EXHIBIT 10 (a)
MORTGAGE MODIFICATION
AGREEMENT
---------
THIS MORTGAGE MODIFICATION AGREEMENT (the "Agreement") made and
entered into this 1st day of October, 2001 by and between:
THACKERAY CORPORATION, a Delaware corporation, whose office address
for notice purposes hereunder is 000 Xxxxxxx Xxxxxx, Xxxxx #0000, Xxx
Xxxx, Xxx Xxxx 00000 Attn: Xxxxx Xxxx (hereinafter referred to as
"Mortgagor")
and
BANK OF AMERICA, NA., a national banking association, having an office
address at 000 Xxxxx Xxxxxx, XX 1-100-80-07, Xxxxxxxxx, Xxxxxxxxx
00000-0000 (hereafter referred to as the "Mortgagee").
W I T N E S S E T H:
--------------------
WHEREAS, on September 3, 1999, Mortgagor and Bank of America, N.A., a
national banking association, ("BOA") recorded that certain MORTGAGE, ASSIGNMENT
OF RENTS, AND SECURITY AGREEMENT [THACKERAY LAND] dated as of August 11, 1999,
in OFFICIAL RECORDS BOOK 5833, PAGE 359, Public Records of Orange County,
Florida (the "Original Mortgage"), to which Original Mortgage reference is made
for a description of the Mortgaged Property, the Loan Agreement, the Notes, the
Obligations, the Future Advance, the Mortgage Documents and to which Original
Mortgage reference is made for a description of all collateral secured thereby;
and
WHEREAS, among other things, the Original Mortgage secured payment
of: (i) "Loan A", as defined in the Original Mortgage (the "Original Loan A"),
and the Loan A Note, as defined in the Original Mortgage (the "Original Loan A
Note") and (ii) "Loan B", as defined in the Original Mortgage (the "Original
Loan B") and the Loan B Note, as defined in the Original Mortgage (the "Original
Loan B Note"); and
WHEREAS, on even date herewith, the Original Loan B Note has been
amended and restated in that certain Amended and Restated Mortgage Note in the
principal amount of Twelve Million Eight Hundred Thousand Dollars
($12,800,000.00) from Mortgagor as Maker to Mortgagee as Holder (the "Loan B
Note" with the loan evidenced thereby being referred to as "Loan B"); and
WHEREAS, pursuant to and as evidenced by the Amended and Restated
Mortgage, Assignment of Rents and Security Agreement [Thackeray Land] attached
hereto and incorporated herein as EXHIBIT A, the parties wish to amend and
restate the Original Mortgage and the Original Mortgage Documents as follows:
(a) to confirm that the Original Mortgage shall hereafter secure only
Loan B and the Loan B Note so that the Amended and Restated Mortgage attached as
EXHIBIT A hereto shall NOT secure Original Loan A, the Original Loan A Note or
the Original Loan A Note as split, modified, amended and restated of even date
herewith; and
(b) to confirm that the outstanding principal balance of Loan B and
the Loan B Note has been reduced from $22,000,000.00 to $12,800,000.00 in
connection with a restructuring of such existing debt; and
(c) to make such other changes as are set forth in the Amended and
Restated Mortgage, Assignment of Rents and Security Agreement [Thackeray Land]
attached hereto as EXHIBIT A.
NOW, THEREFORE, in consideration of mutual premises herein contained,
the parties do hereby agree as follows:
1. WHEREAS CLAUSES. The above "Whereas" clauses are true and correct
and form a material part of this Agreement.
2. AMENDED AND RESTATED ORIGINAL MORTGAGE. The parties hereto do
hereby agree and confirm that to evidence the changes set forth above, they are
executing simultaneously herewith that certain Amended and Restated Mortgage,
Assignment of Rents and Security Agreement [Thackeray Land] attached hereto as
EXHIBIT A.
3. DEFINITIONS. Unless expressly defined in this Agreement, all
capitalized terms shall have the definitions set forth in the Original Mortgage
or the Original Mortgage Documents.
