Exhibit 10.9
RETURN TO:
Xxxxx Xxxxxxxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
THIS INSTRUMENT PREPARED BY:
Xxxxx Xxxxxxxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
NOTICE TO RECORDER:
MORTGAGEE HAS LIMITED THE AMOUNT OF ITS RECOVERY AGAINST THE MORTGAGED PROPERTY
AS DESCRIBED HEREIN TO AN AMOUNT OF INDEBTEDNESS NOT TO EXCEED
$6,000,000.00 SUBJECT TO SECTION 697.04 OF THE FLORIDA STATUTES.
ACCORDINGLY, PURSUANT TO FLORIDA ADMINISTRATIVE CODE SECTION 12B-4.053(31),
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $21,000.00 ARE DUE IN CONNECTION WITH
THE RECORDING HEREOF. PURSUANT TO FLORIDA ADMINISTRATIVE CODE SECTION
12C-2.004(2), FLORIDA INTANGIBLE TAXES IN THE AMOUNT OF $12,000.00 ARE DUE IN
CONNECTION WITH THE RECORDING HEREOF.
---------------------------------------------------------------
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
from
U.S. PLASTIC LUMBER LTD.,
doing business in Florida as U.S. PLASTIC LUMBER, INC. - WORLDWIDE, as Mortgagor
to
GUARANTY BUSINESS CREDIT CORPORATION,
as Mortgagee
Dated as of November 26, 2002,
Effective as of December 19, 2002
---------------------------------------------------------------
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS (this "Mortgage") dated as of November 26, 2002,
and effective as of December 19, 2002 (the "Effective Date"), by U.S. PLASTIC
LUMBER LTD., a Delaware corporation, doing business in Florida as U.S. PLASTIC
LUMBER, INC. - WORLDWIDE ("Mortgagor"), having its principal place of business
at 0000 Xxxxxx Xxxx, Xxxxx 000X, Xxxx Xxxxx, Xxxxxxx 00000, in favor of GUARANTY
BUSINESS CREDIT CORPORATION ("Mortgagee"), a Delaware corporation, having an
office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, pursuant to a Loan and Security Agreement (the "Loan
Agreement") dated as of November [__] between Mortgagor and Mortgagee, Mortgagee
has agreed to extend credit to Mortgagor on the terms set forth in the Loan
Agreement.
WHEREAS, pursuant to the terms of the Loan Agreement,
Mortgagor and Mortgagee have entered into that Pledge Agreement, dated as of
December 19, 2002 (the "Pledge Agreement" and together with the Loan Agreement,
the "Loan Documents") (all obligations of Mortgagor to Mortgagee under the Loan
Documents are hereinafter referred to as the "Obligations") pursuant to which
Xxxxxxxxx pledged to, and granted a security interest in favor of, Mortagee with
respect to certain of its assets.
WHEREAS, pursuant to the Loan Agreement, Xxxxxxxxx has agreed
to grant this Mortgage, and the liens and security interests referred to herein,
to secure (i) complete payment and performance of the Obligations by Xxxxxxxxx,
(ii) other payment and performance obligations contained in this Mortgage to be
performed by Xxxxxxxxx, and (iii) any future advances made by Mortgagee in
connection with the property mortgaged hereby, whenever incurred (all of the
aforesaid obligations of Mortgagor to Mortgagee being referred to herein
collectively as, the "Secured Obligations").
NOW, THEREFORE, in consideration of the foregoing Recitals and
to secure payment of the Secured Obligations and in consideration of One Dollar
($1.00) in hand paid, the receipt and sufficiency whereof are hereby
acknowledged, Xxxxxxxxx does hereby grant, bargain, assign, sell, remise,
release, alien, convey, mortgage and warrant to Mortgagee, its successors and
assigns, that certain real estate legally described in Exhibit A hereto (the
"Land") in the City of Ocala, County of Xxxxxx, State of Florida (the "State");
together with all additional lands, estates and development rights hereafter
acquired by Mortgagor for use in connection with the Land and the development of
the Land and all additional lands and estates therein which may, from time to
time, by supplemental mortgage or otherwise be expressly made subject to the
lien of this Mortgage, and all right, title and interest, if any, which
Mortgagor may now have or hereafter acquire in and to all improvements,
buildings and structures now or hereafter located thereon of every nature
whatsoever (which, together with the Land, is herein called the "Property"), TO
HAVE AND TO HOLD the Property, and Xxxxxxxxx does hereby bind itself, its
successors and assigns to WARRANT AND FOREVER DEFEND the title to the Property
unto Mortgagee.
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Property, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), air-rights and development rights, reversionary and remainder rights,
and easements, of every nature whatsoever, located in or on the Property and all
other rights and privileges thereunto belonging or appertaining and all
extensions, additions, improvements, betterments, renewals, substitutions and
replacements to or of any of the rights and interests described in subparagraphs
(a) and (b) above (hereinafter the "Property Rights").
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, or used or intended to be used in connection with, or with the
operation of, the Property, including, but not limited to (a) all apparatus,
inventory, machinery and equipment of Mortgagor (the "Equipment"); and (b) all
extensions, additions, improvements, betterments, renewals, substitutions and
replacements to or of any of the foregoing (collectively, the "Fixtures"); and
(c) all personal property not constituting Equipment or Fixtures that are used
in connection with ownership, use, or occupancy of the Mortgaged Property (as
hereinafter defined), including, without limitation, all furnishings, machinery,
equipment, heating, air conditioning, plumbing, lighting, communications and
elevator fixtures, and other property constituting fixtures of every kind and
nature whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Property, or appurtenant thereto,
and usable in connection with the present or future operation and occupancy of
the Property and all building equipment, materials and supplies of any nature
constituting fixtures whatsoever owned by Xxxxxxxxx, or in which Mortgagor has
or shall have an interest, now or hereafter located upon the Property, or
appurtenant thereto, or usable in connection with the present or future
operation and occupancy of the Property (the "Personal Property"). It is
mutually agreed, intended and declared that the Property and all of the Property
Rights, Equipment and Fixtures owned by Xxxxxxxxx (referred to collectively
herein as the "Real Property") shall, so far as permitted by law, be deemed to
form a part and parcel of the Land and for the purpose of this Mortgage to be
real estate and covered by this Mortgage.
TOGETHER WITH all the estate, right, title and interest of the
Mortgagor in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the Real
Property, under the power of eminent domain or for any other damage (whether
caused by such taking or otherwise) to the Real Property (including, without
limitation, all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Property for any injury to
or decrease in the value of the Property, or any part thereof, or any part
thereof, or to any rights appurtenant
2
thereto, and all proceeds of any sales or other dispositions of the Real
Property or any part thereof; and (except as otherwise provided herein or in the
Loan Documents) Mortgagee is hereby authorized to collect and receive said
awards and proceeds and to give proper receipts and acquittance therefor, and to
apply the same as provided herein unless expressly provided otherwise in the
Loan Documents (in which case such conflicting terms of the Loan Documents shall
govern in such instance); and (ii) all contract rights, general intangibles,
actions and rights of action relating to the Mortgaged Property including,
without limitation, all rights to insurance proceeds, unearned premiums,
judgments, settlements in lieu thereof or compensation from any governmental or
quasi-governmental authority in lieu thereof arising from or relating to damage
to the Mortgaged Property caused by casualty of any kind or nature (including,
without limitation, natural disaster, act of war, terrorist act or any other
similar event); and (iii) all proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Mortgaged Property; and
(iv) all refunds, rebates or credits in connection with a reduction in real
estate taxes and assessments charged against the Mortgaged Property as a result
of tax certiorari or any applications or proceedings for reduction; and (v) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, proceeds of insurance and condemnation and other
awards, into cash or liquidation claims; and (vi) the right, in the name and on
behalf of Mortgagor, to appear in and defend any action or proceeding brought
with respect to the Mortgaged Property and to commence any action or proceeding
to protect the interest of Mortgagee in the Mortgaged Property; and (vii) all
agreements, contracts, certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter entered into, and
all rights therein and thereto, respecting or pertaining to the use, occupation,
construction, management or operation of the Mortgaged Property, and all right,
title and interest of Mortgagor therein and thereunder, including, without
limitation, the right, upon the happening of any default hereunder, to receive
and collect any sums payable to Mortgagor thereunder. The rights and interests
described in this paragraph shall hereinafter be called collectively, the
"Intangibles."
