagee to
maintain its perfected security interest in the Collateral but nothing
herein shall be deemed to be a consent to any sale or transfer.
3.14 Advances. If Mortgagor shall fail to perform any of the
covenants herein contained or contained in any other Loan Documents to which
Mortgagor is a party, Mortgagee may, after any applicable grace or notice
period, but without obligation to do so, make advances to perform same in
Mortgagor's or on its behalf, and all sums so advanced shall be a lien upon the
Mortgaged Property and shall be secured by this Mortgage. Mortgagor shall repay
on demand all sums so advanced in its or Mortgagee's behalf with interest
thereon at the Default Rate of interest under the Note from the time of such
advance. Nothing herein contained shall prevent any such failure to perform on
the part of Mortgagor from constituting an Event of Default as defined below or
under any other Loan Document to which Mortgagor is a party.
3.15 Intentionally Omitted.
3.16 Time. Mortgagor agrees that time is of the essence hereof in
connection with all obligations of Mortgagor herein or in any other Loan
Document to which Mortgagor is a party.
3.17 Estoppel Certificates. Mortgagor, within ten days after written
request from Mortgagee, shall furnish to Mortgagee a duly acknowledged and
certified written statement setting forth the amount secured by this Mortgage,
stating either that no setoffs or defenses exist against this Mortgage or the
Indebtedness Secured Hereby or the Obligations or, if such setoffs or defenses
are alleged to exist, the nature and description thereof and stating such other
matters concerning this Mortgage, the other Loan Documents to which Mortgagor is
a party, the Mortgaged Property and/or Mortgagor, as Mortgagee may request.
3.18 Senior Mortgage. The lien of this Mortgage shall be junior and
subordinate to Senior Loan B Split, Amended and Restated Mortgage, subject to
the terms of the Intercreditor Agreement. Further, the Mortgagor does hereby
state to and agree with the Mortgagee as follows:
(a) As of the date hereof, the principal amount outstanding on the
Senior Loan B Split, Amended and Restated Mortgage does not exceed
$12,800,000.00 and Senior Loan B Split, Amended and Restated Mortgage does
not now secure nor will it secure any future advances (other than taxes,
insurance, collection expenses and other sums provided by Senior Loan B
Lender in order to protect the collateral securing the Senior Loan B and as
set forth in the Intercreditor Agreement) and is scheduled to be paid off
in full by September 1, 2004.
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(b) The Mortgagor will not permit any modification of the Senior Loan
B Documents nor will the Mortgagor permit any extension of the September 1,
2004 maturity date, except as expressly provided in the Intercreditor
Agreement.
(c) A default under any of the Senior Loan Documents is and will be a
default under this Mortgage.
To the extent any of the foregoing are not true or not performed or in the
event of a default under the Senior Loan Documents, in addition to the
other remedies afforded to Mortgagee hereunder, the Mortgagee specifically
reserves the right to cure such default and/or pay off the Senior Loan
and/or satisfy either the Senior Mortgage and any or all other Senior Loan
Documents and/or to make any installment payment(s) due under the Senior
Loan Documents and/or take any other action or pay any other sum due under
said Senior Loan Documents as Mortgagee, in its sole and absolute
discretion, deems necessary, with said payment deemed a future advance
being made under Section 7.15 of and secured by this Mortgage. Any such
advance by the Mortgagee will be immediately repaid by the Mortgagor
hereunder together with interest at the default rate as set forth in the
Loan Documents.
3.19 Intentionally Omitted.
3.20 Environmental Compliance.
(a) As used herein, the following terms shall have the following
meanings:
(i) "Hazardous materials" means any asbestos, PCB'S,
formaldehyde, carcinogens, hydrocarbons or other petroleum products or
by-products, harmful or toxic chemicals, pollutants, contaminants,
flammable explosives, asbestos containing materials, radioactive or
radon containing materials, or other gases, substances, chemicals,
materials defined under federal, state or local laws and regulations
(whether now existing or hereafter enacted, formulated or imposed) as
"hazardous substances," "hazardous materials," "hazardous waste,"
"toxic substances," "pollutants" or "contaminants."
(ii) "Applicable environmental law(s)" means all statutes, laws,
ordinances, acts, rules, regulations, decrees, and rulings of all
Governmental Authorities which relate or pertain to health, safety,
the environment or hazardous materials, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability
25
Act of 1980, 42 U.S.C.A. sec. 9601 et seq. ("CERCLA"); the Resource
Conservation and Recovery Act of 1976, 42 U.S.C.A. sec. 6901 et seq.;
the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.A. sec.
6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A.
sec. 1801 et seq.; the Toxic Substances Control Act, 15 U.S.C.A. sec.
2601 et seq.; the Clean Air Act, 42 U.S.C.A. sec. 7401 et seq.; the
Clean Water Act, 33 U.S.C.A. sec. 1251 et seq.; and all similar or
related laws of the State of Florida and all environmental regulation,
cleaning or control laws of the State of Florida, all as amended from
time to time.
(iii) "Disposal," "release," "threatened release," "use,"
"storage," "disposition," and "manufacture" shall have the definitions
assigned thereto by CERCLA or other applicable environmental laws.
(b) Mortgagor hereby represents and warrants to Mortgagee that subject
to all matters disclosed in any Environmental Assessment Audit or
Environmental Reports delivered by Mortgagor to Mortgagee: (i) to the best
of Mortgagor's knowledge, the Mortgaged Property does not contain or
incorporate and is not threatened with contamination from hazardous
materials; (ii) to the best of Mortgagor's knowledge, the Mortgaged
Property has never been used in connection with the handling, generation,
storage, disposal, manufacture or release of hazardous materials; (iii) to
the best of Mortgagor's knowledge, there have been no releases and there
are no threatened releases of hazardous materials on, onto, from, or under
the Mortgaged Property; (iv) all current, and to the best of Mortgagor's
knowledge all past uses of the Mortgaged Property comply with all
applicable environmental laws; (v) Mortgagor has never received notice of,
and has no knowledge of a violation of any applicable environmental law
with respect to the Mortgaged Property, and subject to all matters
disclosed in the Environmental Reports, to the best of Mortgagor's
knowledge, no action has been commenced or threatened for non-compliance
with any such laws with respect to the Mortgaged Property; (vi) Mortgagor
has not obtained and to the best of Mortgagor's knowledge, is not required
by any applicable environmental law to obtain any permit or license to own
or use the Mortgaged Property; (vii) the Mortgaged Property does not
contain and, to the best of Mortgagor's knowledge, has never contained an
underground storage tank (including without limitation, a tank for which a
permit to operate was obtained under the Underground Storage of Hazardous
Substances Act or other applicable environmental law); (viii) to the best
of the Mortgagor's knowledge, no event has occurred which requires or
required the owner of the Mortgaged Property to give any Governmental
Authority notice of any spill, release, threatened release, disposal,
disposition or existence of hazardous materials on, around, under or from
the Mortgaged Property; and (ix) to the best of Mortgagor's knowledge,
there has been no litigation brought or threatened against Mortgagor or to
Mortgagor's knowledge, any prior owner of the Mortgaged Property, nor have
26
any settlements been reached by or with Mortgagor or to Mortgagor's
knowledge any other party alleging the presence, generation, disposal,
disposition, release, or threatened release of any hazardous material on,
onto, from, or under the Mortgaged Property. Reference to "BEST OF
MORTGAGOR'S KNOWLEDGE" or to the Environmental Reports, shall not in any
way whatsoever relieve the Mortgagor from any of its remaining obligations
under this Section.
(c) Mortgagor shall not use or permit the use (by lease or otherwise)
of the Mortgaged Property for the generation, manufacture, release,
transportation, treatment, handling, storage, or disposal of hazardous
materials.
(d) Mortgagor shall keep and maintain the Mortgaged Property and shall
endeavor to require all tenants, occupants, licensees and users of any
portion of the Mortgaged Property to keep and maintain the Mortgaged
Property in compliance with all applicable environmental laws.
(e) Mortgagor shall clean up and lawfully dispose of all hazardous
materials on, under or from the Mortgaged Property promptly upon discovery
thereof and in the manner as required by applicable environmental laws.
(f) Mortgagor shall provide Mortgagee with immediate written notice:
(i) of Mortgagor's obtaining knowledge of any potential or known release,
spill or threatened release of hazardous materials on, onto, from or under
the Mortgaged Property, whether from a federal, state or other Governmental
Authority, or otherwise; or (ii) of all claims made or threatened by any
third party relating to any loss or injury from hazardous materials in, on,
from, or under the Mortgaged Property.
(g) Mortgagor shall promptly deliver to Mortgagee copies of any
documents relating to any governmental proceedings relating to hazardous
materials affecting the Mortgaged Property and all engineering reports,
test reports and laboratory analyses concerning the hazardous materials
affecting the Mortgaged Property.
(h) If any Governmental Authority requires the investigation of the
Mortgaged Property and/or groundwater for the existence of hazardous
materials, or Mortgagee reasonably suspects or believes that there exists
the threat of or there has been hazardous materials contamination of the
Mortgaged Property and/or groundwater, Mortgagor, at its expense, shall
promptly and thoroughly investigate the Mortgaged Property and/or
groundwater for hazardous materials contamination. The professionals
retained by Mortgagor and the scope of any such investigation shall be
subject to Mortgagee's reasonable approval. In the event Mortgagor fails to
complete an investigation for hazardous materials when required by this
Section, or if an Event of Default hereunder or under any other Loan
Documents (or an event which but for the passage of time or giving of
notice would constitute a default or an "EVENT OF DEFAULT") occurs,
Mortgagee may, in its sole and absolute discretion, enter the Mortgaged
27
Property and conduct the investigation at the expense of Mortgagor, after
giving not less than five days written notice to Mortgagor. Such
investigation may include (i) obtaining one or more environmental
assessments of the Mortgaged Property prepared by a geohydrologist, an
independent engineer or other qualified consultant or expert evaluating or
confirming whether any hazardous materials are present in, on, under or
adjacent to the Mortgaged Property and (ii) whether the use and operation
of the Mortgaged Property comply with applicable environmental laws.