4. COMPLETE AGREEMENT. This Agreement constitutes the complete
agreement between the parties hereto and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or modification.
[SIGNATURE PAGES TO FOLLOW]
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"MORTGAGOR"
THACKERAY CORPORATION,
A DELAWARE CORPORATION
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Vice President
"MORTGAGEE"
BANK OF AMERICA, N.A., A NATIONAL
BANKING ASSOCIATION
By: /s/ X.X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Sr. Vice President
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EXHIBIT "A"
-----------
AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND
------------------------------------------------------
SECURITY AGREEMENT [THACKERAY LAND]
-----------------------------------
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NO NEW DOCUMENTARY STAMP TAXES OR INTANGIBLES TAXES ARE DUE THEREON BECAUSE: (1)
THIS IS A MODIFICATION OF THE ADDITIONAL COLLATERAL MORTGAGE, ASSIGNMENT OF
RENTS AND SECURITY AGREEMENT (THACKERAY LAND) RECORDED IN O. R. BOOK 5833, PAGE
359, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA (THE "MORTGAGE") UPON WHICH NO
DOCUMENTARY STAMP TAXES AND INTANGIBLE TAXES WERE PAID AS $140,000.00 OF
DOCUMENTARY STAMP TAXES AND $80,000.00 OF INTANGIBLES TAXES WERE PAID ON A TAX
BASE OF $40,000,000.00 IN CONJUNCTION WITH THE RECORDING OF THAT CERTAIN
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT ("BT ORLANDO MORTGAGE")
RECORDED IN O.R. BOOK 5833, PAGE 321, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA,
SECURING THE NOTES FOR WHICH THE MORTGAGE WAS ADDITIONAL COLLATERAL AND (2) THIS
INSTRUMENT NOW IS ADDITIONAL COLLATERAL FOR ONLY NOTE B REFERENCED IN THAT
CERTAIN BT ORLANDO MORTGAGE AS AMENDED AND RESTATED ON EVEN DATE HEREWITH, IN
THE REDUCED PRINCIPAL AMOUNT OF $12,800,000.00, WITH THE ORIGINAL OBLIGOR. FOR
PURPOSES OF VERIFYING THE ABOVE RECITALS ONLY, THE AFORESAID DOCUMENTS ARE
INCORPORATED HEREIN BY THIS REFERENCE THERETO.
AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND
------------------------------------------------------
SECURITY AGREEMENT (THACKERAY LAND)
-----------------------------------
THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (the "Amended and Restated Mortgage"), made as of the 1st day of
October, 2001, between Thackeray Corporation, a Delaware corporation, whose
office for notice purposes under this Amended and Restated Mortgage is 000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 10022, Attn: Xxxxx Xxxx, as
mortgagor and debtor (referred to as the "Mortgagor") and BANK OF AMERICA, N.A.,
a national banking association (the "Mortgagee"), as Mortgagee and secured
party, whose address is 000 Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxxxxxx
00000-0000.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
-----------------------------------
1.1 Definitions. As used in this Amended and Restated Amended and
Restated Mortgage and in the exhibits attached hereto, the following terms shall
have the following meanings herein specified, such definition to be applicable
equally to the singular and plural forms of such terms:
(a) Commitment: The commitment letter from Mortgagee to BT Orlando
Limited Partnership, a Florida limited partnership ("BT Orlando") dated June 1,
2001, together with amendments thereto dated NA.
(b) Default Rate: The Default Rate as defined in the Note.
(c) Environmental Claim: Any investigative, enforcement, cleanup,
removal, containment, remedial or other private or governmental or regulatory
action at any time threatened, instituted or completed pursuant to any
applicable Environmental Requirement, against or with respect to the Mortgaged
Property or any condition, use or activity on the Mortgaged Property (including
any such action against Mortgagor and/or Mortgagee pertaining to the Mortgaged
Property), and any claim at any time threatened or made by any person against or
with respect to the Mortgaged Property or any condition, use or activity on the
Mortgaged Property (including any such claim against Mortgagor and/or Mortgagee
pertaining to the Mortgaged Property), relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or in any way arising in
connection with any Hazardous Material or any Environmental Requirement.