Mortgagor (i) does hereby pledge and assign to Mortgagee from
and after the Effective Date (including any period of redemption), primarily and
on a parity with the Real Property, and not secondarily, all the rents, issues
and profits of the Real Property and all rents, issues, profits, revenues,
royalties, bonuses, rights and benefits due, payable or accruing (including all
deposits of money as advance rent, for security or as xxxxxxx money or as down
payment for the purchase of all or any part of the Real Property) (the "Rents")
under any and all present and future leases, contracts or other credit or Loan
Documents relative to the ownership or occupancy of all or any portion of the
Mortgaged Property, (ii) except to the extent such a transfer or assignment is
not permitted by the terms thereof, does hereby transfer and assign to Mortgagee
all such leases, contracts and other agreements (including all Mortgagor's
rights under any contracts for the sale of any portion of the Mortgaged Property
and all revenues and royalties under any oil, gas and mineral leases relating to
the Real Property), and any and all right, title and interest of Mortgagor, its
successors and assigns in and under the leases, including, without limitation,
cash or securities deposited thereunder to secure the performance by the lessees
of their obligations thereunder and all rents, additional rents, revenues
(including, but not limited to, any payments made by tenants under the leases in
connection with the termination of any lease), all proceeds from the sale or
other disposition of the leases and the right to receive and apply the Rents to
the payment of the Secured Obligations, any and all lease guaranties, letters of
credit and any other credit support given by any guarantor in connection
3
with any of the leases, and all rights, powers, privileges, options and other
benefits of Mortgagor as lessor under the leases and beneficiary under all such
lease guaranties, letters of credit or other credit support (collectively, the
"Leases"); and (iii) does hereby pledge to Mortgagee any and all monies now or
hereafter held by Mortgagee, including, without limitation, any sums deposited
with Mortgagee or its designee pursuant to this Mortgage in respect of real
estate taxes, insurance premiums or any other matter (collectively, the
"Deposits"). The assignment of Leases, Rents and Deposits in this Mortgage is
intended to confirm unto Mortgagee all of the rights and protections afforded
thereto under and by virtue of Section 697.07, Florida Statutes, as amended, it
being further intended to operate as an absolute assignment, not merely the
passing of a security interest, to the fullest extent permissible by Florida
law. The collection of such rents, issues and profits or the exercise by
Mortgagee of its other remedies under this Mortgage or as provided by Florida
law, shall not cure or waive any default or notice of default hereunder or
invalidate any act done in response to such default or pursuant to such notice
of default, or otherwise invalidate, impair, nullify, waive or extinguish the
rights and protections afforded Mortgagee under Section 697.07, Florida
Statutes, as amended. Furthermore, and as provided by Section 697.07, Florida
Statutes, as amended, upon the occurrence of a default under this Mortgage,
Mortgagee may apply for a court order requiring Mortgagor to deposit all rents
in the court registry pursuant to Section 697.07, Florida Statutes, as amended.
Mortgagor hereby consents to entry of such an order upon the sworn ex parte
motion of Mortgagee that default under this Mortgage has occurred.
All of the property described above, and each item of property
therein described, not limited to but including the Land, the Property, the
Property Rights, the Equipment, the Fixtures, the Personal Property, the Real
Property, the Intangibles, the Rents, the Leases, the Deposits and all other
sums and amounts pledged hereunder or assigned or secured hereby, is herein
referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting
Mortgagee a mortgagee-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by Mortgagee. Nothing contained in this
Mortgage shall be construed as imposing on Mortgagee any of the obligations of
the lessor under any Lease of the Mortgaged Property in the absence of an
explicit assumption thereof by Mortgagee. In the exercise of the powers herein
granted Mortgagee, except as provided in the Loan Documents, no liability shall
be asserted or enforced against the Mortgagee, all such liability being
expressly waived and released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto
Mortgagee, its beneficiaries, successors and assigns, forever for the uses and
purposes herein set forth. Mortgagor hereby releases and waives all rights of
redemption under and by virtue of any of the laws, if any, of the State, and
Mortgagor hereby covenants, represents and warrants that, at the time of the
execution and delivery of these presents, Mortgagor is well seized of the
Mortgaged Property and has good and marketable fee simple title to the Mortgaged
Property with lawful authority to sell, assign, convey and mortgage the
Mortgaged Property, and that Mortgagor has, to the best of its knowledge,
obtained any and all consents and approvals necessary or required for the
granting and recording of this Mortgage (other than any immaterial consents or
approvals, the failure of which to obtain would not affect the validity or
enforceability of this Mortgage or the ability of
4
Mortgagee to realize upon its security provided herein) and that the title to
the Mortgaged Property is free and clear of all encumbrances, except those
listed on Exhibit B hereto (collectively, the "Permitted Encumbrances") and
that, except for the Permitted Encumbrances, Xxxxxxxxx will forever defend the
same against all claims in derogation of the foregoing.
THE FOLLOWING PROVISIONS SHALL ALSO CONSTITUTE
AN INTEGRAL PART OF THIS MORTGAGE:
SECTION 1. Payment of Taxes on the Mortgage. Without limiting
any of the provisions of the Loan Documents, Xxxxxxxxx agrees that, if the
government of the United States or any department, agency or bureau thereof or
if the State or any of its subdivisions having jurisdiction shall at any time
require documentary stamps to be affixed to this Mortgage or shall levy, assess,
or charge any tax, assessment or imposition (including, without limitation,
intangible tax) upon this Mortgage or the credit or indebtedness secured hereby
or the interest of any Mortgagee in the Mortgaged Property or upon the Mortgagee
by reason of or as holder of any of the foregoing then, Xxxxxxxxx shall pay for
such documentary stamps in the required amount and deliver them to Mortgagee or
pay (or reimburse Mortgagee for) such taxes, assessments or impositions.
Xxxxxxxxx agrees to exhibit to Mortgagee, at any time upon request, official
receipts showing payment of all taxes, assessments and charges which Xxxxxxxxx
is required or elects to pay under this paragraph. Xxxxxxxxx agrees to indemnify
Mortgagee against liability on account of such documentary stamps, taxes,
assessments or impositions, whether such liability arises before or after
payment of the Secured Obligations and regardless of whether this Mortgage shall
have been released.
SECTION 2. Leases Affecting the Real Property. Xxxxxxxxx
represents and warrants that there are no Leases affecting the Mortgaged
Property as of the date of recording of this Mortgage. Notwithstanding the
foregoing, all Leases shall provide that the lessee thereunder shall, without
any further documentation, attorn to Mortgagee as lessor if for any reason
Mortgagee becomes lessor thereunder, and, upon demand after an Event of Default
(as defined in Section 8 hereof), pay rent to Mortgagee, and Mortgagee shall not
be responsible under such Lease for matters arising prior to Mortgagee becoming
lessor thereunder pursuant to an explicit assumption thereof by Mortgagee;
provided, however, Mortgagee shall not become lessor or obligated as lessor
under any such Leases unless or until it shall elect in writing to do so. Upon
request of Mortgagee, Mortgagor will provide Mortgagee with copies of Leases
executed by Xxxxxxxxx for the Mortgaged Property. Any Leases, and all renewals,
replacements, extensions, and modifications thereof, and all rights of the
tenant thereunder, shall be subject and subordinate to this Mortgage, and to
each and every advance made or thereafter made hereunder or under the Loan
Documents and to all renewals, additions, supplements, modifications and
extensions thereof. Mortgagor covenants to (i) perform all the obligations of
the lessor under the Leases, (ii) enforce all obligations of the tenants under
the Leases, and (iii) comply with all material terms, conditions and provisions
of the Leases. Mortgagor represents and warrants that all such existing Leases
are, by their terms, subject and subordinate to this Mortgage and any renewals
or modifications thereto.
SECTION 3. Use of the Real Property.
5
(a) Mortgagor covenants that it shall not institute or
acquiesce in any proceeding to change the zoning classification of the Real
Property, nor shall Mortgagor change the use of the Mortgaged Property without
the prior written consent of Mortgagee, which consent may be withheld by
Mortgagee for any reason or no reason in such Mortgagee's sole and absolute
discretion, provided, however, that if Mortgagor is obligated to obtain a zoning
change, exception or variance to continue the operation of its business at the
Mortgaged Property (provided such business is the same business as that being
conducted by Mortgagor on the Effective Date), no such consent shall be
required.
(b) Mortgagor represents and warrants to Mortgagee that
(i) to the best of its knowledge, all permits and licenses required for the use
and operation of the Mortgaged Property have been obtained and are in full force
and effect, (ii) all utility services necessary for the use and operation of the
Mortgaged Property are in place, (iii) there is vehicular and pedestrian access
to the Mortgaged Property from public thoroughfares appropriate to the use of
the Mortgaged Property, (iv) the Mortgaged Property is free from loss or damage
due to the effect of casualty or condemnation, (v) all construction on the
Mortgaged Property has been paid for in full, (vi) Mortgagor has not received
notice that there is any action, suit or proceeding, judicial, administrative or
otherwise (including any condemnation or similar proceeding), pending or
threatened against, or affecting Mortgagor or the Mortgaged Property that has
not been disclosed to Mortgagee in writing or is not adequately covered by
insurance, as determined Mortgagee in its reasonable discretion, (vii) the
Secured Obligations are solely for the business purpose of Mortgagor and its
affiliates, and is not for personal, family, household, or agricultural
purposes, (viii) to the best knowledge of Mortgagor, all Improvements are
located within the boundaries of the Land and within any and all applicable
set-back lines imposed by applicable law, statute, ordinance, rule, regulation
and other requirements of governmental authorities and (ix) the Property is
assessed for real estate tax purposes as one or more wholly independent tax lot
or lots, separate from any adjoining land or improvements not constituting a
part of such lot or lots, and no other land or improvements are assessed and
taxed together with the Property or any portion thereof. Mortgagor shall not
commit or permit any waste to occur with respect to the Mortgaged Property.
Mortgagor further represents and warrants that the representation and warranties
of Mortgagor contained in this subparagraph shall be true so long as this
Mortgage shall be in effect.
(c) Mortgagor shall maintain the Mortgaged Property in
(i) a good and safe condition and repair, (ii) a manner consistent with
Mortgagor's maintenance of the Mortgaged Property to date, and (iii) in
continuous compliance with all applicable, present and future laws, statutes,
ordinances, rules, regulations and other requirements of governmental
authorities relating to all or any part of the Mortgaged Property.