Environmental assessments may include detailed visual inspections of the
Mortgaged Property including, without limitation, any and all storage
areas, storage tanks, drains, dry xxxxx and leaching areas, and the taking
of soil samples, surface water samples and groundwater samples, as well as
such other investigations, tests or analysis as are necessary or
appropriate for a complete determination of the compliance of the Mortgaged
Property and the use and operation thereof with all applicable
environmental laws.
(i) In the event of any change in the laws governing the assessment,
existence, release or removal of hazardous materials, such as but not
limited to, the identification of a new hazardous substance to be included
in the definition of hazardous materials, which change would lead a prudent
lender to require additional testing to avail itself of any statutory
insurance or limited liability, Mortgagor shall take all such action
(including, without limitation, the conducting of engineering tests at the
sole expense of Mortgagor) to confirm that no hazardous materials are
present on the Mortgaged Property.
3.21 Property Manager. The Mortgaged Property shall be managed by
Mortgagor.
3.22 Payment of Junior Encumbrances. Mortgagor shall not permit any
default or delinquency under any other lien, Imposition, charge or encumbrance
against the Mortgaged Property, even though junior and inferior to the lien of
this Mortgage; provided, however, the foregoing shall not be construed to permit
or to be Mortgagee's consent to any other liens or encumbrances against the
Mortgaged Property, except as specifically permitted in this Mortgage.
3.23 Alteration, Removal and Change in Use of Property Prohibited.
Mortgagor agrees not to permit or suffer any of the following without the prior
written consent of Mortgagee, which consent shall not be unreasonably withheld:
(a) Any structural alteration of, or addition to, the Property or any
Improvements as now or hereafter situated upon the Property or the addition
of any new Improvements thereto; or
(b) The use of any of the Mortgaged Property other than for the
operation of Mortgagor's Business; or
(c) Any change in the present zoning classification of the Property.
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3.24 Conveyance of Mineral Rights Prohibited. Mortgagor agrees that
the making of any oil, gas or mineral lease or the sale or conveyance 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; and that Mortgagor 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 Mortgagee express written permission therefor (which permission
may be given or withheld in Mortgagee's sole and absolute discretion), which
permission shall not be valid until recorded among the real property records of
the County in which the Property is situated. Mortgagor further agrees that if
Mortgagor shall make, execute, or enter into any such lease or attempt to grant
any such mineral rights without the prior written consent of Mortgagee, then
Mortgagee shall have the option, without notice, to declare the same to be a
default hereunder and to declare the Indebtedness Secured Hereby and all
Obligations immediately due and payable. Whether Mortgagee shall consent to such
lease or grant of mineral rights, Mortgagee 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 Secured Hereby, the Obligations or either
of them, in such manner as Mortgagee may designate, notwithstanding the fact
that the amount owing thereon may not then be due and payable or the said
amounts are otherwise adequately secured; provided, however, that the acceptance
of such consideration shall in no way impair the lien of this Mortgage on the
Mortgaged Property.
3.25 Intentionally omitted.
3.26 Intentionally omitted.
3.27 Intentionally omitted.
3.28 Intentionally omitted.
3.29 Intentionally omitted.
3.30 Compliance. Any Improvements shall be erected wholly within the
building setback lines applicable to the Property, will not violate any
applicable public or private restrictions and will not encroach upon or overhang
any easements, rights of way, or land of others.
3.31 Intentionally omitted.
3.32 Intentionally omitted.
3.33 Mechanic's Liens. The Mortgagor shall pay or discharge (or bond
in a manner acceptable to Mortgagee) any mechanic's liens or other encumbrances
which may be filed or recorded against the Property or any Improvements within
thirty (30) days after it receives notice thereof, from the Mortgagee or
otherwise. In the event that Mortgagor shall fail to pay or discharge (or bond
29
in a manner acceptable to Mortgagee) any such mechanic's lien or other
encumbrance, the Mortgagee, in addition to such other rights as may be available
to it, may pay and discharge such mechanic's lien or other encumbrance or
deposit in escrow an amount sufficient to do so, and the amount so paid or
deposited shall be treated as an advance of the Loan from the Mortgagee to the
Mortgagor, provided however, that in the event Mortgagor is contesting in good
faith any mechanic's lien filed, and Mortgagee receives such title insurance
endorsement and other assurance as Mortgagee reasonably requires (which may
include Mortgagor's depositing the amount of such claim with Mortgagee, or
bonding in a manner acceptable to Mortgagee), Mortgagee shall not pay and
discharge such claim so long as (i) Mortgagor has not suffered an event of
default, and (ii) there are no execution proceedings by the holder of such
mechanic's lien which have not been stayed pending Mortgagor's contest.
ARTICLE IV
SECURITY AGREEMENT AND FINANCING STATEMENT
UNDER UNIFORM COMMERCIAL CODE
-----------------------------
4.01 Security Agreement and Financing Statement. To the extent any
Collateral covered by this Mortgage consists of rights in action or personal
property covered by the Uniform Commercial Code - Secured Transactions, this
Mortgage constitutes a security agreement and financing statement as defined
thereunder and Mortgagor hereby grants to Mortgagee a security interest in any
Collateral.
THIS MORTGAGE SHALL BE EFFECTIVE AS A FINANCING STATEMENT FILED AS A
FIXTURE FILING WITH RESPECT TO ALL GOODS CONSTITUTING A PART OF THE COLLATERAL
WHICH ARE OR ARE TO BECOME FIXTURES RELATED TO THE PROPERTY. FOR PURPOSES OF THE
UCC THE FOLLOWING INFORMATION IS FURNISHED:
(a) The name and address of the record fee owner of the real estate
described in this instrument is the Mortgagor, whose full name and address
are set forth in the second full paragraph on page one of this Mortgage and
are incorporated herein by this reference;
(b) The name and address of the Debtor is the Mortgagor, whose full
name and address are set forth in the second full paragraph on page one of
this Mortgage and are incorporated herein by this reference;
(c) The name and address of the Secured Party is the Mortgagee, whose
full name and address are set forth in the second full paragraph on page
one of this Mortgage and are incorporated herein by this reference.
30
(d) Information concerning the security interest evidenced by this
instrument may be obtained from the Secured Party at its address above; and
(e) This document also covers goods that are or are to become
Fixtures.
This Mortgage shall be self-operative with respect to any Collateral
covered by this Mortgage which consists of rights in action or personal property
covered by the Uniform Commercial Code - Secured Transactions, but Mortgagor
agrees to execute and deliver on demand such security agreements, financing
statements or other instruments as Mortgagee may request to impose the lien
hereof more specifically upon any of such property and to pay the recording
and/or filing fees associated therewith.
4.02 Purchase Money Security Interests, Leases.
(a) If the lien of this Mortgage on any such property is now, or shall
hereafter be, subject to a prior security interest covering such property,
by reason of a purchase money security interest or otherwise, then in an
Event of Default hereunder, all the right, title and interest of Mortgagor
in and to any and all deposits thereon is hereby assigned to Mortgagee,
together with the benefit of any payments now or hereafter made thereon but
nothing herein shall be deemed to be a consent to any prior security
interest.
(b) Except with respect to leases which have been approved by
Mortgagee on or before the date of this Mortgage, in the event Mortgagor
owns or acquires only a lessee's interest in any Personalty or Fixtures or
materially modifies any leases which were previously approved by Mortgagee,
then, in addition to the foregoing requirements, before any of such
property is placed in, on or about the Property:
(i) The written approval of Mortgagee to the leasing agreements
under which Mortgagor owns or acquires such lessee's interest shall
first be obtained, provided that no such approval shall be required
for any such lease which (i) has an economic value of less than
$50,000, (ii) is commercially reasonable, (iii) is entered into by
Mortgagor in the ordinary course of business, and (iv) is not with an
Affiliate of Mortgagor; and
(ii) All consents of the lessor under any such leasing agreements
to such security interest of Mortgagee, and all agreements of such
lessor in favor of Mortgagee deemed necessary by Mortgagee, shall
first be obtained to the satisfaction of Mortgagee.
(c) It is understood and agreed that, in order to protect Mortgagee
from the effect of Section 679.313 Florida Statutes, as amended from time
to time, in the event that Mortgagor intends to purchase any goods which
may become Fixtures attached to the Property or the Improvements, or any
part thereof, and such goods will be subject to a purchase money security
interest held by a seller or any other Person:
31
(i) Mortgagor shall, before executing any security agreement or
other document evidencing such security interest, obtain the prior
written approval of Mortgagee (such approval shall not to be
unreasonably withheld, or delayed and provided that no such approval
shall be required for any such security agreement or other document
evidencing such security interest in connection with a lease which (i)
has an economic value of less than $50,000, (ii) is commercially
reasonable, (iii) is entered into by Mortgagor in the ordinary course
of business, and (iv) is not with an Affiliate of Mortgagor), and all
requests for such written approval shall be in writing and contain the
following information:
A) a description of the property to be replaced, added to,
installed or substituted; and
B) the name and address of the proposed holder and proposed
amount of the security interest.