(d) Environmental Law: Any federal, state or local law, statute,
ordinance, code, rule, regulation, license, authorization, decision, order,
injunction, decree, or rule of common law, and any judicial or agency
interpretation of any of the foregoing, which pertains to health, safety, any
Hazardous Material, or the environment (including but not limited to ground or
air or water or noise pollution or contamination, and underground or above
ground tanks) and shall include without limitation, the Solid Waste Disposal
Act, 42 U.S.C. 6901 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq. ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("XXXX");
the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42
U.S.C. 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.;
the Safe Drinking Water Act, 42 U.S.C. 300f et seq.; the Florida Resource
Recovery and Management Act, the Florida Water Quality Assurance Act of 1983,
The Florida Resource Conversation and Recovery Act, the Florida Air and Water
Pollution Control Act, The Florida Safe Drinking Water Act, The Florida
Pollution Spill Prevention and Control Act and any other local, state or federal
environmental statutes, and all rules, regulations, orders and decree now or
hereafter promulgated under any of the foregoing, as any of the foregoing now
exist or may be changed or amended or come into effect in the future.
(e) Environmental Requirement: Any Environmental Law, agreement or
restriction (including but not limited to any condition or requirement imposed
by any insurance or surety company), as the same now exists or may be changed or
amended or come into effect in the future, which pertains to health, safety, any
Hazardous Material, or the environment, including but not limited to ground or
air or water or noise pollution or contamination, and underground or above
ground tanks.
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(f) Events of Default: Those events described in Article VIII hereof.
(g) Fixtures: All property and equipment now owned or hereafter
acquired by Mortgagor and now or hereafter located under, on, or above the Land,
whether or not permanently affixed, which, to the fullest extent permitted by
applicable law in effect from time to time, shall be deemed fixtures and a part
of the Land.
(h) Future Advances: Any loan of money from Mortgagee to BT Orlando
Limited Partnership made within twenty (20) years from the date hereof, with the
advance written consent of Mortgagor, except as provided hereinbelow. The total
amount of such loan or loans may decrease or increase from tune to time, but the
total unpaid aggregate balance secured by this Amended and Restated Mortgage at
any one time shall not exceed $25,000,000.00, plus interest thereon, and any
disbursements made for the payment of the Impositions (whether taxes, levies or
otherwise), insurance, taxes, appraisals, environmental audits, assessments or
reports, surveys, or other liens on the Mortgaged Property, with interest on
such disbursements. The Mortgagee has no obligation, whatsoever, to make a
Future Advance. Notwithstanding the foregoing, any and all sums expended or
advanced, plus interest thereon, deemed necessary or desirable by Mortgagee, in
any one or more of the following categories, shall not require the consent of
Mortgagor or BT Orlando: (i) sums to protect the priority, validity and
enforceability of Mortgagee's lien and security interest in the Mortgaged
Property and any and all collateral under the Loan Documents including, but not
limited to, disbursements made for the payment of the Impositions (whether
taxes, levies or otherwise), insurance, taxes, appraisals, environmental audits,
assessments or reports, OR surveys, with interest on such disbursements; (ii)
sums to prevent the value of the Mortgaged Property and all collateral from
being diminished and to protect the collateral from being damaged, impaired,
mismanaged, or taken; (iii) sums to cure any and all defaults on non-performance
by BT Orlando or Mortgagor, as applicable, under the Obligations and the
Thackeray Obligations; (iv) sums to prevent or cure any and all defaults under
the Junior Mortgage(s) or under the Junior Mortgage Loan documents or (v) sums
to enforce any and all remedies permitted under the Loan Documents.