(d) Mortgagee and its authorized agents and employees
shall have the right, at Mortgagee's option, to enter the Mortgaged Property
during business hours and upon not less than 48 hours prior written notice for
the purpose of inspecting the same, provided that Mortgagee shall use reasonable
efforts to minimize any disruption to Mortgagee's operations; provided further
that no notice shall be required in the event that an emergency and/or an Event
of Default hereunder then exists.
6
(e) Mortgagor will promptly pay when due all bills and
costs for labor, materials, and specifically fabricated materials incurred in
connection with the Mortgaged Property and never permit to be created or exist
in respect of the Mortgaged Property or any part thereof any other or additional
lien or security interest other than the liens or security interests hereof,
except for the Permitted Exceptions, provided, however, that Mortgagor shall not
be in violation of this provision in the event of non-payment due to a good
faith dispute and for which Xxxxxxxxx has posted or deposited additional
security in the form of a bond or other collateral.
SECTION 4. Indemnification. Mortgagor hereby irrevocably agrees
to indemnify and save harmless Mortgagee and its shareholders, officers,
directors, employees, successors, assigns, direct and indirect owners,
investment advisors, and persons and entities who may hold or acquire or will
have held a full or partial interest in any portion of the Secured Obligations,
including, but not limited to, custodians, trustees and other fiduciaries who
hold or have held a full or partial interest in any portion of the Secured
Obligations (collectively, the "Indemnified Parties"), from and against any and
all, loss or damage of whatsoever kind (whether or not caused in whole or in
part by the negligence of Mortgagee) on account of any matter or thing arising
out of (a) Xxxxxxxxx's interest in the Mortgaged Property, (b) any accident or
injury or death of persons or loss of or damage to or loss of the use of
property occurring on or about the Mortgaged Property or any part thereof or on
the adjoining sidewalks, curbs, adjacent streets or ways, (c) any failure on the
part of Mortgagor to perform or comply with any of the terms of this Mortgage,
(d) performance of any labor or services or the furnishing of any materials or
other property in respect of the Mortgaged Property or any part thereof made or
suffered to be made by or on behalf of Mortgagor, (e) fraud, gross negligence or
willful misconduct on the part of Mortgagor or any of its respective agents,
contractors, lessees, licensees or invitees, (f) any work in connection with any
alterations, changes, new construction or demolition of all or any portion of
the Mortgaged Property, (g) any Event of Default, (h) any and all lawful action
that may be taken by Mortgagee in connection with the enforcement of the
provisions of this Mortgage or any of the other Loan Documents, whether or not
suit is filed in connection with same, or in connection with Mortgagor and/or
any partner or joint venturer or shareholder thereof becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar
proceeding, (i) the enforcement by any Indemnified Party of the provisions of
this Section 4 and (j) any misrepresentation made by Mortgagor in this Mortgage
or any other document executed by Xxxxxxxxx in connection herewith or in the
Loan Agreement. All amounts payable to Mortgagee by reason of the application of
this Section 4, which are not paid within thirty (30) days after written request
therefor by Mortgagee shall bear interest at the Default Rate (as defined in the
Loan Agreement) from the date of receipt of such written notice until paid. In
case any action, suit or proceeding is brought against Mortgagor by reason of
any such occurrence, Xxxxxxxxx, upon request of Mortgagee, will, at Xxxxxxxxx's
expense, resist and defend such action, suit or proceeding or cause the same to
be resisted or defended by counsel designated by Xxxxxxxxx and approved by
Mortgagee. Notwithstanding anything herein to the contrary, Xxxxxxxxx's
indemnification of Mortgagee as set forth in this Section 4 shall not extend to
losses or damage suffered by Mortgagee and its partners, shareholders, officers,
directors and employees arising out of the gross negligence or intentional
misconduct of Mortgagee, or any of its respective agents, contractors, lessees,
licensees or invitees, and (ii) events occurring after Mortgagee has taken
possession of the Mortgaged Property, whether through foreclosure, deed-in-lieu
of foreclosure or any other such action (it being understood and agreed that the
indemnifications contained in this Section 4 in respect of events occurring
prior
7
to Mortgagee having taken possession of the Mortgaged Property shall survive the
satisfaction of this Mortgage and the repayment and performance of the Secured
Obligations).
SECTION 5. Insurance.
(a) Mortgagor shall keep the Mortgaged Property
continuously insured for the benefit of Mortgagee, to the extent of its full
replacement value, against loss or damage by fire, casualty and against such
other hazards (including, without limitation, coverage against loss or damage
by vandalism, malicious mischief, sprinkler leakage, flood and windstorm
including coverage against loss of rents) as Mortgagee may reasonably require
from time to time, and shall maintain comprehensive general public liability
property damage and workers' compensation insurance, with an insurance company
or companies qualified to insure property located in the State and satisfactory
to Mortgagee, and in such total amounts as Mortgagee may reasonably require
from time to time. Such insurance shall not provide for deductibles in excess
of [$10,000.00], and shall contain agreed amount endorsements, inflation guard
endorsements and replacement cost endorsements reasonably satisfactory to
Mortgagee. Mortgagee shall have the right to require Mortgagor to maintain
insurance coverage for acts of terrorism affecting the Real Property in such
amounts as are reasonably established by Mortgagee if (i) such coverage is
available for the Real Property and (ii) reasonably prudent institutional
lenders are then customarily requiring such coverage to be maintained in
respect of properties similar to the Real Property in the State of Florida. All
policies of insurance, including policies for any amounts carried in excess of
the required minimum and policies not specifically required by Mortgagee, shall
be in form reasonably satisfactory to Mortgagee, shall name Mortgagee as one of
the named insureds, shall be maintained in full force and effect, shall name
Mortgagee as the loss payee, shall include effective waivers by the insurer of
all rights of subrogation against any named insured if available at no
additional cost to Mortgagor (provided, that if such waivers are only
obtainable at an additional cost, Mortgagor shall promptly notify Mortgagee of
same and Mortgagor shall, at Mortgagee's request and expense, obtain same),
shall be endorsed with standard mortgage clause in favor of Mortgagee
(substantially equivalent to the California standard deed of trust endorsement)
not subject to contribution, and shall provide for at least thirty (30) days'
notice of cancellation, termination, modification, refusal to renew or
reduction to Mortgagee. If the insurance, or any part thereof, shall expire, or
be withdrawn, or become void or unsafe by Xxxxxxxxx's breach of any condition
thereof, or become void or unsafe by reason of the failure or impairment of the
capital of any company in which the insurance may then be carried, or if for
any reason in the reasonable opinion of Mortgagee the insurance shall be
unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the
Mortgaged Property satisfactory to Mortgagee. Mortgagor shall deliver
certificates of insurance to Mortgagee prior to the Effective Date evidencing
that such insurance is in full force and effect and the premiums thereon (the
"Insurance Premiums") have been paid in full (and upon request of Mortgagee,
copies of the underlying policies). All renewal policies, with Insurance
Premiums paid, shall be delivered to Mortgagee at least thirty (30) days before
expiration of the then existing policies. If Xxxxxxxxx fails to insure the
Mortgaged Property or to deliver such insurance polices as required by this
Mortgage, Mortgagee may, at its option, effect such insurance and pay the
Insurance Premiums therefor, and the amounts paid by Mortgagee with interest
from the time of payment by Mortgagee, at the Default Rate (as defined the Loan
Agreement) shall be immediately due on demand from Mortgagor to Mortgagee,
shall be added to and included in the indebtedness secured by this Mortgage.
8
(b) In the event of loss, Xxxxxxxxx will give immediate
notice thereof to Mortgagee, and Mortgagee shall have the right but not the
obligation, on behalf of Xxxxxxxxx, to adjust and compromise any claims under
such insurance policies, collect and receive the proceeds thereof and execute
and deliver all proofs of loss, receipts, vouchers and releases in connection
with such claims if not done promptly by Xxxxxxxxx. Provided there has not
occurred an Event of Default or an event which, with the passage of time or
giving of notice would constitute an Event of Default, then, Mortgagor shall
have the right to receive such proceeds of such insurance and to apply such
proceeds to the restoration of the Mortgaged Property. If such restoration of
the Mortgaged Property is not economically feasible as determined by the
Mortgagor, the insurance proceeds shall be applied to the indebtedness secured
hereby, with the excess, if any, paid to Mortgagee. If at the time such proceeds
are to be paid, there has been, and is continuing, an Event of Default hereunder
or an event has occurred which with the passage of time or giving of notice
would constitute an Event of Default, then, Mortgagee shall have the right to
retain and apply the proceeds of any such insurance, at its election, to
reduction of the indebtedness secured hereby, or to restoration or repair (which
Mortgagor shall perform) of the property damaged on such terms as Mortgagee may
specify, at Mortgagee's sole and absolute discretion. If Mortgagee elects to
retain and apply such proceeds to the reduction of the indebtedness secured
hereby, Mortgagee shall have the right in its sole and absolute discretion to
apply any such proceeds, in such order and in such amounts as Mortgagee may
elect, against: (i) any amounts payable by Mortgagor hereunder or under the
Secured Obligations, and/or (ii) accrued and unpaid interest under the Secured
Obligations, and/or (iii) the outstanding principal balance of the Secured
Obligations. Mortgagee may deduct from the proceeds of the insurance any
expenses, including, without limitation, reasonable attorneys' fees and
disbursements (to the extent permitted by law), incurred by it hereunder. No
application of insurance proceeds to the payment of the Secured Obligations or
expenses shall postpone any of the current installments of principal or interest
becoming due under the Secured Obligations until such Secured Obligations and
all interest and other sums due hereunder and thereunder have been paid in full.