Mortgagor's execution of any such security agreement or other document
evidencing such security interest without Mortgagee's prior written
approval shall constitute an Event of Default hereunder and an Event
of Default under the Note and other Loan Documents. No consent by
Mortgagee pursuant to this subsection shall be deemed to constitute an
agreement to subordinate any right of Mortgagee in Fixtures or other
property covered by this Mortgage;
(ii) If at any time Mortgagor fails to make any payment on an
obligation secured by a purchase money security interest in any
Personalty or any Fixtures, Mortgagee, at its option, may at any time
pay the amount secured by such security interest. Any money paid by
Mortgagee under this subsection, including any expenses, costs,
charges and attorneys' fees incurred by Mortgagee shall be reimbursed
to Mortgagee upon demand, shall be secured by this Mortgage and shall
bear interest at the Default Rate (as defined under the Note) from the
date advanced until paid. Mortgagee shall be subrogated to the rights
of the holder of any such purchase money security interest in such
Personalty or Fixtures.
(iii) Mortgagee shall have the right to acquire by assignment
from the holder of such security interest any and all contract rights,
accounts receivable, negotiable or non-negotiable instruments, or
other evidence of Mortgagor's indebtedness for such Personalty or
Fixtures, and, upon acquiring such interest as assignee thereof, to
enforce same in accordance with the terms and provisions of the UCC
and in accordance with any other provisions of law.
32
(iv) Whether or not Mortgagee has paid the Indebtedness Secured
Hereby or taken an assignment of such security interest, Mortgagor
covenants to pay all sums and perform all obligations secured thereby,
and if Mortgagor at any time shall be in default under such security
agreement, it shall constitute an Event of Default under this
Mortgage.
(v) the provisions of sub-subsections (i), (ii), (iii), and (iv)
above shall not apply if the goods which may become Fixtures are of at
least equivalent value and quality as any property being replaced and
if the rights of the party holding such security interest have been
expressly subordinated, at no cost to Mortgagee, to the lien and
security interest of this Mortgage in a manner satisfactory to
Mortgagee.
4.03 General. Mortgagor agrees that all property of every nature and
description, whether real or personal, covered by this Mortgage, together with
all personal property in which Mortgagee has a security interest by reason of a
separate agreement or instrument, are encumbered as one unit, and that, upon the
occurrence of any Event of Default under this Mortgage or under the Note or
other Loan Documents, Mortgagee may, at Mortgagee's option, pursuant to Section
679.501, et seq., Florida Statutes, foreclose and sell all such property in the
same proceeding, and all such property may, at Mortgagee's option, be sold as
such in one unit as a going business. The filing or recording of any financing
statement relating to the Fixtures, the Personalty or any other rights or
interests generally or specifically described herein shall not be construed to
diminish or alter any of Mortgagee's rights or priorities hereunder.
Mortgagor and Mortgagee agree that nothing herein contained shall be
construed as in any way derogating from or impairing the hereby stated intention
of the parties that to the maximum extent permitted by law, everything used in
connection with the production of income from the Mortgaged Property and/or
adapted for the use therein and/or which is described or reflected in this
Mortgage is, and at all times and for all purposes and in all proceedings, both
legal or equitable, shall be regarded as, part of the real estate irrespective
of whether (a) any such item is physically attached to the Improvements, (b)
serial numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained therein or in any list
filed with the Mortgagee, or (c) any such item is referred to or reflected in
any financing statement filed at any time. Similarly, the mention in any
financing statement of (i) the rights in or the proceeds of any fire and/or
hazard insurance policy, or (ii) any award in eminent domain proceedings for a
taking or for loss of value, or (iii) the Mortgagor's interest as lessor in any
present or future Lease or rights to income growing out of the use and/or
occupancy of the Property, whether pursuant to a Lease or otherwise shall never
be construed as in any wise altering any of the rights of Mortgagee as
determined by this instrument or impugning the priority of Mortgagee's lien
granted hereby or by any other recorded document, but such mention in said
financing statement is declared to be for the protection of Mortgagee in the
event any court or judge shall at any time hold with respect to (a), (b) and (c)
above that notice of Mortgagee's priority of interest, in order to be effective
against a particular class of person, including, but not limited to, the Federal
Government, must be filed in the UCC Records. For purposes of treating this
Mortgage as a security agreement and financing statement, Mortgagee shall be
deemed to be the Secured Party and Mortgagor shall be deemed to be the Debtor.
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ARTICLE V
LEASES AND RENTS
5.01 Mortgagor to Comply with Leases. Mortgagor will, at its own cost
and expense:
(a) Faithfully abide by, perform and discharge each and every
obligation, covenant and agreement under any Leases;
(b) Enforce or secure the performance of each and every obligation,
covenant, condition and agreement of each Lease by the tenants thereunder
to be performed;
(c) Not borrow against, pledge or further assign any Rents due under
any Leases;
(d) Not permit the prepayment of any Rents due under any Lease for
more than thirty (30) days in advance nor anticipate, discount, compromise,
forgive or waive any such Rents;
(e) Not waive, excuse, condone or in any manner release or discharge
any tenants of or from the obligations, covenants, conditions and
agreements by said tenants to be performed under the Leases;
(f) Not materially modify, alter or waive any Lease or any part or
provision thereof, or terminate or cancel any Lease, or any part or
provision thereof, except as approved in advance and in writing from time
to time by Mortgagee;
(g) Promptly provide to Mortgagee executed copies of any Leases (and
any guaranties or other credit enhancements with respect thereto), and
amendments, renewals or modifications to Leases (and any guaranties or
other credit enhancements with respect thereto) entered into by Mortgagor
from and after the date of this Mortgage;
(h) Submit to Mortgagee for Mortgagee's prior written approval any
standard lease forms that Mortgagor uses or intends to use in connection
with the Property; and
(i) Not enter into any Lease unless such Lease is satisfactory to
Mortgagee prior to execution.
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5.02 Mortgagee's Right to Perform under Leases. Should Mortgagor fail
to perform, comply with or discharge any obligations of Mortgagor under any
Lease or should Mortgagee become aware of or be notified by any tenant under any
Lease of a failure on the part of Mortgagor to so perform, comply with or
discharge its obligations under said Lease, Mortgagee may, but shall not be
obligated to, and without further demand upon Mortgagor, and without waiving or
releasing Mortgagor from any obligation contained in this Mortgage, remedy such
failure, and Mortgagor agrees to repay upon demand all sums incurred by
Mortgagee in remedying any such failure together with interest at the Default
Rate (as defined under the Note). All such sums, together with interest as
aforesaid shall become additional Indebtedness Secured Hereby, but no such
advance shall be deemed to relieve the Mortgagor from any default hereunder.
5.03 Absolute Assignment of Rents. Mortgagor does hereby absolutely
and unconditionally assign and transfer unto Mortgagee all of its right, title
and interest in and to all existing and future Leases and all of the Rents now
due and which may hereafter become due, it being the intention of this Mortgage
to establish an absolute transfer and assignment of all such right, title and
interest under the Leases and all of the Rents unto the Mortgagee, subject to
the prior assignment to Senior Lender. The foregoing assignment shall extend to
and cover any and all extensions and renewals of existing and future Leases and
to any and all present and future rights against any guarantors of any such
obligations. Notwithstanding the foregoing assignment, Mortgagee shall not be
obligated to perform or discharge any obligation, duty or liability under any of
the Leases, or under or by reason of the foregoing assignment, and Mortgagor
shall and does hereby agree to indemnify, defend and to hold Mortgagee harmless
for, from and against any liability, loss or damage which it might incur under
any Lease or under or by reason of the foregoing assignment and from any claims
and demands whatsoever which may be asserted against it by reason of any alleged
obligation or undertaking on Mortgagee's part to perform or discharge any of the
terms, covenants or agreements contained in the Leases; provided, however, that
Mortgagor shall not be obligated to indemnify and hold harmless Mortgagee from
any demands or claims caused solely by the gross negligence or willful
misconduct of Mortgagee. In pursuance of the foregoing assignment, and not in
lieu thereof, Mortgagor shall, on demand, give Mortgagee separate specific
assignments of Rents and Leases covering some or all of the Leases, the terms of
such assignments being incorporated herein by reference. Mortgagor does hereby
irrevocably appoint Mortgagee its true and lawful attorney in its name and
stead, which appointment is coupled with an interest, to collect all Rents;
provided, Mortgagee grants Mortgagor the revocable license and privilege to
collect the Rents unless and until an Event of Default occurs or exists under
this Mortgage or under the Note or any other Loan Document. During any period
that Mortgagor's license to collect the Rents is no longer in effect, Mortgagor
shall hold all Rents collected by it in trust for the benefit of Mortgagee and
shall use them in the following order of priority:
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(a) To payment of all attorney's fees and professional fees incurred
by Mortgagee and to the reasonable fees of the independent contractor or
receiver, if any, selected by Mortgagee or approved by a court;
(b) To pay any real or personal property taxes on the Mortgaged
Property that are not paid from Reserves;
(c) To pay the premiums for insurance required to be maintained by
Mortgagor pursuant to the provisions of this Mortgage to the extent not
paid from Reserves;
(d) To pay the costs of maintaining the Mortgaged Property in the
condition required under Section 3.05 of this Mortgage;
(e) To pay the principal of (including prepayment premiums and late
charges, if any) and interest on the Indebtedness Secured Hereby and any
other sums then due and owing under the Note, this Mortgage or any of the
other Loan Documents; and
(f) To pay the costs of performing or discharging any of Mortgagor's
other obligations under this Mortgage.