(i) Governmental Authority: Any (domestic or foreign) federal, state,
county, municipal or other governmental department, entity, authority,
commission, board, bureau, court, agency or any instrumentality of any of them.
(j) Governmental Requirement: Any law, enactment, statute, code,
ordinance, order, rule, regulation, judgment, decree, writ, injunction,
franchise, permit, certificate, license, authorization, or other direction or
requirement of any Governmental Authority now existing or hereafter enacted,
adopted, promulgated, entered, or issued applicable to Mortgagee, Mortgagor or
the Mortgaged Property, including, without limitation, any Environmental Law.
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(k) Guarantor: Jointly and severally any and all Persons now or
hereafter guarantying the Obligations or any part thereof (collectively referred
to as the "Guarantor").
(l) Guaranty: Any guaranty of payment, performance or completion
executed by any Guarantor in favor of Mortgagee with respect to the Obligations.
(m) Hazardous Material: Any substance, whether solid, liquid or
gaseous which is listed, defined or regulated as a "hazardous substance,"
"hazardous waste," or "solid waste," or pesticide or otherwise classified as
hazardous or toxic, in or pursuant to any Environmental Requirement; or which is
or contains asbestos, radon, any polychlorinated biphenyl, urea formaldehyde
foam insulation, explosive or radioactive material, or motor fuel or other
petroleum hydrocarbons; which causes or poses a threat to cause a contamination
or nuisance on the Mortgaged Property or any adjacent property or a hazard to
the environment or to the health or safety of persons on the Mortgaged Property.
(n) Impositions: All (i) real estate and personal property taxes and
other taxes and assessments, public or private; utility rates and charges
including those for water and sewer, all other governmental and non-governmental
charges and any interest or costs or penalties with respect to any of the
foregoing; and charges for any public improvement, easement or agreement
maintained for the benefit of or involving the Mortgaged Property, general and
special, ordinary and extraordinary, foreseen and unforeseen, of any kind and
nature whatsoever that at any time prior to or after the execution of this
Amended and Restated Mortgage may be assessed, levied or imposed upon the
Mortgaged Property or the Rent or income received therefrom, or any use or
occupancy thereof, (ii) other taxes, assessments, fees and governmental and
non-governmental charges levied, imposed or assessed upon or against Mortgagor
or the Mortgaged Property and (iii) taxes levied or assessed upon this Amended
and Restated Mortgage, the Note, and the other Obligations, or any of them.
(o) Improvements: All buildings, structures, appurtenances and
improvements, including all additions thereto and replacements and extensions
thereof, now constructed or hereafter to be constructed under, on or above the
Land, which term includes any part thereof.
(p) Junior Mortgage; Mezzanine or Junior Lender. Any Mortgage
permitted by Mortgagee which now or hereafter encumbers all or any portion of
the Mortgaged Property and which is junior or subordinate to the lien of this
Amended and Restated Mortgage, which term shall collectively refer to all such
mortgages and the note or notes secured thereby. The term "Junior Mortgage"
includes that certain Mortgage from Mortgagor in favor of Canpartners Realty
Holding Company IV LLC, a California limited liability company ("Canyon"),
securing the "Mezzanine Debt" as that term is defined in the Loan Agreement.
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(q) Land: The real property described in Exhibit "A" attached hereto
and made a part hereof, together with all rights, privileges, tenements,
hereditaments, rights-of-way, easements, appendages, projections, appurtenances,
water rights including riparian and littoral tights, impact fee credits and
rights to such credits, if any, sewer, water and utility reservations of
capacity, if any, rights to defer impact fee payments granted by the City of
Orlando, vested rights with respect to any and all land use approvals, if any,
all streets, ways, alleys, and strips and gores of land now or hereafter in
anyway belonging, adjoining, crossing or pertaining to the Land.
(r) Leases: Any and all leases, subleases, licenses, concessions, or
grants of other possessory interests, together with the security therefor, now
or hereafter in force, oral or written, covering or affecting the Mortgaged
Property or any part thereof.