(c) Such policies of insurance and all renewals thereof
are hereby assigned to Mortgagee as additional security for payment of the
indebtedness hereby secured. If Mortgagee becomes the owner of the Mortgaged
Property or any part thereof by foreclosure or otherwise, such policies,
including all right, title and interest of Mortgagor thereunder, shall become
the absolute property of Mortgagee. In furtherance of the foregoing, Mortgagor
shall not change the present use of any portion of the Mortgaged Property in any
manner or permit any condition to exist on the Mortgaged Property which would
permit an insurer to cancel any insurance policy or invalidate such policy in
whole or in part.
(d) Upon the occurrence and continuance beyond any
applicable cure period of an Event of Default, and upon notice from Mortgagee,
Mortgagor shall, notwithstanding anything to the contrary contained in Section
5(a) above, deposit with Mortgagee or a commercial lending institution
designated in such notice by Mortgagee (at Mortgagor's sole cost and expense) on
the first day of each month an amount equal to 1/12th of the aggregate annual
payments for the Insurance Premiums with respect to the insurance required under
this Section 5. If the amounts of any Insurance Premiums are not ascertainable
at the time any deposit is required to be made, the deposit shall be made on the
basis of 105% of the amount of the Insurance Premiums for the immediately prior
calendar year. Upon the amount of the
9
Insurance Premiums being fixed for the then current-year, Mortgagor shall, upon
notice from Mortgagee, deposit any deficiency with Mortgagee. If, on a date
thirty (30) days prior to the due date, there shall be insufficient funds on
deposit with Mortgagee for the payment of any Insurance Premiums, Mortgagor
shall, upon demand of Mortgagee, forthwith deposit the amount of such deficiency
with Mortgagee. The funds deposited with Mortgagee (or its designee) shall be
held by it without interest, and, unless prohibited by law, may be commingled
with other funds of Mortgagee, and shall be applied in payment of Insurance
Premiums when due to the extent that Mortgagor shall have deposited funds with
Mortgagee (or its designee) for such purpose and may, at the option of
Mortgagee, be retained and applied toward the payment of any or all of the
Secured Obligations and any accrued but unpaid interest and other charges
thereon, in such order of priority as Mortgagee shall determine, but no such
application shall be deemed to have been made by operation of law or otherwise
until actually made by Mortgagee. Mortgagor shall furnish Mortgagee with a bill
for the Insurance Premiums or such other documents necessary for its payment, if
available, at least thirty (30) days prior to the date it first becomes due.
Upon an assignment of this Mortgage, Mortgagee shall have the right to transfer
the then balance of such deposits in its possession to the assignee. Upon the
making of such transfer, Mortgagee shall be completely released from all
liability with respect to such deposits, and Mortgagor shall look solely to the
assignee with respect thereto. The provisions of the preceding sentence shall
apply to each and every assignment or transfer of such deposits to a new
assignee.
SECTION 6. Real Property Taxes.
(a) Mortgagor covenants and agrees to pay before due all
real property taxes, assessments, ground rent, if any, water and sewer rents,
fees and charges, levies, permit, inspection and license fees and other dues,
charges or impositions, including all charges and license fees for the use of
vaults, chutes and similar areas adjoining the Land, maintenance and similar
charges and charges for utility services, in each instance whether now or in the
future, directly or indirectly, levied, assessed or imposed on the Mortgaged
Property or Mortgagor and whether levied, assessed or imposed as excise,
privilege or property taxes (collectively, "Property Taxes").
(b) After the occurrence and upon the continuance beyond
any applicable cure period of one or more Events of Default, then upon notice
from Mortgagee, Mortgagor shall, notwithstanding anything to the contrary
contained in Section 6(a) above, deposit with Mortgagee or a commercial lending
institution designated in such notice by Mortgagee (at Mortgagor's sole cost and
expense) on the first day of each month an amount equal to 1/12th of the
aggregate annual payments for Property Taxes. In addition, upon notice from
Mortgagee, Mortgagor shall deposit with Mortgagee such sum of money which,
together with such monthly installments, shall be sufficient to pay all Property
Taxes at least thirty (30) days prior to the due date thereof. If the amounts of
any Property Taxes are not ascertainable at the time any deposit is required to
be made, the deposit shall be made on the basis of 105% of the amount of the
Property Taxes for the immediately prior tax year. Upon the amount of the
Property Taxes being fixed for the then current-year, Mortgagor shall, upon
notice from Mortgagee, deposit any deficiency with Mortgagee. If, on a date
thirty (30) days prior to the due date, there shall be insufficient funds on
deposit with Mortgagee (or its designee) for the payment of any Property Taxes,
Mortgagor shall, upon demand of Mortgagee, forthwith deposit
10
the amount of such deficiency with Mortgagee. The funds deposited with Mortgagee
(or its designee) shall be held by it without interest, and, unless prohibited
by law, may be commingled with other funds of Mortgagee, and provided that there
does not then exist an Event of Default in the performance of any of the
covenants and agreements of Mortgagor under this Mortgage, the Loan Documents or
(or under any instrument collateral thereto or to this Mortgage), shall be
applied in payment of Property Taxes when due to the extent that Mortgagor shall
have deposited funds with Mortgagee (or its designee) for such purpose. In the
event of any Event of Default and the continuance thereof by Mortgagor under
this Mortgage, or any Event of Default and the continuance thereof by Mortgagor
under any of the Loan Documents or any instrument collateral thereto or to this
Mortgage, the funds deposited (pursuant to this Section 6(b)) with Mortgagee (or
its designee) may, at the option of Mortgagee, be retained and applied toward
the payment of any or all of the Secured Obligations and any accrued but unpaid
interest and other charges thereon, in such order of priority as Mortgagee shall
determine, but no such application shall be deemed to have been made by
operation of law or otherwise until actually made by Mortgagee. Mortgagor shall
furnish Mortgagee with a bill for the Property Taxes or such other documents
necessary for its payment, if available, at least thirty (30) days prior to the
date it first becomes due. Upon an assignment of this Mortgage, Mortgagee shall
have the right to transfer the then balance of such deposits in its possession
to the assignee. Upon the making of such transfer, Mortgagee shall be completely
released from all liability with respect to such deposits, and Mortgagor shall
look solely to the assignee with respect thereto. The provisions of the
preceding sentence shall apply to each and every assignment or transfer of such
deposits to a new assignee.
(c) Notwithstanding the provisions of subparagraph (a) of
Section 6, Mortgagor shall have the right, in good faith, to contest by
appropriate legal proceedings, after notice to, but without cost or expense to,
Mortgagee, the amount or validity of any of the Property Taxes and to postpone
the payment of same, provided that: (i) such contest shall operate to prevent
the collection thereof or other realization thereon, the sale of the lien
thereof, and the sale or forfeiture of the Mortgaged Property or any part
thereof; (ii) such contest shall be promptly and diligently prosecuted by and at
the expense of Mortgagor; (iii) Mortgagee shall not thereby suffer any civil, or
be subjected to any criminal, penalties or sanctions; (iv) Mortgagor shall
promptly, and in any event on demand, pay such contested Property Taxes if at
any time all or any part of the Mortgaged Property shall be in danger of being
foreclosed, sold, forfeited, or otherwise lost or if such contest shall be
discontinued; and (v) Mortgagor shall properly protect and hold harmless
Mortgagee against any liability and claims arising out of the postponement of
the payment of such Property Taxes;
(d) Xxxxxxxxx shall not claim or demand or be entitled to
any credit or credits on account of any of the sums secured hereby by reason of
the Property Taxes assessed against all or any part of the Mortgaged Property
or, for any payments made on account thereof. No deductions shall be made or
claimed from the taxable value of all or any part of the Mortgaged Property by
reason of this Mortgage.
SECTION 7. Condemnation Awards.
(a) Mortgagor shall give notice to Mortgagee upon
Xxxxxxxxx's receipt of notice of the commencement of any action or proceeding to
take all or any part of the
11
Mortgaged Property by exercise of the right of condemnation or eminent domain.
Mortgagor shall deliver to Mortgagee in a timely fashion upon request copies of
all filings, instruments, records and documents related to any such condemnation
action or proceeding.
(b) Provided there has not occurred and is continuing an
Event of Default or an event which, with the passage of time or the giving of
notice would constitute an Event of Default hereunder then, the award for
damages, direct or consequential, in connection with any condemnation or other
taking of the Mortgaged Property or part thereof, or for conveyance in lieu of
condemnation, shall be paid to Mortgagor and used in the restoration of the
Mortgaged Property.