Provided that no Event of Default then exists under the Note, this Mortgage or
any of the other Loan Documents (and no event has occurred that, with the giving
of notice or the passage of time would constitute such an Event of Default)
after application of the Rents as provided in (a) through (f) above, Mortgagor
may retain any remaining Rents for its account, subject to the Operating Account
Agreement and the other Loan Documents. Upon an Event of Default under this
Mortgage or under the Note or any other Loan Documents, and whether before or
after the institution of proceedings to sell the Mortgaged Property or foreclose
this Mortgage or during any period of redemption or reinstatement and without
regard to waste, adequacy of the security or solvency of the Mortgagor,
Mortgagee may revoke the revocable license and privilege granted Mortgagor
hereunder to collect the Rents, and may, at its option, without notice in person
or by agent, with or without taking possession of or entering the Property, with
or without bringing any action or proceeding or by a receiver duly appointed,
give, or require Mortgagor to give, notice to any or all tenants under any Lease
authorizing and directing the tenant to pay such Rents to Mortgagee, such agent,
or receiver as the case may be; collect all of the Rents; enforce the payment
thereof and exercise all of the rights of the landlord under any Lease and all
of the rights of Mortgagee hereunder; enter upon, take possession of, manage and
operate the Mortgaged Property, or any part thereof; cancel, enforce or modify
any Leases; fix or modify Rents; and do any acts which the Mortgagee deems
proper to protect the security hereof. Mortgagor hereby expressly consents in
advance to the appointment of a receiver applied for and selected by or for
Mortgagee at any time upon or after an Event of Default under this Mortgage,
under the Note or under any other Loan Documents whether or not foreclosure
proceedings have been commenced or concluded and whether or not a foreclosure
sale has occurred. Any Rents collected shall be applied to the costs and
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expenses of operation, management and collection, including reasonable
attorneys' fees, to the payment of the fees and expenses of any agent or
receiver so acting, to the costs incurred by the Mortgagee, including attorneys'
fees, to the payment of taxes, assessments, insurance premiums and expenditures
for the management, repair and upkeep of the Mortgaged Property, to the
performance of landlord's obligations under any Leases and to the Indebtedness
Secured Hereby and the Obligations all in such order, amounts and manner as the
Mortgagee may require. The entering upon and taking possession of the Mortgaged
Property, the collection of such Rents and the application thereof as aforesaid
shall not cure or waive any Event of Default under this Mortgage or affect any
notice of default or invalidate any act done pursuant to such notice nor in any
way operate to prevent Mortgagee from pursuing any other remedy which it may now
or hereafter have under the terms of this Mortgage or any other security given
for the Indebtedness Secured Hereby nor shall it in any way be deemed to
constitute Mortgagee to be a "MORTGAGEE-IN-POSSESSION". Each Lease shall at
Mortgagee's option be filed for record in the local recording office of the
county where the Property is located. Also, to the extent required by the
Mortgagee, each tenant shall execute an estoppel certificate and acknowledge
receipt of a notice of the assignment of its Lease, all satisfactory in form and
content to the Mortgagee.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
6.01 Events of Default. Each of the following shall be deemed to be
an Event of Default hereunder ("EVENT OF DEFAULT"):
(a) Failure to pay the Indebtedness Secured Hereby or to make any
payment of money or to pay, perform or discharge any monetary or financial
obligation or any other Obligation within five (5) calendar days after
written notice to Senior Lender that the same is due provided, however,
that the failure to pay of all or any portion of principal or interest or
the Prepayment Fee (as defined in the Note) or any other fee or other
amount due to Mortgagee on the Maturity Date under the Note or under any
other Loan Document shall immediately constitute an Event of Default
without any grace period and Lender shall not be liable for failure to give
any notice to Senior Lender, it being understood that Lender agrees only to
use reasonable efforts to give such notice.
(b) Failure to perform any of the terms, covenants and conditions of
the Note or Loan Agreement or the Obligations (except as provided in
subsection (a), and subsection (c) through (m) of this Section), this
Mortgage or any of the other Loan Documents, on its part to be performed or
observed within fifteen (15) Business Days after written notice from
Mortgagee of such failure to perform; provided, however, if such Event of
Default is not reasonably susceptible to cure within said fifteen (15)
Business Day period, such cure period shall be extended so long as
Mortgagor has commenced such cure within said fifteen (15) Business Day
period, or as soon thereafter as is practicable, and thereafter diligently
prosecutes such cure to completion and such cure in any event is effected
within forty-five (45) days after written notice from Mortgagee of such
Event of Default; or
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(c) The occurrence of a default continuing beyond any applicable
notice and cure period under any other document or instrument that now or
hereafter evidences or secures payment of the Note or Loan Agreement; or
(d) Transfer of title to the Property or Improvements or encumbrance
without the prior written consent of Mortgagee, as governed by the
provisions of Section 3.13;
(e) Breach, incorrectness or untruth of any material warranties or
representations contained herein, in the Note or any of the other Loan
Documents where either: (i) such breach, incorrectness or untruth is
intentional or fraudulent; or (ii) whether or not such breach,
incorrectness or untruth is intentional or fraudulent, where such breach,
incorrectness or untruth of such representation or warranty would have a
material adverse impact on Mortgagee, Mortgagor, Mortgagor's Business, the
Mortgaged Property, the ability of Mortgagor to pay or perform the
Indebtedness Secured Hereby or to pay or perform the Obligations, the
ability of Mortgagor to perform under the Loan Documents, or any rights,
benefits, powers or privileges of Mortgagee under this Mortgage, the Note
or any of the other Loan Documents; or
(f) A default or event of default, after any applicable notice and
cure period, under, or institution of foreclosure or other proceedings to
enforce any lien or encumbrance of any kind upon the Property or any
portion thereof; but nothing herein shall be deemed to consent to or
approve of any second or junior mortgage, security interest, lien or
encumbrance; or
(g) Should Mortgagor or any Person who is or may become liable for all
or any part of the Indebtedness Secured Hereby, or any of their successors
and assigns, including, without limitation, the then current owners of any
interest in the Property:
(i) File a petition under the Federal Bankruptcy Code or any
similar law, state or federal, whether now or hereafter existing
(hereafter referred to as a "Bankruptcy Proceeding") or
(ii) File or issue any answer or document admitting insolvency or
inability to pay its debts; or
(iii) Fail to obtain a vacation or stay of any involuntary
Bankruptcy Proceeding within 60 days after the date filed, as
hereinafter provided; or
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(iv) Be the subject of an order for relief against it in any
Bankruptcy Proceeding; or
(v) Have a custodian or trustee or receiver appointed for or have
any court take jurisdiction of its property, or the major part
thereof, in any involuntary proceeding for the purpose of
reorganization, arrangement, dissolution, or liquidation if such
trustee or receiver shall not be discharged or if such jurisdiction
shall not be relinquished, vacated or stayed on appeal or otherwise
within 60 days; or
(vi) Make an assignment for the benefit of its creditors; or
(vii) Admit its inability to pay its debts generally as they
become due;
or
(viii) Consent to an appointment of a custodian, receiver or
trustee of all of its property, or the major part thereof or
(h) Should Mortgagor or any obligated Person take action to authorize
any actions set forth in (g) above; or
(i) Any written representation or disclosure (excluding any financial
projections) made to Mortgagee by Mortgagor or any Guarantor in connection
with or as an inducement to the making of the loan evidenced by the Note
shall prove to be false or misleading in any material respect as of the
time the same was made, whether or not any such representation or
disclosure appears as part of this Mortgage; or
(j) The abandonment of the Property or the Improvements by Mortgagor;
or
(k) The occurrence of an Event of Default under the BT Orlando
Mortgage; or
(l) Any other event not described above shall occur which, under this
Mortgage, or under the Note, or any other Loan Documents constitutes a
default by Mortgagor hereunder or thereunder or gives Mortgagee the right
to declare the Indebtedness Secured Hereby or the payment or performance of
any of the Obligations, or any part thereof, to be immediately due and
payable; or
(m) An uncured default or an event of default under any of the Senior
Loan Documents.
The definition of "EVENT OF DEFAULT" as set forth above is solely for purposes
of determining when Mortgagee may pursue the remedies described in Section 6.02
below.
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6.02 Remedies. Upon or following the occurrence of any Event of
Default Mortgagee shall have, at a minimum, the following rights and remedies:
(a) Acceleration. Mortgagee may declare the entire Indebtedness
Secured Hereby (if not then due and payable) and the Obligations to be due
and payable immediately, and notwithstanding the stated maturity in the
Note, or any of the Loan Documents, the Indebtedness Secured Hereby and the
Obligations, shall thereupon become and be immediately due and payable.