(s) Loan: $12,800,000.00 as evidenced by the Note.
(t) Loan Agreement: Collectively, the Amended and Restated Loan
Agreement of even date herewith, between BT Orlando and Mortgagee, and any other
future amendments, modifications, restatements and changes in form thereof and
from time to time.
(u) Loan Documents: The Commitment and those items required by the
Commitment and any other document or instrument executed, submitted, or to be
submitted by Mortgagor and/or BT Orlando or others in connection with the Loan,
including but not limited to the: (i) Note, (ii) Amended and Restated Mortgage,
(iii) Guaranty, (iv) Loan Agreement, (v) financing statements, (vi)
Environmental Indemnity Agreement, (vii) any interest rate protection
agreements, and (viii) any other document or instrument executed by Mortgagor
and/or BT Orlando or Guarantor in connection with the Loan, including but not
limited to the BT Orlando Loan B Mortgage as defined hereinbelow and the
Environmental Indemnity Agreement executed by BT Orlando in favor of Mortgagee
in conjunction with said BT Orlando Loan B Mortgage.
(v) Maximum Rate: The Maximum Rate as defined in the Note.
(w) Mortgaged Property: The Land, Improvements, Fixtures, Leases,
Rents and Personal Property together with:
(i) all judgments, awards of damages and settlements hereafter
made resulting from condemnation proceedings or the taking of the Mortgaged
Property or any part thereof under the power of eminent domain, or by agreement
in lieu thereof, or for any damage thereto caused by any governmental action
(whether by such taking or otherwise), such as without limitation, any award for
change of grade of streets;
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(ii) all judgments, awards and settlements hereafter made, and
all insurance proceeds hereafter paid for any damage to the Mortgaged Property,
and all unearned insurance premiums on any insurance policies maintained by the
Mortgagor or BT Orlando pursuant to this Amended and Restated Mortgage;
(iii) all awards and refunds hereafter made with respect to any
Imposition; and
(iv) the estate, right, title, interest, privilege, claim or
demand whatsoever of Mortgagor, or of BT Orlando, if any, now or hereafter,
either at law or in equity, in and to the Mortgaged Property.
The term Mortgaged Property includes any part of the foregoing property
described as Mortgaged Property, and all proceeds, products, replacements,
improvements, betterments, extensions, additions, substitutions, renewals,
accessories, and appurtenances thereto and thereof.
(x) Mortgagee: Bank of America, N.A., a national banking association,
its successors and assigns.
(y) Mortgagor: Thackeray Corporation, a Delaware corporation.
(z) Note: The Amended and Restated Mortgage Note dated of even date
herewith from BT Orlando Limited Partnership, a Florida limited partnership ("BT
Orlando") to Mortgagee, in the original principal amount of $12,800,000.00, and
by this reference made a part hereof to the same extent as though set out in
frill herein, and any other note given to Mortgagee evidencing a Future Advance
as any of said notes may from time to time hereafter be modified, amended,
extended or renewed.
(aa) Obligations:
(i) Any and all of the indebtedness, liabilities, covenants,
promises, agreements, terms, conditions, and other obligations of every nature
whatsoever, whether joint or several, direct or indirect, absolute or
contingent, liquidated or unliquidated, matured or unmatured, of Mortgagor, BT
Orlando and Guarantor, or any of them, to Mortgagee, evidenced by, secured by,
under and as set forth in the Note, the Loan B Split Amended and Restated
Mortgage from BT Orlando to Mortgagee of even date herewith (the "BT Orlando
Loan B Mortgage"), this Amended and Restated Mortgage, the Guaranty or the other
Loan Documents, including, but not limited to, and with respect to Loan B only,
any letter of credit issued by Mortgagee for the account of BT Orlando and with
respect to loan B only, any interest rate protection agreements entered into by
BT Orlando with Mortgagee or any of Mortgagee's affiliates to hedge the risk of
variable interest rate volatility or fluctuations of interest rates; together
with all expenses, attorneys' fees, paralegals' fees and legal assistants' fees
incurred by Mortgagee in the preparation, execution, perfection or enforcement
of any document relating to any of the foregoing; but any obligation of a
Guarantor to pay any indebtedness to Mortgagee or its affiliates other than
under the Note, the BT Orlando Loan B Mortgage and under the other Loan
Documents shall not be an obligation hereunder;
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(ii) intentionally omitted
(iii) Any and all Future Advances, subject to and in accordance
with Section 1.1 (h) hereinabove.