(c) If an Event of Default has occurred and is
continuing, or an event which, with the passage of time or the giving of notice
would constitute an Event of Default hereunder, Mortgagee, at Mortgagee's
option, may retain and apply the award toward payment of the Secured
Obligations, and the interest accrued thereon (whether or not due and payable)
in such order of priority as Mortgagee shall elect or shall be paid over in
whole or in part to pay or reimburse Mortgagor for the cost of restoring or
reconstructing the Mortgaged Property in a manner and on conditions satisfactory
to Mortgagee; provided, however that to the extent that the award received by
Mortgagee shall exceed the amount required to satisfy in full the then total
amount of the Secured Obligations, and the interest and other charges accrued
thereon, Mortgagee shall pay over to Mortgagor the amount of such excess. In no
event shall Mortgagee be required to satisfy this Mortgage until the Secured
Obligations, and the interest and other charges accrued thereon are fully paid
and Mortgagee shall not be required to release from the lien of this Mortgage
any portion of the Mortgaged Property so taken until Mortgagee receives the
award for the portion so taken.
(d) The application of the award toward payment of the
Secured Obligations and the interest and other charges accrued thereon shall not
be deemed a waiver by Mortgagee of its right to receive payment and performance
of the balance of the Secured Obligations, and the interest and other charges
accrued thereon in accordance with the provisions of the Loan Documents.
Mortgagee shall have the right, but shall be under no obligation, to question
the amount of the award, and Mortgagee may accept same without prejudice to the
rights that Mortgagee may have to question such amount. In any such condemnation
or eminent domain action or proceeding Mortgagee may be represented by attorneys
selected by Mortgagee, and all sums paid by Mortgagee in connection with such
action or proceeding (including, without limitation, attorneys' fees, court
costs and disbursements to the extent permitted by law) shall, on demand, be
immediately due from Mortgagor to Mortgagee and the same shall be secured by
this Mortgage.
(e) Notwithstanding any taking by condemnation or eminent
domain, closing of, or alteration of the grade of, any street or other injury to
or decrease in value of the Mortgaged Property by any public or quasi-public
authority or corporation, the unpaid principal portion of the Secured
Obligations shall continue to bear interest at the rate payable pursuant to the
applicable Loan Documents until the award shall have been actually received by
Mortgagee, and any reduction in the Secured Obligations, or the interest thereon
resulting from the application by Mortgagee of the award shall be deemed to take
effect only on the date of such receipt.
12
SECTION 8. Events of Default. The occurrence of any one or
more of the following shall constitute an event of default hereunder (an "Event
of Default"):
(a) Failure of Mortgagor to pay any monetary payments
required to be paid by Mortgagor under this Mortgage including, without
limitation, insurance premiums, taxes, sewer rents, and reserve fund
requirements when due and payable.
(b) Failure of Mortgagor to perform when due its
obligations under this Mortgage.
(c) Failure of Mortgagor to pay any amounts required to
be paid by Xxxxxxxxx under the Loan Documents when due and payable.
(d) An "Event of Default" as defined in the Loan
Agreement shall have occurred and is continuing.
(e) Occurrence of an event of default under any future
mortgages or deeds of trust made by Xxxxxxxxx (or its successors or assigns) for
the benefit of Mortgagee or its successors or assigns.
(f) Any representation or warranty made by Mortgagor in
this Mortgage proves to be incorrect in any material adverse respect as and when
made, and such breach of representation or warranty has a material adverse
consequence to Mortgagee (or Mortgagee's lien on the Mortgaged Property or
Mortgagee's ability to enforce its rights and remedies contained herein).
(g) The filing of record by or on behalf of Xxxxxxxxx of
a notice under Section 697.04 of the Florida Statutes purporting to set a
maximum limit on future advances secured by this Mortgage without the prior
written consent of Mortgagee.
(h) If Mortgagor (i) fails to discharge, bond over, or
otherwise cause to be released any mechanic's or materialman's lien in excess of
$50,000 encumbering or otherwise affecting the Mortgaged Property on or prior to
the date that is thirty (30) days after such lien first encumbers or otherwise
affects the Mortgaged Property, (ii) fails to discharge, bond over, or otherwise
cause to be released any Federal tax lien in excess of $50,000 encumbering or
otherwise affecting the Mortgaged Property on or prior to the date that is
thirty (30) days after such lien first encumbers or otherwise affects the
Mortgaged Property, (iii) fails to timely deliver the certificate required to be
delivered by Mortgagor pursuant to Section 34 of this Mortgage or (iv) fails to
comply with its obligations under Sections 5, 6 or 31 of this Mortgage.
SECTION 9. INTENTIONALLY OMITTED
SECTION 10. Remedies. Upon the happening of any Event of Default,
the Secured Obligations, and the entire unpaid balance of the principal of the
Obligations, the accrued interest and all other sums secured by this Mortgage,
and by the Future Mortgages shall become immediately due and payable, without
notice or demand, and upon such Event of Default, Mortgagee may exercise any or
all of the following remedies:
13
(a) Foreclosure. Mortgagee may institute an action of
mortgage foreclosure against the Mortgaged Property, or take such other action
at law or in equity for the enforcement of this Mortgage and realization on the
mortgage security or any other security herein or elsewhere provided for as the
law may allow, and may proceed therein to final judgment and execution for the
entire unpaid balance of the Secured Obligations, the principal debt, the
accrued interest and all other sums due by Xxxxxxxxx in accordance with the
provisions of this Mortgage, including all sums which may have been loaned by
Mortgagee to Mortgagor after Effective Date, and all sums which may have been
advanced by Mortgagee for taxes, water or sewer rents, charges or claims,
payments on prior liens, insurance or repairs to the Mortgaged Property, all
costs of suit, reasonable attorneys' fees and other expenses in connection
therewith, together with interest at a rate equal to the Default Rate (as
defined in the Loan Agreement) on any judgment obtained by Mortgagee from and
after the date of any Sheriff's sale until actual payment is made by the Sheriff
of the full amount due Mortgagee.
(b) Possession. Mortgagee shall, at its option, have the
right, acting through its attorneys or a receiver, with process of law, to enter
upon and take possession of the Mortgaged Property, expel and remove any
persons, goods, or chattels occupying or upon the same, to collect or receive
all the Rents (which term shall also include sums payable for use and
occupancy), and to manage and control the same, and to lease the same or any
part thereof, from time to time, and, after deducting all reasonable attorneys'
fees and expenses, and all reasonable expenses incurred in the protection, care,
maintenance, management and operation of the Mortgaged Property, distribute and
apply the remaining net income in such order and amounts as Mortgagee, in
Mortgagee's sole discretion, may elect: the payment of taxes, water and sewer
rents, charges and claims, insurance premiums and all other carrying charges,
and to the maintenance, repair or restoration of the Mortgaged Property, and on
account and in reduction of the principal or interest, or both, hereby secured,
or in accordance with any deficiency decree entered in any foreclosure
proceedings. Mortgagor hereby assigns to Mortgagee all rentals due and to become
due under any lease or leases or rights to use and occupy the Mortgaged Property
hereafter created, as well as all rights and remedies provided in such lease or
leases or at law or in equity for the collection of the rentals.
(c) Appointment of Receiver. The court in which any
proceeding is pending for the purpose of foreclosure of this Mortgage may, at
once or at any time thereafter, either before or after sale, without notice and
without requiring bond, and without regard to the solvency or insolvency of any
person liable for payment of the Secured Obligations, and without regard to the
then value of the Mortgaged Property or the occupancy thereof as a homestead,
appoint a receiver (the provisions for the appointment of a receiver and
assignment of rents being an express condition upon which the Secured
Obligations hereby secured were made) for the benefit of Mortgagee, with power
to collect the Rents, due and to become due, during such foreclosure suit and
the full statutory period of redemption notwithstanding any redemption. The
receiver, out of the Rents when collected, may pay costs incurred in the
management and operation of the Mortgaged Property, prior and subordinate liens,
if any, and taxes, assessments, water and other utilities and insurance, then
due or thereafter accruing, and may make and pay for any necessary repairs to
the Real Property, and may pay all or any part of the Secured Obligations or
other sums secured hereby or any deficiency decree entered in such foreclosure
proceedings. Upon or at any time after the filing of a suit to foreclose this
Mortgage, the court in which such suit is filed shall have full power to enter
an order placing Mortgagee in possession
14
of the Real Property with the same power granted to a receiver pursuant to this
subparagraph and with all other rights and privileges of a mortgagee-in
possession under applicable law.
SECTION 11. Application of the Rents or Proceeds from Foreclosure
or Sale. In any foreclosure of this Mortgage by judicial action, or any sale of
the Mortgaged Property by advertisement, in addition to any of the terms and
provisions of the Loan Documents, there shall be allowed (and included in the
decree for sale in the event of a foreclosure by judicial action) to be paid out
of the Rents or the proceeds of such foreclosure proceeding and/or sale:
(a) Obligations Secured. All of the Secured
Obligations secured hereby and other sums secured hereby which then remain
unpaid; and
(b) Other Advances. All other items advanced or paid by
Mortgagee pursuant to this Mortgage; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable attorneys' and paralegals' fees and expenses, appraiser's fees,
environmental audit, testing and survey fees, advertising costs, filing fees and
transfer taxes, notice expenses, expenditures for documentary and expert
evidence, stenographer's charges, publication costs, and costs (which may be
estimated as to items to be expended after entry of the decree) of procuring all
abstracts of title, title searches and examinations, title guarantees, title
insurance policies, Torrens certificates and similar data with respect to title
which Mortgagee in the reasonable exercise of its judgment may deem necessary.