(b) Entry. Without regard to the value of the security, Mortgagee in
person or by agent or by court-appointed receiver may enter upon, take
possession of, manage and operate the Mortgaged Property or any part
thereof and do all things necessary or appropriate in Mortgagee's sole,
absolute, and uncontrolled discretion in connection therewith, including
without limitation making and enforcing, and if the same are subject to
modification or cancellation, modifying or canceling Leases upon such terms
or conditions as Mortgagee deems proper, obtaining and evicting tenants,
and fixing or modifying Rents, contracting for and making repairs and
alterations, and doing any and all other acts which Mortgagee deems proper
to protect the security hereof; and either with or without so taking
possession, in its own name or in the name of Mortgagor, suing for or
otherwise collecting and receiving the Rents, including those past due and
unpaid, and applying the balance after paying costs and expenses of
operation and collection, including reasonable attorneys' fees, upon any
Indebtedness Secured Hereby or the Obligations, and in such order as
Mortgagee may determine. Upon request of Mortgagee, Mortgagor shall
assemble and make available to Mortgagee at the site of the Property any of
the Mortgaged Property that has been removed therefrom. The entering upon
and taking possession of the Mortgaged Property, or any part thereof, or
the collection of any Rents and the application thereof as aforesaid shall
not cure or waive any Event of Default theretofore or thereafter occurring
or affect any notice of default hereunder or invalidate any act done
pursuant to any such Event of Default or notice and, notwithstanding
continuance in possession of the Property or any part thereof by Mortgagee,
Mortgagor or a receiver, and the collection, receipt and application of the
Rents, Mortgagee shall be entitled to exercise every right provided for in
this Mortgage and/or the other Loan Documents or by law or in equity.
Subject to any notice provisions and other provisions affording Mortgagor
an opportunity to cure defaults hereunder, any and all such actions may be
taken by Mortgagee irrespective of whether any notice of default or
election to sell has been given hereunder and without regard to the
adequacy of the security for the Indebtedness Secured Hereby. The exercise
by Mortgagee of any of the remedies provided herein shall be deemed an
acceleration pursuant to subsection (a) of this Section 6.02.
(c) Judicial Action. Mortgagee may bring an action in any court of
competent jurisdiction to foreclose this Mortgage as a realty mortgage or
to enforce any of the covenants and agreements hereof which are
specifically enforceable, and seek damages for the breach of other
covenants and agreements.
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(d) Power of Sale. To the extent permitted by applicable law,
Mortgagee may elect to cause the Mortgaged Property or any part thereof to
be sold as follows:
(i) Mortgagee may proceed as if all of the Mortgaged Property
were real property, in accordance with sub-subsection (iii) below, or
Mortgagee may elect to dispose of the Personalty in accordance with
sub-subsection (ii) below, separate and apart from the sale of the
remainder of the Mortgaged Property.
(ii) Mortgagee may dispose of any of the Personalty in any manner
now or hereafter permitted by the Uniform Commercial Code - Secured
Transactions, or in accordance with any other remedy provided by law.
Both Mortgagor and Mortgagee shall be eligible to purchase any part or
all of such Personally at any such disposition. Any such disposition
may be either public or private, as Mortgagee may so elect, subject to
the provisions of the UCC. Mortgagee shall give Mortgagor at least ten
(10) days' prior written notice of the time and place of any public
sale or other disposition of the Personalty or of the time at or after
which any private sale or any other intended disposition is to be
made, and such notice shall constitute commercially reasonable notice
to Mortgagor.
(iii) Mortgagee may elect to sell the Property, Fixtures,
Improvements, Rents and Leases and any Personalty Mortgagee has
elected to treat as real property pursuant to Florida law, or any part
thereof under the power of sale herein granted in any manner permitted
by applicable law. Upon such election, Mortgagee shall give such
notice of default and election to sell as may then be required by law.
Thereafter, upon the expiration of such time and the giving of such
notice of sale as may then be required by law, and without the
necessity of any demand on Mortgagor, Mortgagee, at the time and place
specified in the notice of sale, shall sell such property or part
thereof at public auction to the highest bidder for cash in lawful
money of the United States. Mortgagee may from time to time, postpone
any sale hereunder by public announcement thereof at the time and
place noticed therefor. If the Mortgaged Property consists of several
lots, parcels or items of property, Mortgagee may designate the order
in which such lots, parcels or items shall be offered for sale or
sold. Any person, including Mortgagor or Mortgagee, may purchase at
any public sale hereunder, and Mortgagee shall have the right to
purchase at any public sale hereunder by -crediting upon the bid price
the amount of all or any part of the Indebtedness Secured Hereby and
any other amounts permitted by law. Should Mortgagee desire that more
than one sale or other disposition of the Mortgaged Property be
conducted, Mortgagee may, at its option, cause the same to be
conducted simultaneously, or successively, on the same day, or at such
different days or times and in such order as Mortgagee may deem to be
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in its best interests, and no such sale shall terminate or otherwise
affect the lien of this Mortgage on any part of the Mortgaged Property
not sold until all Indebtedness Secured Hereby has been fully paid.
Upon any sale hereunder, Mortgagee shall execute and deliver to the
purchaser or purchasers a deed or deeds conveying the property so
sold, but without any covenant or warranty whatsoever, express or
implied, whereupon such purchaser or purchasers shall be let into
immediate possession; and the recitals in any such deed or deeds of
facts, such as default, the giving of notice of default and notice of
sale, and other facts affecting the regularity or validity of such
sale or disposition, shall be conclusive proof of the truth of such
facts, and any such deed or deeds shall be conclusive against all
persons as to such facts recited therein.
6.03 Proceeds of Sale. Unless otherwise required by applicable law
(Mortgagor hereby waives to the fullest extent permitted by law, any contrary
provisions of Florida law), the proceeds of any sale made under or by virtue of
Section 6.02, together with all other sums which then may be held by Mortgagee
under this Mortgage whether under the provisions of this Article VI or
otherwise, shall be applied as follows:
FIRST: To the payment of the costs and expenses of any such sale,
including the payment of the Mortgagee's and reasonable attorney's fees,
actually incurred; to the payment of all expenses, liabilities and advances made
or incurred by Mortgagee under this Mortgage, together with interest on all
advances made by Mortgagee at the Default Rate (as defined in the Note).
SECOND: To the payment of any and all sums expended by Mortgagee
under the terms of the Loan Documents, not then repaid, and all other sums
(except advances of principal and interest thereon) required to be paid by
Mortgagor pursuant to any provisions of this Mortgage, the Note or any of the
other Loan Documents, together with interest thereon at the Default Rate (as
defined under the Note).
THIRD: To the payment of the entire Indebtedness Secured Hereby and
the amount of the Obligations with interest thereon at the Default Rate (as
defined under the Note) until the same is paid in full.
FOURTH: The remainder, if any, to the Person or Persons legally
entitled thereto.
6.04 Waiver of Marshaling. Mortgagor, for itself and for all persons
hereafter claiming through or under it or who may at any time hereafter become
holders of liens junior to the lien of this Mortgage, hereby expressly waives
and releases all rights (except as may be granted by the statutes of the State
of Florida and that cannot be waived by Mortgagor) to direct the order in which
any of the Mortgaged Property shall be sold in the event of any sale or sales
pursuant hereto and to have any of the Mortgaged Property and/or any other
property now or hereafter -constituting security for any of the Indebtedness
Secured Hereby or the Obligations marshaled upon any foreclosure of this
Mortgage or the holding of a Mortgagee's Sale hereunder, or of any other
security for any of said indebtedness.
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6.05 Remedies Cumulative. No remedy herein conferred upon or reserved
to Mortgagee is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. No delay or omission of Mortgagee to exercise any right or power
accruing upon any Event of Default shall impair any right or power or shall be
construed to be a waiver of any Event of Default or any acquiescence therein;
and every power and remedy given by this Mortgage to Mortgagee may be exercised
from time to time as often as may be deemed expedient by Mortgagee. If there
exists additional security for the payment of the Indebtedness Secured Hereby or
the payment or performance of the Obligations, Mortgagee at its sole option, and
without limiting or affecting any of its rights or remedies hereunder, may
exercise any of the rights and remedies to which it may be entitled hereunder
either concurrently with whatever rights and remedies it may have in connection
with such other security or in such Order as it may determine. Any application
of any amounts or any portion thereof held by Mortgagee at any time as,
additional security hereunder, to any of the Indebtedness Secured Hereby or any
of the Obligations shall not extend or postpone the due dates of any payments
due from Mortgagor to Mortgagee hereunder or under the Note or any of the other
Loan Documents, or change the amounts of any such payments or otherwise be
construed to cure or waive any Event of Default or notice of default hereunder
or invalidate any act done pursuant to any such Event of Default or notice.
6.06 Waiver by Mortgagor. Except as otherwise expressly set forth
herein, Mortgagor and all Persons who are or may be or become liable to pay all
or any part of the Indebtedness Secured Hereby waive any requirements of
presentment, demands for payment, notices of nonpayment or late payment,
protest, notices of protest, notices of dishonor and all other formalities.
Mortgagor and all Persons who are or may become liable to pay all or any part of
the Indebtedness Secured Hereby waive all rights and/or privileges it or they
might otherwise have to require Mortgagee to proceed against or exhaust the
assets encumbered hereby or by any other Loan Document or instrument securing
the Note or the Obligations or to proceed against any Person who is or may
become liable to pay all or any part of the Indebtedness Secured Hereby, or to
pursue any other remedy available to Mortgagee in any particular manner or order
under the legal or equitable doctrine or principle of marshaling and/or
suretyship, and further agree that Mortgagee may proceed against any or all of
the assets encumbered hereby or by any other Loan Document, in such order and
manner as Mortgagee in its sole discretion may determine.
6.07 Additional Rights and Remedies. In the event Mortgagor fails or
refuses to surrender possession of the Mortgaged Property after any Mortgagee's
sale, Mortgagor shall be deemed a tenant at sufferance, subject to eviction by
means of forcible entry and detainer proceedings, provided that this remedy is
not exclusive or in derogation of any other right or remedy available to
Mortgagee.