(bb) Partnership: Any general or limited partnership, joint venture,
or other form of partnership, howsoever designated.
(cc) Permitted Title Exceptions: Those matters, if any, described in
Schedule B to the title insurance policy insuring Mortgagee's interest in this
Amended and Restated Mortgage, which may include a Junior Mortgage, as defined
hereinabove.
(dd) Person: Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
government, or agency or political subdivision thereof, or any other form of
entity.
(ee) Personal Property: All of the following property of Mortgagor
whether now owned or existing, or hereafter acquired or arising, located in, on,
pertaining to, used or intended to be used in connection with or resulting or
created from the ownership, development, management, or operation of the Land:
(i) all Improvements (to the extent same are not deemed to be
real property) and landscaping;
(ii) all Fixtures (to the extent same are not deemed to be real
property) and goods to become Fixtures;
(iii) intentionally omitted;
(iv) intentionally omitted;
(v) intentionally omitted;
(vi) intentionally omitted;
(vii) all Leases and Rents (to the extent same are not deemed to
be real property);
(viii) all judgments, awards of damages and settlements from any
condemnation or eminent domain proceedings regarding the Land, the Improvements
or any of the Mortgaged Property;
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(ix) all insurance policies required by this Amended and
Restated Mortgage, the unearned premiums therefor and all loss proceeds thereof;
(x) all other personal property pertaining to the Mortgaged
Property, including, without limitation, any management contracts, construction
contracts, architectural contracts, service contracts, engineering contracts
and/or advertising contracts pertaining to the Land; contracts for purchase and
sale of any of the Mortgaged Property, purchase orders, equipment leases, monies
in escrow accounts, reservation agreements, prepaid expenses, deposits and down
payments all with respect to the sale or rental of any of the Mortgaged
Property; options and agreements with respect to additional real property for
use or development of the Mortgaged Property; and end-loan commitments,
abstracts of title, all brochures, advertising materials, condominium documents
and prospectuses, all pertaining to the Mortgaged Property; and
(xi) all proceeds, products, replacements, additions,
betterments, extensions, improvements, substitutions, renewals and accessions of
any and all of the foregoing.
(ff) Rents: All of the rents, royalties, issues, revenues, income,
profits, security deposits and other benefits whether past due, or now or
hereafter arising from the Mortgaged Property and the occupancy, use and
enjoyment thereof.
1.2 Rules of Construction. The use of any gender shall include all
other genders. The singular shall include the plural and the plural shall
include the singular. The word "or" is not exclusive and the use of the word
"and" may be conjunctive or disjunctive in the sole and absolute discretion of
Mortgagee. The captions of Articles, Sections and Subsections of this Amended
and Restated Mortgage are for convenient reference only, and shall not affect
the construction or interpretation of any of the terms and provisions set forth
herein.
1.3 Security Agreement. This Amended and Restated Mortgage
constitutes a "Security Agreement" within the meaning of and shall create a
security interest under the Uniform Commercial Code-Secured Transactions as
adopted by the State of Florida, with respect to the Fixtures, Leases, Rents and
Personal Property. A carbon, photographic or other reproduction of this Amended
and Restated Mortgage or of any financing statement shall be sufficient as a
financing statement. The Mortgagor's principal place of business and the secured
party's address is set forth in the introduction to this Amended and Restated
Mortgage.