All such expenses shall become additional obligations secured hereby when paid
or incurred by Mortgagee in connection with any proceedings, including but not
limited to probate and bankruptcy proceedings, to which any Mortgagee shall be a
party, either as plaintiff, claimant or defendant, by reason of this Mortgage or
any indebtedness hereby secured or in connection with the preparations for the
commencement of any suit for the foreclosure, whether or not actually commenced,
or sale by advertisement. The proceeds of any sale (whether through a
foreclosure proceeding or Mortgagee's exercise of the power of sale) shall be
distributed and applied in such order and to such of the obligations secured
hereby as Mortgagee may determine in its sole discretion.
SECTION 12. Cumulative Remedies; Delay or Omission Not a Waiver.
Each remedy or right of Mortgagee shall not be exclusive of but shall be in
addition to every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or failure to exercise any remedy or right
accruing on the occurrence or existence of any Event of Default shall impair any
such remedy or right or be construed to be a waiver of any such Event of Default
or acquiescence therein, nor shall it affect any subsequent Event of Default of
the same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Mortgagee.
SECTION 13. No Merger. In the event of a foreclosure of this
Mortgage or any other mortgage or trust deed securing the payment and
performance of the Secured Obligations, the Secured Obligations shall, at
Mortgagee's option, not be merged into any decree of foreclosure entered by the
court, and Mortgagee may concurrently or subsequently seek to foreclose one or
more mortgages or deeds of trust which also secure the Secured Obligations.
15
SECTION 14. Notices. All notices and other communications
provided to any party hereto under this Mortgage shall be in writing and shall
be given to the manner, within the time periods and to the addressees identified
in the Loan Documents.
SECTION 15. Extension of Payments. Xxxxxxxxx agrees that, without
affecting the liability of any person for payment of the Secured Obligations or
affecting the lien of this Mortgage upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may at
any time and from time to time, on request of Mortgagor, without notice to any
person liable for payment of any Secured Obligations, but otherwise subject to
the provisions of the Loan Documents, extend the time, or agree to alter or
amend the terms of payment of such Secured Obligations. Xxxxxxxxx further agrees
that any part of the security herein described may be released with or without
consideration without affecting the remainder of the Secured Obligations or the
remainder of the security.
SECTION 16. Governing Law. Xxxxxxxxx agrees that this Mortgage is
to be construed, governed and enforced in accordance with the laws of the State.
SECTION 17. Satisfaction of Mortgage and Release of Security
Interest. Upon the payment in full of all unpaid principal of, and all unpaid
accrued interest and other amounts, if any, on all amounts due and owing under
the other Loan Documents at the time of such payment, (i) a satisfaction of
mortgage or reconveyance of the Mortgaged Property shall promptly be provided by
Mortgagee to Mortgagor, (ii) the security interest created by this Mortgage
shall automatically terminate and (iii) Mortgagee shall be deemed to have
authorized Mortgagee to file a UCC termination in respect of the UCC fixture
filing filed by Mortgagee in connection with this Mortgage. Notwithstanding the
foregoing, the Secured Obligations together with this Mortgage and the security
interest granted hereby, shall be deemed to continue if Mortgagor enters into
any bankruptcy or similar proceeding at a time when any amount paid to Mortgagee
could be ordered to be repaid as a preference or pursuant to a similar theory,
and shall continue until it is finally determined that no such repayment can be
ordered.
SECTION 18. Successors and Assigns Included in Parties. This
Mortgage shall be binding upon Xxxxxxxxx and upon the successors, assigns and
vendees of Mortgagor and shall inure to the benefit of Mortgagee and Mortgagee's
respective successors and assigns; all references herein to Mortgagor and to
Mortgagee shall be deemed to include their respective successors and assigns.
Xxxxxxxxx's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for Mortgagor. Wherever used,
the singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall be applicable to all genders.
SECTION 19. Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws. Xxxxxxxxx agrees, to the full extent permitted by law, that
at all times following an Event of Default, neither Xxxxxxxxx nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, homestead or extension laws now
or hereafter in force, in order to prevent or hinder the enforcement or
foreclosure of this Mortgage or the absolute sale of the Mortgaged Property or
the final and absolute putting into possession thereof, immediately after such
sale, of the purchaser thereat;
16
and Xxxxxxxxx, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws and any and all right to have the assets comprising the Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Mortgagor hereby irrevocably waives any and all statutory or other rights
of redemption from sale under any order or decree of foreclosure of this
Mortgage, on its own behalf and on behalf of each and every person acquiring any
interest in or title to the Mortgaged Property subsequent to the Effective Date.
Mortgagor further waives, to the full extent it may lawfully do so, all
statutory or other rights in its favor, limiting concurrent actions to foreclose
this Mortgage and exercising other rights with respect to the Secured
Obligations, including, without limitation, any right vested in Mortgagor or
anyone claiming through or under Mortgagor or any of their affiliates to limit
the right of Mortgagee to pursue or commence concurrent actions against
Mortgagor or anyone claiming through or under Mortgagor or any of their
affiliates or any property owned by any one or more of them.
SECTION 20. Interpretation with Other Documents. Notwithstanding
anything in this Mortgage to the contrary, in the event of a conflict or
inconsistency between this Mortgage and the Loan Documents, the provisions of
the Loan Documents shall govern.
SECTION 21. Future Advances; Maximum Amount Secured. (a) Pursuant
to Section 697.04, Florida Statutes, this Mortgage shall secure not only the
existing indebtedness evidenced by the Loan Documents, but also such future
advances as may be made by Mortgagee to Mortgagor, in accordance with the terms
of the Loan Documents and this Mortgage, whether or not such advances are
obligatory or are to be made at the option of Mortgagee, or otherwise, as are
made within twenty (20) years from the Effective Date, 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 Thirteen Million Dollars ($13,000,000), plus interest thereon, and any
disbursements made for the payment of taxes, levies, or insurance on the
Property, with interest on such disbursements. Any such future 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 Loan Documents or any other
notes secured by this Mortgage. All covenants and agreements contained in this
Mortgage shall be applicable to all further advances made by Mortgagee to
Mortgagor under this future advance clause. Mortgagor hereby expressly waives
and relinquishes any right granted under Section 697.04, Florida Statutes, or
otherwise to limit the amount of indebtedness that may be outstanding at any
time during the term of this Mortgage. Mortgagor further covenants not to file
or record any notice limiting the maximum principal of amount that may be
secured by this Mortgage, and agrees that any such notice, if filed or recorded,
shall be null and void and no effect.
(b) Xxxxxxxxx acknowledges and agrees that Mortgagee's
recourse to the Mortgaged Property pursuant to this Mortgage for the recovery of
the principal amount of the Obligations is limited to [$6,000,000.00] [amount to
be agreed upon based on some amount over appraised value] (exclusive of future
advances, as set forth in Section 21(a) above), provided that the foregoing
limitation shall apply only to the lien upon the Mortgaged Property created by
this Mortgage and it shall not in any manner limit, affect or impair any grant
of a security interest or
17
other right in favor of Mortgagee under the provisions of the Loan Documents or
under any other security instrument at any time executed by Xxxxxxxxx.
SECTION 22. Invalid Provisions to Affect No Others. Wherever
possible, each provision of this Mortgage shall be interpreted in such manner as
to be effective and valid under applicable law, but in the event that any of the
covenants, agreements, terms or provisions contained in this Mortgage shall be
invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein or in the Loan
Documents shall not be in any way affected, prejudiced or disturbed thereby. In
the event that the application of any of the covenants, agreements, terms or
provisions of this Mortgage is held to be invalid, illegal or unenforceable,
those covenants, agreements, terms and provisions shall not be in any way
affected, prejudiced or disturbed when otherwise applied.
SECTION 23. Changes. Neither this Mortgage nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Mortgagor and Mortgagee
relating to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
SECTION 24. Consent to Jurisdiction; Waiver of Immunities; Waiver
of Jury Trial. Xxxxxxxxx hereby acknowledges and agrees that:
(a) It irrevocably submits to the jurisdiction of any
state or federal court sitting in the State, in any action or proceeding arising
out of or relating to this Mortgage, and the Mortgagor hereby irrevocably agrees
that all claims in respect of such action or proceeding may be heard and
determined in such State's state or federal court. Mortgagor hereby irrevocably
waives, to the fullest extent, it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. Mortgagor
hereby irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to Mortgagor at
its address provided in Section 14 of this Mortgage along with a copy to the
addressees provided in such Section (if any). The Mortgagor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this Section shall affect the right of
Mortgagee to serve legal process in any other manner permitted by law or affect
the right of Mortgagee to bring any action or proceeding against Mortgagor or
its property in the courts of any other jurisdiction.
(c) To the extent that Mortgagor has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, Mortgagor hereby irrevocably waives such immunity in respect of
its obligations under this Mortgage.
(d) XXXXXXXXX XXXXXX XXXXXX, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
18
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO ANY PORTION OF THE SECURED OBLIGATIONS, ANY
APPLICATION FOR THE SECURED OBLIGATIONS, THIS MORTGAGE, THE LOAN DOCUMENTS OR
ANY ACTS OR OMISSIONS OF MORTGAGOR, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS
IN CONNECTION THEREWITH.
SECTION 25. Time is of the Essence. Time is of the essence with
respect to the provisions of this Mortgage.