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ARTICLE VII
MISCELLANEOUS
7.01 Taxation of Note and Mortgage. If at any time before the
Indebtedness Secured Hereby is fully paid and the Obligations fully paid and
performed, any law be enacted, deducting from the value of real estate, for the
purposes of taxation, any lien thereon, or revising or changing in any way the
laws now in force for the taxation of deeds of trust or bonds, or the debts
secured hereby, for state or local purposes, or the manner of collection of such
taxes, so as to affect adversely this Mortgage or the Indebtedness Secured
Hereby, or the owner and holder thereof in respect thereto, then this Mortgage
and the Indebtedness Secured Hereby and the Obligations shall at the option of
Mortgagee without notice to any party, become immediately due and payable. If
any such law should be enacted and to the extent permitted by such law,
Mortgagor shall have the opportunity of paying to Mortgagee the amount of any
additional cost or taxes to Mortgagee from such law. Mortgagor, upon demand by
the Mortgagee, shall pay such taxes or assessments, or reimburse Mortgagee
therefor, in which case Mortgagee shall not have the right to declare the
indebtedness Secured Hereby and the Obligations to be immediately due and
payable; provided, however, that Mortgagor shall not have the right to pay to or
reimburse Mortgagee for such taxes or assessments if in the opinion of counsel
for Mortgagee: (a) it might be unlawful to require Mortgagor to make such
payment; or (b) the making of such payment might result in the imposition of
interest beyond the maximum amount permitted by law. In such event, Mortgagee
may elect, by notice in writing given to Mortgagor, to declare all of the
Indebtedness Secured Hereby and the Obligations to be and become due and payable
sixty (60) days from the giving of such notice. Notwithstanding the foregoing,
it is understood and agreed that Mortgagor shall not be obligated to pay any
portion of Mortgagee's state and/or federal income tax.
7.02 Non-Waiver.
(a) By accepting payment of any sum secured hereby after its due date
or altered performance of the Indebtedness Secured Hereby or any of the
Obligations, Mortgagee shall not waive its right against any person
obligated directly or indirectly hereunder or with respect to any
Indebtedness Secured Hereby or any Obligations, either to require prompt
payment when due of all other sums so secured or to take remedy for failure
to make such prompt payment or full or unaltered performance. No exercise
of any right or remedy by Mortgagor or Mortgagee hereunder shall constitute
a waiver of any other right or remedy herein contained or provided by law.
(b) No delay or omission of Mortgagor or Mortgagee in the exercise or
any right, power or remedy accruing hereunder or arising otherwise shall
impair any such right, power or remedy, or be construed to be a waiver of
any default or acquiescence therein.
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(c) Receipt of Rents, awards, and any other monies or evidences
thereof, pursuant to the provisions of this Mortgage and any disposition of
the same by Mortgagee shall not constitute a waiver of the right of
foreclosure or a Mortgagee's sale by Mortgagee upon the occurrence of an
Event of Default or failure of performance by Mortgagor of any covenant or
agreement contained herein, in the Note, or in any of the other Loan
Documents.
7.03 Protection of Security. Should Mortgagor fail to make any
payment or to perform any covenant as herein provided, Mortgagee (but without
obligation so to do and without notice to or demand upon Mortgagor and without
releasing Mortgagor from any obligation hereon) may: (a) make or do the same in
the manner and to such extent as Mortgagee may deem necessary to protect the
security hereof, Mortgagee being authorized to enter upon the Mortgaged Property
for such purposes; (b) commence, appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Mortgagee;
or (c) pay, purchase, contest, or compromise any encumbrance, charge or lien
which in the reasonable judgment of Mortgagee is prior or superior hereto and,
in exercising any such power, incur any liability and expend whatever amounts in
its reasonable discretion it may deem necessary therefor, including cost of
evidence of title and reasonable counsel fees. Any expenditures in connection'
herewith shall constitute an advance hereunder and shall be immediately due and
payable upon demand and shall bear interest from the date made until paid at the
Default Rate (as defined under the Note).
7.04 Rule of Construction. When the identity of the parties hereto or
other circumstances make it appropriate, as used in this Mortgage, any gender
shall include any other gender, and the singular number shall include the
plural. The headings of each article, section or subsection herein are for
information and convenience only and do not limit or construe the contents of
any provision hereof. The language in all parts of this Mortgage shall be in all
cases construed simply, according to its fair meaning and not for or against
Mortgagor or Mortgagee, regardless of which party drafted the particular
language that is being construed, both parties having been represented by
adequate counsel.
7.05 Severability. If any term of this Mortgage or the application
thereof to any Person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Mortgage or the application of such term to
Persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Mortgage
shall be valid and enforceable to the fullest extent permitted by law.
7.06 Successors In Interest This Mortgage applies to, inures to the
benefit of, and is binding not only on the parties hereto, but also on their
heirs, executors, administrators, successors and assigns (but nothing herein
shall be construed as or deemed to constitute Mortgagee's consent to any sale,
transfer or conveyance of the Mortgaged Property or any interest in Mortgagor).
All obligations of Mortgagor hereunder and any Persons who are or may become
liable to pay the Indebtedness Secured Hereby or any portion thereof are joint
and several.
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7.07 Notices. All notices, demands, consents, certificates or other
`writings or communications with respect to this Mortgage shall be in writing
and shall be effective if sent by certified or registered United States mail,
postage pre-paid, return receipt requested, or by overnight courier or same day
delivery service, or by facsimile with written confirmation served in any other
manner for providing notice herein as follows:
If to Mortgagor, addressed as follows:
Thackeray Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: 212/0000000
With copy to:
(a) Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: 212/000-0000
(b) Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxx LLP
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Fax: 407/000-0000 (Courier: 000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000, Xxxxxxx, XX 00000-0000)
(c) c/o Belz Enterprises
000 Xxxxxxx Xxxxx, Xxxxx
0000 Xxxxxxx XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: 901/000-0000
(d) Xxxxxxx Xxxxxxxxx, Esquire
Xxxxxxxxx Xxxxx, PLLC
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx XX 00 000-0000
Fax No.: 000-000-0000
46
If to Mortgagee:
Canpartners Realty Holding Company IV LLC
c/o Canyon Capital Realty Advisors
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx XX 00000
Attention: Mr. K. Xxxxxx Xxxxxx
Xx. Xxxxxxxx X. Xxxx
Fax No.: 000-000-0000
with a copy to:
Xxxx X. XxXxxxxx, Esquire
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx XX 00000-0000
Fax No.: 000-000-0000
or to such other address as the party to receive notice may form time to time
designate by written notice to the other in the manner above described. Notices
shall be deemed to have been given or served upon receipt (which, with respect
to delivery by United States certified or registered mail, overnight mail or
hand deliveries, shall mean the delivery was signed for or refused at the
appropriate address; and with respect to a fax delivery, shall mean the receipt
by the sender of a confirmation of successful transmission).
7.08 Modifications. This Mortgage may not be amended, modified or
changed nor shall any waiver of any provision hereof be effective, except only
by an instrument in writing and signed by the party against whom enforcement of
any waiver, amendment, change, modification or discharge is sought.
7.09 Governing Law. This Mortgage shall be construed according to and
governed by the laws of the State of Florida (excluding the choice of law
provisions thereof).
7.10 Waiver of Jury Trial. EACH OF MORTGAGEE AND MORTGAGOR HEREBY
EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY MORTGAGEE IN CONNECTION WITH THIS MORTGAGE AND/OR THE LOAN
DOCUMENTS, ANY AND EVERY RIGHT IT MAY HAVE TO (I) A TRIAL BY JURY, (II)
INTERPOSE ANY COUNTERCLAIM THEREIN, EXCEPT TO THE EXTENT THAT SAID COUNTERCLAIM
MUST BE ASSERTED PURSUANT TO APPLICABLE LAW OR OTHERWISE BE BART{ED FROM BEING
ASSERTED IN ANY OTHER ACTION AND (III) HAVE THE SAME CONSOLIDATED WITH ANY OTHER
OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED SHALL PREVENT
OR PROHIBIT EITHER PARTY FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION WITH
RESPECT TO ANY ASSERTED CLAIM.
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7.11 Captions. The captions set forth at the beginning of the various
Sections of this Mortgage are for convenience only and shall not be used to
interpret or construe the provisions of this Mortgage.
7.12 Mortgagor Not Released. Extension of the time for payment or
modification of the terms of payment of any sums secured by this Mortgage
granted by Mortgagee to any successor in interest of Mortgagor shall not operate
to release, in any manner, the liability of the original Mortgagor. Mortgagee
shall not be required to commence proceedings against such successor or refuse
to extend time for payment or otherwise modify the terms of payment of the sums
secured by this Mortgage by reason of any demand made by the original Mortgagor.
Without affecting the liability of any person, including Mortgagor, for the
payment of any Indebtedness Secured Hereby, or the lien of this Mortgage on the
remainder of the Mortgaged Property for the full amount of any such indebtedness
unpaid, Mortgagee is empowered as follows: Mortgagee may from time to time and
without notice (a) release any person liable for the payment of any of the
Indebtedness Secured Hereby or the Obligations, (b) extend the time or, with the
consent of Mortgagor, otherwise alter the terms of payment of any of the
Indebtedness Secured Hereby or the Obligations, (c) accept additional real or
personal property of any kind as security therefor, whether evidenced by deeds
of trust, mortgages, security agreements or any other instruments of security,
or (d) alter, substitute or release any property securing the Indebtedness
Secured Hereby or the Obligations. Mortgagee may, at any time, and from time to
time, upon the written request of Mortgagor or after an Event of Default (i)
consent to the making of any map or plat of the Property or any part thereof,
(ii) join in granting any easement or creating any restriction thereon, (iii)
join in any subordination or other agreement affecting this Mortgage or the lien
or charge hereof, or (iv) reconvey, without any warranty, all or any part of the
Mortgaged Property.