ARTICLE II
GRANT/SATISFACTION
------------------
2.1 Grant. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to secure the payment,
observance, performance and discharge of the Obligations, Mortgagor does by
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these presents give, transfer, grant, bargain, sell, alien, remise, release,
assign, Amended and Restated Mortgage, hypothecate, deposit, pledge, set over,
confirm, convey and warrant unto Mortgagee all estate, right, title and interest
of Mortgagor in and to the Mortgaged Property, whether now owned or held or
hereafter acquired by Mortgagor, subject, however, to the Permitted Title
Exceptions, to have and to hold the Mortgaged Property unto Mortgagee, its
successors and assigns forever.
2.2 Condition of Grant/Satisfaction. Subject to the provisions of
this Amended and Restated Mortgage, the condition of these presents is such that
if BT Orlando shall pay, observe, perform and discharge the Obligations, or
cause same to be paid, observed, performed and discharged in strict accordance
with the terms thereof, then this Amended and Restated Mortgage and the estates,
interests, rights and assignments granted hereby shall be null and void, but
otherwise shall remain in full force and effect. NOTWITHSTANDING THE FOREGOING
OR ANY OTHER PROVISION IN THIS AMENDED AND RESTATED MORTGAGE, MORTGAGEE SHALL
SATISFY THIS AMENDED AND RESTATED MORTGAGE INCLUDING THE ASSIGNMENT OF LEASES
AND RENTS HEREIN CONTAINED AND ALL OTHER LIENS AND SECURITY INTERESTS CREATED IN
THIS AMENDED AND RESTATED MORTGAGE, UPON PAYMENT TO MORTGAGEE OF A SATISFACTION
PAYMENT ("SATISFACTION PAYMENT") OF EIGHT MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($8,500,000.00) IN IMMEDIATELY AVAILABLE FUNDS, BUT ONLY SO LONG
AS THERE HAS OCCURRED NO DEFAULT OR EVENT OF DEFAULT UNDER THIS AMENDED AND
RESTATED MORTGAGE OR ANY OF THE LOAN DOCUMENTS, OR ANY EVENT THAT FOLLOWING
NOTICE OR PASSAGE OF TIME OR BOTH WOULD RESULT IN A DEFAULT OR AN EVENT OF
DEFAULT HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS, WHICH SATISFACTION
PAYMENT SHALL BE APPLIED TO THE OUTSTANDING PRINCIPAL BALANCE OF THE NOTE AND
THEN TO ANY INTEREST OR FEES, IF ANY, IN CONNECTION WITH THE OBLIGATIONS, AND
WHICH SATISFACTION SHALL BE EVIDENCED BY A SATISFACTION OF MORTGAGE RECORDED IN
THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA.
2.3 Subrogation. Until the Loan is paid in full, the Mortgagee is
hereby subrogated to the claims and liens of all parties whose claims or liens
are fully or partially discharged or paid with the proceeds of the indebtedness
secured by this Amended and Restated Mortgage notwithstanding that such claims
or liens may have been canceled and satisfied of record.
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ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
------------------------------
3.1 Assignment. The Mortgagor does hereby absolutely and
unconditionally assign and transfer to Mortgagee all of Mortgagor's estate,
right, title and interest in and to the Leases and Rents, to have and to hold
the Leases and Rents unto Mortgagee, its successors and assigns forever. From
time to time, upon request of Mortgagee, Mortgagor shall give further evidence
of this assignment to Mortgagee by executing and delivering to Mortgagee
specific assignments of the Leases and Rents, in form and content approved by
Mortgagee. All such specific assignments shall be of the same dignity and
priority as this Amended and Restated Mortgage. From time to time, upon request
of Mortgagee, Mortgagor shall also execute and deliver to Mortgagee any
notification to tenants or other document reasonably required by Mortgagee.