SECTION 26. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Mortgage. In the
event an ambiguity or question of intent or interpretation arises, this Mortgage
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Mortgage.
SECTION 27. Mortgagee's Right to Appear. Mortgagee shall have the
right to appear in and defend any legal proceeding brought regarding the
Mortgaged Property and to bring any legal proceeding, in the name and on behalf
of Mortgagor or in Mortgagee's name, that Mortgagee, in its sole discretion,
determines should be brought to protect Mortgagee's interest in the Mortgaged
Property.
SECTION 28. Savings Clause. Any provision of this Mortgage, which
is prohibited or unenforceable in any jurisdiction, will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 29. Compliance with Mortgage Foreclosure Law. In the
event that any provision in this Mortgage shall be inconsistent with any
provision of the statutes or common law of the State of Florida governing the
foreclosure of this Mortgage (collectively, the "Foreclosure Laws"), the
provisions of the Foreclosure Laws shall take precedence over the provisions of
this Mortgage, but shall not invalidate or render unenforceable any other
provision of this Mortgage that can be construed in a manner consistent with the
Foreclosure Laws.
SECTION 30. No Other Financing or Liens. Without the prior
written consent of Mortgagee, which Mortgagee can grant or withhold in its sole
and absolute discretion, and except for Permitted Encumbrances, Mortgagor shall
not create or cause or permit to exist any lien on, or security interest in the
Mortgaged Property or any part thereof (whether or not such lien or security
interest is subordinate to the lien of this Mortgage), including any furniture,
fixtures, appliances, machinery, equipment, or other items of personal property
which are intended to be or become part of the Mortgaged Property, or securing
repayment of monies paid to or for the benefit of Mortgagor.
SECTION 31. No Transfer; Due on Sale. Without the prior written
consent of Mortgagee, which Mortgagee can grant or withhold in its sole and
absolute discretion, Mortgagor will abstain from and will not directly or
indirectly cause or permit any transfer of
19
title to, beneficial interest in, or any estate or other interest in the
Property or any part thereof, or any interest in Mortgagor, voluntarily or by
operation of law, whether by sale, exchange, conveyance, merger, division,
consolidation or otherwise. Any consent given by Mortgagee hereunder shall
pertain only to the proposed transfer for which the consent was requested and
shall not obligate Mortgagee to approve any further transfers. If Xxxxxxxxx
enters into a contract to transfer the Property or transfers the Property, or
any part thereof or interest therein except as expressly permitted under this
Mortgage, then Mortgagee shall have the right, at its option, at any time
thereafter to declare the Secured Obligations and the entire principal then
outstanding under the Loan Documents (if not then due and payable), and all
accrued and unpaid interest thereon, and all other accrued sums and charges
under the Loan Documents immediately due and payable. No waiver of this right or
delay in the exercise thereof shall operate as a waiver thereof unless Mortgagee
shall have executed and delivered to Mortgagor a written waiver of such right.
SECTION 32. Corporate Authority; Maintenance of Corporate
Existence. Mortgagor represents and warrants that it has taken all necessary and
proper action, which has not been modified or revoked, to enter into this
Mortgage and that the execution and delivery of this Mortgage by the individual
who signed this Mortgage on behalf of Xxxxxxxxx has been duly authorized and is
sufficient action to constitute this Mortgage as a valid, binding and
enforceable obligation of Mortgagor. Mortgagor shall continuously maintain its
existence and its rights to do business in the State.
SECTION 33. Recording, Filing and Other Fees. Mortgagor shall pay
all recording and filing fees, all recording taxes, and all other costs and
expenses in connection with the preparation, execution and recordation and other
manner of perfection of this Mortgage, and Xxxxxxxxx shall reimburse Mortgagee
on demand for all costs and expenses of any kind incurred by Mortgagee in
connection therewith (including, without limitation, reasonable attorneys' fees
and disbursements, to the extent permitted by law). Mortgagor will, at any time
on request of Mortgagee, execute or cause to be executed financing statements,
continuation statements, security agreements, or the like, in respect of any of
the Equipment and the Fixtures, and Mortgagor hereby irrevocably appoints
Mortgagee as its attorney-in-fact for such purposes. Mortgagor shall pay all
filing fees, including fees for filing continuation statements, in connection
with such financing statements.
SECTION 34. Certificate of Mortgagor. Mortgagor, upon request of
Mortgagee, shall certify to Mortgagee or to any proposed assignee of or
participant in this Mortgage, by an instrument in form reasonably satisfactory
to Mortgagee, duly acknowledged, (a) that this Mortgage is unmodified and in
full force and effect, or if there has been any modification, that the same is
in full force and effect as so modified, and identifying any such modification,
(b) the amount of the Secured Obligations and interest and other charges then
owing, (c) the date to which any interest on the Secured Obligations has been
paid, and (d) whether any offsets or defenses exist against payment of the
Secured Obligations or performance of any of the covenants and agreements of
Mortgagor under the Loan Documents in favor of Mortgagor or against the
enforcement of any of the terms, covenants and conditions of this Mortgage, the
Loan Documents, and, if so, specifying the same, (e) whether or not Mortgagee
has observed and performed all of the terms, covenants and conditions on the
Mortgagee's part to be observed and performed under this Mortgage, the Loan
Documents, and (f) any other factual matter relating to this Mortgage, the Loan
Documents, as reasonably requested in writing
20
by Mortgagee (provided, that such factual matters do not increase any
obligations nor decrease rights of Mortgagor under this Mortgage, the Loan
Documents, nor require Mortgagor to take any action other than to address or
answer the factual matter raised), ten (10) days following such request.
Mortgagee and any actual or proposed assignee of or participant in this Mortgage
shall have the right to rely on such certification.
SECTION 35. Further Assurances. Mortgagor shall execute,
acknowledge and deliver to Mortgagee any documents and instruments which
Mortgagee may reasonably request from time to time for the better assuring,
conveying, assigning, transferring, confirming or perfecting of Mortgagee's
security and rights under this Mortgage, provided however, that in no event
shall any such documents or instruments (i) grant Mortgagee rights or security
interests greater than those provided herein or in the Loan Documents, or (ii)
impose additional obligations or burdens on Mortgagor greater than the
obligations of Mortgagor as set forth herein or in the Loan Documents.
SECTION 36. Environmental. To the extent required by any
appropriate governmental agency with jurisdiction over the Real Property, at
Mortgagor's sole cost and expense, Mortgagor shall remove any Hazardous Material
(as hereinafter defined) existing on or under the Real Property, the groundwater
underlying the Real Property or any portion thereof, in compliance with the
requirements of any appropriate governmental agency with jurisdiction over the
Real Property and all applicable laws; and if Mortgagor does not commence and
thereafter diligently perform the removal of such Hazardous Materials from the
Real Property in compliance with the requirements of such governmental agency
and all applicable laws in a time period required by such governmental agency,
Mortgagee may, in its sole discretion, have the same removed and Mortgagor shall
reimburse Mortgagee within 30 days after receipt of Mortgagee's demand for
payment; provided that Mortgagee shall not be entitled to remove such Hazardous
Materials during any period in which Mortgagor is reasonably and diligently
contesting the requirement to remove such Hazardous Materials in an appropriate
judicial or administrative proceeding. Xxxxxxxxx agrees to notify Mortgagee
promptly if Xxxxxxxxx has knowledge of any lien, action or notice relating to
Hazardous Materials, served on Mortgagor or imposed against the Real Property,
as the case may be, by a governmental agency. Xxxxxxxxx agrees to defend,
protect, indemnify and hold Mortgagee harmless from and against all claims,
demand, damages, losses, liens, liabilities, penalties, fines, lawsuits and
other proceedings and all costs and expenses (including, without limitation, the
cost of any required cleanup of such Hazardous Materials and all reasonable
attorneys' fees and expenses incurred by Mortgagee in connection therewith)
incurred by Mortgagee and arising directly or indirectly from or out if, or in
any way connected with the presence, suspected presence, release or suspected
release of any Hazardous Materials in or into the air, soil, ground water,
surface water or improvements at, on, about, under or within the Real Property
or any portion thereof, or elsewhere in connection with the transportation of
Hazardous Materials to or from the Real Property, unless any such claims,
demands, damages, losses, liens, liabilities, penalties, fines, lawsuits and
other proceedings and all costs and expenses result (i) from the acts of
Mortgagee, (ii) from events occurring after Mortgagee takes possession of the
Mortgaged Property whether through foreclosure, deed in lieu of foreclosure or
(iii) from the gross negligence or willful misconduct of Mortgagee. Mortgagor
acknowledges that, between Mortgagor and Mortgagee, Mortgagor will be
responsible for all costs and expenses (unless due to Mortgagee's gross
negligence or willful misconduct) relating to the cleanup of Hazardous Materials
from the Real Property or from any other properties which
21
become contaminated with Hazardous Materials as a result of activities on or the
contamination of the Real Property or from the transportation of Hazardous
Materials from the Real Property.