7.13 Statute of Limitations. The pleading of any statute of
limitations as a defense to any and all obligations secured by this Mortgage is
hereby waived to the fullest extent permitted by law by Mortgagor.
7.14 Consent. Wherever any consent or approval of Mortgagee is
required hereunder, then, unless otherwise specifically provided herein, such
consent or approval may be given or withheld in Mortgagee's sole and absolute
discretion. The granting or withholding of consent by Mortgagee to any
transaction as required by the terms hereof shall not be deemed a waiver of the
right to require consent to future or successive transactions.
7.15 Future Advances. This Mortgage shall secure not only existing
indebtedness, but also such future advances, whether such advances are
obligatory or to be made at the option of the Mortgagee or otherwise, as are
made within twenty (20) years from the date hereof, to the same extent as if
such future advances were made on the date of the execution of this Mortgage,
but such secured indebtedness shall not exceed at any time the maximum principal
amount of two times the amount of the Note, plus interest thereon, and any
disbursements made for the payment of taxes, levies or insurance on the
Mortgaged Property with interest on such disbursements. Any such future
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advances, whether obligatory or to be made at the option of the Mortgagee or
otherwise, may be made either prior to or after the due date of the Note or any
other Obligations secured by this Mortgage. This Mortgage is given for the
specific purpose of securing any and all indebtedness by the Mortgagor to the
Mortgagee (but in no event shall the secured indebtedness exceed at any time the
maximum principal amount set forth in this paragraph) in whatever manner this
indebtedness may be evidenced or represented until this Mortgage is satisfied of
record. All covenants and agreements contained in this Mortgage shall be
applicable to all further advances made by the Mortgagee to the Mortgagor under
this future advance clause. The Mortgagor agrees that it will not, without the
consent of the Mortgagee, execute and record any notice limiting the right of
the Mortgagee to make or the Mortgagor to accept future advances hereunder.
Any advances that may be made by the Mortgagee to pay off the Senior
Loan and Senior Mortgage as provided in Section 3.18 above, shall be deemed to
be a future advance made hereunder and secured by this Mortgage.
7.16 Concerning Information Supplied, Representations and Warranties.
Mortgagor warrants that all documents and all information supplied or hereafter
supplied to Mortgagee concerning Mortgagor or the Mortgaged Property are and
will continue to be true, correct, complete and without material adverse change
until the Indebtedness Secured Hereby and all Obligations have been paid and
performed in full. Mortgagor agrees to promptly notify Mortgagee in writing of
any material adverse changes in any of the foregoing. All representations,
warranties, covenants and agreements of Mortgagor made herein or in any
certificate or other documents delivered to Mortgagee by or on behalf of
Mortgagor or any Guarantor shall be deemed to have been relied upon by Mortgagee
notwithstanding any investigation heretofore or hereafter made by Mortgagee or
on its behalf, and shall continue in full force and effect as long as any of the
Indebtedness Secured Hereby remains unpaid or any of the Obligations remain
unpaid or unperformed.
7.17 Further Assurances. Mortgagor will, upon request of Mortgagee,
promptly correct any defect, error or omission which may be discovered in the
contents of this Mortgage or in the execution or acknowledgment hereof, and will
execute, acknowledge and deliver such further instruments and do such further
acts as may be necessary or as may be reasonably requested by Mortgagee to carry
out more effectively the purposes of this Mortgage, to subject to the lien and
security interest hereby created any of Mortgagor's properties, rights or
interests covered or intended to be covered hereby, and to perfect and maintain
such lien and security interest.
7.18 Attorneys' Fees. In the event that it becomes necessary for
Mortgagee to employ legal counsel or to take legal action to collect the
Indebtedness Secured Hereby or the Obligations or otherwise to enforce any
provision hereof, or to protect any of Mortgagee's rights hereunder, Mortgagor
and all Persons who are or may become liable to pay or perform all or part of
the Indebtedness Secured Hereby and/or any one or more of the Obligations agree
to pay to Mortgagee, in addition to the actual costs of any legal proceeding or
action, reasonable attorneys' fees actually incurred by Mortgagee, and all costs
of preparation and conduct of such proceedings, including costs of title
searches, trustee sale guaranties and title policy commitments, all of which
shall be a lien upon the Mortgaged Property, secured by this Mortgage and shall
bear interest from the date of expenditure by Mortgagee until paid at the
Default Rate (as defined under the Note).
49
7.19 Subrogation. Mortgagee shall be subrogated to the lien
notwithstanding its release of record, of any prior mortgage, Mortgage or other
lien or encumbrance paid or discharged from the proceeds of the Note or from any
other advance made by Mortgagee.
7.20 No Merger. It being the desire and intention of the parties
hereto that this Mortgage and the lien hereof do not merge in fee simple title
to the Mortgaged Property, it is hereby understood and agreed that should the
Mortgagee acquire an additional or other interests in or to the Mortgaged
Property or the ownership thereof, then, unless a contrary intent is manifested
by the Mortgagee as evidenced by an express statement to that effect in an
appropriate document duly recorded, this Mortgage and the lien hereof shall not
merge in the fee simple title to the Mortgaged Property, toward the end that
this Mortgage may be foreclosed as if owned by a stranger to such fee simple
title.
7.21 Mortgagee Not a Joint Venturer or Partner. Mortgagor and
Mortgagee acknowledge and agree that in no event shall Mortgagee be deemed to be
a partner or joint venturer or member of a joint enterprise with Mortgagor.
Without limitation of the foregoing, Mortgagee shall not be deemed to be such
partner or joint venturer on account of its becoming a mortgagee-in-possession
or exercising any rights pursuant to this Mortgage, the Note or any of the other
Loan Documents.
7.22 No Third Party Benefits. This Mortgage, the Note and the other
Loan Documents are made for the sole benefit of Mortgagor and Mortgagee, and no
other party shall have any legal interest of any kind under or by reason of any
of the foregoing. Whether or not Mortgagee elects to employ any or all of the
rights, powers or remedies available to it under any of the foregoing, Mortgagee
shall have no obligation or liability of any kind to any third party by reason
of any of the foregoing or any of Mortgagee's actions or omissions pursuant
thereto or otherwise in connection with this Mortgage.
7.23 No Offset. All sums comprising the Indebtedness Secured Hereby
or the Obligations payable by Mortgagor shall be paid without notice, demand,
offset, deduction, counterclaim, defense, abatement, suspension, diminution or
reduction. Mortgagor's obligation to pay in accordance with this provision shall
not be released, discharged or otherwise diminished by reason of: (a) any damage
to or destruction of, or any condemnation or similar taking of, the Mortgaged
Property or any portion thereof; (b) any restriction or prevention of, or
interference with, the use of the Mortgaged Property or any portion thereof; (c)
any title defect or encumbrance, or any eviction from the Mortgaged Property or
any portion thereof by the holder of superior title or otherwise; (d) any
bankruptcy, insolvency, reorganization, composition, dissolution, liquidation or
similar proceeding relating to Mortgagor or Mortgagee, or any action taken with
respect to this Mortgage by any trustee or receiver of Mortgagor or Mortgagee,
or by any court, in any such proceeding; (e) any claim that Mortgagor may now or
in the future have against Mortgagee; (f) any default or failure on the part of
Mortgagee to perform or comply with any of the terms of this Mortgage or any
other agreement with Mortgagor; or (g) any other similar occurrence.
50
7.24 Maximum Interest Payable.
(a) Regardless of any provision contained in this Mortgage, the Note
or in any other Loan Document, Mortgagee shall never be entitled to
receive, collect or apply as interest on the Note or on any other sums
secured hereby, any amount in excess of the Highest Lawful Rate
(hereinafter defined) and, in the event Mortgagee ever, receives, collects
or applies as interest any such excess, such amount which would be
excessive interest shall be deemed a partial prepayment of principal under
the Note or, at Mortgagee's sole option, as a payment of any, other sums or
Obligations owed or owing under this Mortgage or any other Loan Documents,
and shall be treated as such; and, if the principal of the Note and any
other sums or Obligation owed or owing under this Mortgage, the Note or
other Loan Documents shall have been paid in full, any remaining excess
shall forthwith be paid to Mortgagor. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the
Highest Lawful Rate, Mortgagor and Mortgagee shall, to the maximum extent
permitted under applicable law, (i) characterize any non-principal payment
as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the Note so that the interest
rate is uniform throughout the entire term thereof; provided that if the
Note and all other sums or Obligations hereunder or under the Note and
other Loan Documents are paid and performed in full prior to the end of the
full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Highest Lawful Rate, Mortgagee
shall refund to Mortgagor the amount of such excess or credit the amount of
such excess against the principal of the Note or any sums or Obligations
yet to be paid hereunder or under the Note or other Loan Documents, and, in
such event, Mortgagee shall not be subject to any penalties provided by any
laws for contracting for, charging or receiving in excess of the Highest
Lawful Rate. "Highest Lawful Rate" shall mean the maximum rate of interest
which Mortgagee is allowed to contract for, charge, take, reserve or
receive under applicable law after taking into account, to the extent
required by applicable law, any and all relevant payments or charges under
the Note; provided, however, that if, after the date hereof, the Highest
Lawful Rate is decreased from that existing on the date hereof, such
decrease shall not be applicable hereto or to the Note or the other Loan
Documents unless such decrease is by law made retroactively applicable
hereto, or to the Note, the Obligations and the other Loan Documents.