"Hazardous Materials" means any flammable explosives,
radioactive materials, hazardous wasters, hazardous materials, hazardous
wasters, hazardous materials, hazardous or toxic substances, or related
materials as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 96.01 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 18.01 et
seq.) the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section
69.01 et seq.), and in the regulations adopted and publications promulgated
pursuant thereto, and all asbestos (friable or non-friable), petroleum
derivatives, polychlorinated biphenyls and substances defined as hazardous
materials under any federal, state or local laws, ordinances, codes, rules,
orders, regulations or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
thereof. Hazardous Materials shall not be deemed to include ordinary and typical
cleaning materials and solvents and similar materials generally used at the Real
Property to maintain cleanliness thereat and which are not (a) used in
unreasonably large amounts, (b) used negligently or (c) used, disposed of, or
stored in violation of any applicable laws.
SECTION 37. Compliance with Permitted Encumbrances. Mortgagor
shall comply with the terms of all agreements governing the Permitted
Encumbrances and Mortgagor shall, within seven (7) business days after receipt
of same, deliver to Mortgagee copies of all notices received by Mortgagor
relating to defaults by Mortgagor under any of the Permitted Encumbrances, to
the extent that if such default were not cured and a judgment were rendered in
the holder's favor, and the holder enforced such judgment, the enforcement
thereof could materially impair the Mortgaged Property, Mortgagee's lien on the
Mortgaged Property and/or Mortgagor's ability to comply with its obligations
hereunder. Mortgagee shall have the right, but not the obligation, to cure any
such defaults if the same are not cured within thirty (30) business days after
Mortgagee's receipt of notice thereof, provided, however, if such default is not
reasonably capable of being cured within thirty (30) days, and if Mortgagor (a)
initiates corrective action within said period, and (b) diligently, continually,
and in good faith works to effect a cure as soon as possible, then Mortgagor
shall have such additional time (not to exceed one hundred eighty (180) days in
the aggregate) as is reasonably necessary to cure such default prior to exercise
of any remedies by Mortgagee. Any sums expended by Mortgagee in connection
therewith shall be reimbursed by Xxxxxxxxx on demand and shall, until payment by
Xxxxxxxxx is received by Mortgagee, be secured by this Mortgage.
SECTION 38. Security Agreement.
(a) This Mortgage constitutes a security agreement within
the meaning of the Uniform Commercial Code as enacted this date in the State of
Florida (the "Uniform Commercial Code"). Mortgagor hereby grants to Mortgagee a
security interest in all that property included in the Property which might
otherwise be deemed "personal property", including, but not limited to, all
fixtures, building equipment, and building machinery, and all other property
used or useable in connection with the Property, whether now owned or hereafter
acquired by Xxxxxxxxx, and all substitutions, accretions and component parts,
replacements thereof, and additions thereto and all cash and non-cash proceeds
thereof.
22
(b) Mortgagor shall execute, deliver, file and refile any
financing statements, continuation statements, or other security agreements
Mortgagee may require from time to time to confirm the lien of this Mortgage
with respect to such property. Without limiting the foregoing, Xxxxxxxxx hereby
irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to execute,
deliver and file such instruments for and on behalf of Mortgagor. Mortgagor
shall pay, or at Mortgagee's election shall reimburse Mortgagee for, all filing
fees in connection therewith. Mortgagor shall not change its principal place of
business without giving Mortgagee at least thirty (30) days prior written notice
thereof, which notice shall be accompanied by new financing statements executed
by Xxxxxxxxx in the same form as the financing statements delivered to Mortgagee
on the Effective Date hereof except for the change of address.
(c) Upon any Event of Default hereunder or under the
Note, Mortgagee shall have, in addition to any other rights and remedies
hereunder or under the Note, all of the rights and remedies granted to a secured
party under the Uniform Commercial Code with respect to such personal property.
To the extent permitted by law, Xxxxxxxxx and Mortgagee agree that the items set
forth on the financing statements shall be treated as part of the real estate
and improvements regardless of the fact that such items are set forth in the
financing statements. Such items are contained in the financing statements to
create a security interest in favor of Mortgagee in the event such items are
determined to be personal property under the law.
SECTION 39. Transfer of Loan. Mortgagee may, at any time, sell,
transfer or assign this Mortgage, the Loan Documents, or any of its interests
therein, and any or all servicing rights with respect thereto, or grant
participations therein or issue mortgage pass-through certificates or other
securities evidencing a beneficial interest in a rated or unrated public
offering or private placement (the "Securities"). Mortgagee may forward to each
purchaser, transferee, assignee, servicer, participant, investor in such
Securities or any rating agency (a "Rating Agency") rating such Securities (all
of the foregoing entities collectively referred to as the "Investor") and each
prospective Investor, all documents and information which Mortgagee now has or
may hereafter acquire relating to the Secured Obligations, Mortgagor and the
Mortgaged Property, as Mortgaged determines necessary or desirable. Xxxxxxxxx
agrees to cooperate with Mortgagee in connection with any transfer made or any
Securities created pursuant to this Section 39, provided such cooperation does
not require Mortgagor to incur any material cost or expense. Mortgagor shall
also furnish (and Mortgagor consents to Mortgagee furnishing) to such Investors
or such prospective Investors or Rating Agency any and all available information
concerning the Mortgaged Property, the Leases and/or the financial condition of
Mortgagor as may be requested by Mortgagee, any Investor or any prospective
Investor or Rating Agency in connection with any such sale, transfer or
participation interest. In addition to any other obligations Mortgagor may have
under this Section 39, Mortgagor shall execute such amendments to this Mortgage,
the Loan Documents and Mortgagor's organizational documents as may be requested
by Mortgagee to effect the assignment of this Mortgage and/or the Loan
Documents; provided, however, that Mortgagor shall not be required to modify or
amend any Loan Document if the overall effect of such modification or amendment
would (y) change the interest rate, the maturity or the amortization of
principal set forth in the Loan Agreement, or (z) modify or amend any other
material economic term of the Loan Documents.
23
SECTION 40. Performance at Xxxxxxxxx's Expense. Mortgagor
acknowledges and confirms that Mortgagee shall be entitled to impose certain
administrative processing and/or commitment fees in connection with: (a)
extensions, renewals, modifications, amendments and terminations of this
Mortgage, the Loan Documents requested by Xxxxxxxxx and (b) the release or
substitution of collateral for the Secured Obligations requested by Xxxxxxxxx,
and that Mortgagee shall be entitled to reimbursement for its reasonable
out-of-pocket costs and expenses associated with its provision of consents,
waivers and approvals under this Mortgage and the Loan Documents. Xxxxxxxxx
further acknowledges and confirms that it shall be responsible for the payment
of all costs of reappraisal of the Mortgaged Property or any part thereof, which
are required by law, regulation or any governmental or quasi-governmental
authority. Xxxxxxxxx hereby acknowledges and agrees to pay, immediately, upon
demand, all such reasonable fees, costs and expenses.
SECTION 41. Waiver of Notice. Mortgagor shall not be entitled to
any notices of any nature whatsoever from Mortgagee except with respect to
matters for which this Mortgage specifically and expressly provides for the
giving of notice by Mortgagee to Mortgagor and except with respect to matters
for which Mortgagee is required by applicable law to give notice, and Xxxxxxxxx
hereby expressly waives the right to receive any notice from Mortgagee with
respect to any matter for which this Mortgage does not specifically and
expressly provide for the giving of notice by Mortgagee to Mortgagor.
SECTION 42. Sole Discretion of the Lender. Wherever pursuant to
this Mortgage (a) Mortgagee exercises any right given to it to approve or
disapprove any matter, (b) any arrangement or term is to be satisfactory to
Mortgagee, or (c) any other decision or determination is to be made by
Mortgagee. the decision of Mortgagee to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Mortgagee, shall be in the sole and
absolute discretion of Mortgagee and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein.
SECTION 43. Relationship of Mortgagor and Mortgagee. The
relationship between Mortgagor and Mortgagee is solely that of debtor and
creditor, and Mortgagee shall not have (and shall not be deemed to have) any
fiduciary or other special relationship with Xxxxxxxxx, and no term or condition
of this Mortgage or any Loan Document shall be construed so as to create or deem
the relationship between Mortgagor and Mortgagee to be other than that of debtor
and creditor. Mortgagor is not relying on Mortgagee's expertise business acumen
or advice in connection with the Mortgaged Property.
SECTION 44. No Lender Obligations. (a) Notwithstanding the
provisions of this Mortgage, Mortgagor acknowledges that Mortgagee has not
undertaken the performance of any obligations under (i) the Leases, or (ii)
agreements, contracts, certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter entered into, and
all rights therein and thereto, respecting or pertaining to the use, occupation,
construction, management or operation of the Mortgaged Property.
(b) By accepting or approving anything required to be
observed, performed or fulfilled or to be given to Mortgagee pursuant to this
Mortgage and/or the Loan Documents
24
Mortgagee shall not be deemed to have warranted, consented to, or affirmed the
sufficiency, the legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or affirmation with respect
thereto by Mortgagee.
(c) Mortgagor shall observe and perform each and every
term to be observed or performed by Mortgagor pursuant to the terms of any
agreement or recorded instrument affecting or pertaining to the Mortgaged
Property, or given by Mortgagor to Mortgagee for the purpose of further securing
an obligation secured hereby and any amendments, modifications or changes
thereto.
25
IN WITNESS WHEREOF, this instrument is executed as of the day
and year first above written by the person or persons identified below on behalf
of Xxxxxxxxx (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
MORTGAGOR:
U.S. PLASTIC LUMBER LTD., a Delaware
corporation, doing business in
Florida as U.S. PLASTIC LUMBER, INC.
- WORLDWIDE
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