51
(b) All fees, charges or other sums (collectively "Additional Sums")
paid or to be paid by Mortgagor to Mortgagee or the holder of the Note,
whether pursuant to the Note, this Mortgage or the other Loan Documents or
otherwise which, under applicable law, may be deemed to be in the nature of
interest with respect to such indebtedness, shall, for the purpose of any
applicable law which may limit the maximum rate or interest that may be
charged with respect to such indebtedness, be payable by Mortgagor as, and
shall be deemed to be, additional interest which additional interest
Mortgagor covenants and agrees to pay. For such purposes only, the agreed
upon and contracted rates of interest above shall be deemed to be increased
to reflect the Additional Sums as interest, which rate(s) of interest
Mortgagor hereby covenants and agrees to pay.
7.25 Participation. Mortgagor acknowledges that Mortgagee may elect
from time to time in its sole discretion, after the date of this Mortgage, to
sell, assign or grant participations in the Note, this Mortgage and the other
Loan Documents or any one or more of them, to one or more Eligible Assignees at
no cost or expense to Mortgagor. Mortgagor acknowledges that Mortgagee may
distribute to such Eligible Assignee all documents and information (including,
but not limited to, financial information), which has been or is hereafter
provided or known to Mortgagee with respect to the Mortgaged Property and its
operation. In the event of any such sale, assignment or participation, Mortgagee
and any such Eligible Assignee(s) shall share in the rights and obligations of
"Lender" as set forth in the Loan Documents and "Mortgagee" as set forth in this
Mortgage only as and to the extent that they agree among themselves. In
connection with any such sale, assignment or participation, Mortgagor further
agrees that the Loan Documents shall be sufficient evidence of the obligation of
Mortgagor to each purchaser, assignee or participant and, upon written request
by Mortgagee, Mortgagor shall enter into such amendments or modifications to the
Loan Documents as may be reasonably required in order to evidence any such sale,
assignment or participation. The indemnity obligations of Mortgagor under the
Loan Documents shall also apply with respect to any purchaser, assignee or
participant.
7.26 Intentionally omitted.
7.27 Integration. This Mortgage (and, to the extent referred to
herein, the Note and the other Loan Documents) constitutes the full and
complete integrated agreement with respect to the subject matter hereof and
supersedes any prior or contemporaneous oral or written agreements. By signing
this Mortgage, Mortgagor agrees that any such different or additional terms or
provisions are superseded by the provisions of this Mortgage, the Note and the
other Loan Documents.
7.28 Exculpation. Notwithstanding anything to the contrary contained
in this Mortgage, the Note or in any other Loan Document (but subject to the
provisions of Sections 7.29, 7.30 and 7.31 of this Mortgage), Mortgagee shall
not enforce the liability and obligation of Mortgagor, or the shareholders of
Mortgagor and the officers and directors of each of them (the "Exculpated
Parties") to perform and observe the obligations contained in the Note, this
Mortgage and all other Loan Documents by any action or proceeding to collect
damages or wherein a money judgment or any deficiency judgment or order or any
judgment establishing any personal obligation or liability shall be sought
52
against Exculpated Parties. Mortgagee may bring a foreclosure action, action for
specific performance or other appropriate action or proceeding to enable
Mortgagee to enforce and realize upon this Mortgage, the Note, the other Loan
Documents, and the interest in the Property and the other Collateral granted to
Mortgagee under the Loan Documents; provided, however, subject to the provisions
of Sections 7.29, 7.30 and 7.31, that any judgment in any action or proceeding
shall be enforceable against Exculpated Parties only to the extent of
Mortgagor's interest in the Property and the other Collateral granted to
Mortgagee under the Loan Documents. Mortgagee, by accepting this Mortgage, the
Note and the other Loan Documents, agrees that it shall not, except as otherwise
provided below, xxx for or demand any deficiency judgment against Exculpated
Parties in any action or proceeding, under or by reason of or under or in
connection with this Mortgage, the Note or the other Loan Documents.
7.29 Reservation of Certain Rights. The provisions of Section 7.28 of
this Mortgage shall not (a) constitute a waiver, release or impairment of any of
the obligations of Mortgagor pursuant to this Mortgage, the Note and the other
Loan Documents except as previously provided in Section 7.28; (b) impair the
right of Mortgagee to name Exculpated Parties as a party defendant in any action
or suit for judicial foreclosure and sale under the Loan Documents; (c) affect
the validity or enforceability of any indemnity, guaranty, master lease or
similar instrument made in connection with this Mortgage, the Note and the other
Loan Documents, (d) impair the right of Mortgagee to obtain the appointment of a
receiver; or (e) impair the enforcement of the Note or the Assignment of Leases
and Rents executed in connection herewith.
7.30 Exceptions to Exculpation. Notwithstanding the provisions of
Section 7.28 of this Mortgage to the contrary, Mortgagor and each Guarantor
shall be personally liable to Mortgagee on a joint and several basis for the
claims, suits, liabilities (including, without limitation, strict liabilities),
actions, proceedings, obligations, debts, damages, losses, costs, expenses,
diminutions in value, fines, penalties, charges, fees, expenses, judgments,
awards, amounts paid in settlement, or punitive damages, of whatever kind or
nature (including, but not limited to reasonable attorneys' fees and other costs
of defense) Mortgagee incurs due to: (a) fraud or intentional misrepresentation
by Mortgagor or any person or entity acting on behalf of Mortgagor in connection
with the execution and the delivery of this Mortgage and the other Loan
Documents to which Mortgagor is a party; (b)misapplication or misappropriation
of rents, tenant security deposits, or other revenues received by Mortgagor from
the operation of the Property; (c) misapplication or misappropriation by
Mortgagor of tenant security deposits or rents collected by Mortgagor in
advance; (d) the misapplication or misappropriation of insurance proceeds or
condemnation awards by Mortgagor; (e) any distributions, fees or commissions
paid by Mortgagor after the occurrence and during the continuance of an Event of
Default to any principal, Affiliate, partner or shareholder of Mortgagor in
violation of the terms of this Mortgage or Loan Documents to which Mortgagor is
a party (f) the waste, misapplication or misappropriation any of the Collateral,
53
including the Property; (g) criminal acts or gross negligence perpetrated by
Mortgagor in respect of the Property; (h) any failure by Mortgagor under the
Environmental Indemnity Agreement executed by Mortgagor in favor of Mortgagee to
comply with the terms and provisions thereof; (i) Mortgagor selling the
Property, or incurring debt or encumbrances against the Property without
Mortgagee's prior written consent; (j) the costs of the enforcement of
Mortgagee's rights and remedies hereunder or under the other Loan Documents; (i)
Mortgagor or the Collateral Property and/or any Improvements, or any part
thereof becoming an asset in (A) a voluntary bankruptcy or insolvency
proceeding, or (B) an involuntary bankruptcy or insolvency proceeding commenced
by any person or entity other than Mortgagee which is not dismissed within
ninety (90) days of filing; (k) Mortgagor interfering with , hindering,
preventing or attempting to prevent the enforcement of the rights and remedies
under the Loan Documents; (1) failure of the Mortgagor to pay taxes, assessments
or other charges which might create liens on any portion of the Property (to the
full extent of any such taxes, assessments or other charges), (m) any loss which
would have been covered by insurance required to be maintained under the terms
of any of this Mortgage, which Mortgagor failed to maintain, and (n) any claim
or cause of action by a contractor, material supplier or other person entitled
to claim a mechanic's lien against the Property and/or any Improvements based
upon an alleged failure by Mortgagor to pay claims due any such person related
to the Property.
7.31 Mortgagor's Early Satisfaction Right. Notwithstanding any other
provision in this Mortgage, Mortgagee may satisfy this Mortgage including the
Absolute Assignment of Leases, Rents and Income from Mortgagor to Mortgagee of
even date herewith and all other liens and security interests created in this
Mortgage, upon (i) payment to the Loan B Senior Lender and Loan B Senior
Lender's acceptance of a satisfaction payment ("Satisfaction Payment") of Eight
Million Five Hundred Thousand and no/100 Dollars ($8,500,000.00) whether or not
there is a default under the Obligations or Senior Loan B Obligations, which
satisfaction payment shall be applied to the Outstanding Principal Balance of
the Note evidencing Senior Loan B, and (ii) Loan B Senior Lender's release of
the Senior Amended and Restated Mortgage C, which release shall be by a
Satisfaction of Mortgage recorded in the public records of Orange County,
Florida. The satisfaction of this Mortgage shall also be by a Satisfaction of
Mortgage recorded in the public records of Orange County, Florida. Mortgagor's
right to such early satisfaction of this Mortgage in accordance with the
provisions of this section is referred to as "MORTGAGOR'S EARLY SATISFACTION
RIGHT"."
7.32 Senior Loan. Notwithstanding anything to the contrary contained
herein, this Mortgage is subject to the rights of the Senior Lender (as defined
in the Loan Agreement) under the Senior Loan Documents (as defined in the Loan
Agreement) pursuant to the terms and conditions of the Intercreditor Agreement
(as defined in the Loan Agreement).
[SIGNATURES ON FOLLOWING PAGE]
54
IN WITNESS WHEREOF, Mortgagor has caused this instrument to be
executed and delivered as of the date first written above.
THACKERAY CORPORATION,
A DELAWARE CORPORATION
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