3.2 Payment of Rents to Mortgagor, as Trustee, Until Default. So long
as no Event of Default has occurred, Mortgagor may, as trustee for the use and
benefit of Mortgagee, collect, receive and accept the Rents as they become due
and payable (but in no event for more than two (2) months in advance); provided,
however, that if the Rents exceed the payments due under the Note, the Mortgagor
may use such excess, first, for the operation and benefit of the Mortgaged
Property and, second, for the general benefit of the Mortgagor. Upon the
occurrence of an Event of Default Mortgagee may, at its option, remove the
Mortgagor as trustee for the collection of the Rents and appoint any other
person including, but not limited to, itself as a substitute trustee to collect,
receive, accept and use all such Rents in payment of the Obligations, in such
order as Mortgagee shall elect in its sole and absolute discretion, whether or
not Mortgagee takes possession of the Mortgaged Property. Mortgagor hereby
directs each of the respective tenants under the Leases, and any rental agent,
to pay to Mortgagee all such Rents, as may now be due or shall hereafter become
due, upon demand for payment thereof by Mortgagee without any obligation on the
part of any such tenant or rental agent to determine whether or not an Event of
Default has in fact occurred. Upon an Event of Default, the permission hereby
given to Mortgagor to collect, receive and accept such Rents as trustee shall
terminate and such permission shall not be reinstated upon a cure of the Event
of Default without Mortgagee's specific written consent. Further, upon the event
of a Default, Mortgagor shall immediately turn over to Mortgagee all Rents in
the actual or constructive possession of Mortgagor, its affiliates, contractors,
or its agents, together with an accounting thereof. Exercise of Mortgagee's
rights under this Section, and the application of any such Rents to the
Obligations, shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant hereto, but shall be cumulative and in
addition to all other rights and remedies of Mortgagee.
3.3 Performance Under Leases. Mortgagor covenants that it shall, at
its sole cost and expense, (a) duly and punctually perform and discharge, or
cause to be performed and discharged, all of the obligations and undertakings of
Mortgagor or its agents under the Leases, (b) use its best efforts to enforce or
secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, (c)
promptly notify Mortgagee if Mortgagor receives any notice from a tenant
claiming that Mortgagor is in default under a Lease and (d) appear in and defend
any action or proceeding arising under or in any manner connected with the
Leases.
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3.4 Leases In Good Standing. All Leases, if any, are in full force
and effect, and there are no defaults thereunder or any defenses or offsets
thereto on the part of any tenant.
3.5 Provisions of Leases and Approval of Tenants. All Leases, if any,
shall be inferior and subordinate to the lien of this Amended and Restated
Mortgage and the terms of each Lease shall so expressly provide. Mortgagor
covenants that all Leases hereafter entered into by Mortgagor shall be in form
and substance satisfactory to Mortgagee. Further, the Mortgagee specifically
reserves the right to approve all proposed tenants, and any assignee or
sublessee of any existing tenant.
3.6 Termination or Modification. Mortgagor covenants that it shall
not, without the prior express written consent of Mortgagee, enter into a Lease,
or materially modify, terminate, or consent to the cancellation or surrender of
any Lease, or permit any tenant under any Lease to assign or sublet its rights
thereunder.
3.7 Delivery of Executed Leases and Monthly Status Reports. Mortgagor
covenants that it shall furnish Mortgagee with executed copies of all Leases
within ten (10) days after the execution thereof, and a monthly status report on
all leasing activities, together with such other related information as may be
reasonably required by Mortgagee.
3.8 No Obligation of Mortgagee. This Assignment shall not be deemed
or construed to constitute Mortgagee as a Mortgagee in possession of the
Mortgaged Property nor shall it obligate Mortgagee to take any action or to
incur expenses or perform or discharge any obligation, duty or liability of
Mortgagor under any Lease.
3.9 Cumulative Remedies. Each and every right, remedy and power
granted to Mortgagee by this Article shall be cumulative and in addition to
every other right, remedy and power given by the Loan Documents and now or
hereafter existing in equity, at law, or by virtue of statute or otherwise. The
failure of Mortgagee to avail itself of any of its rights, remedies and powers
shall not be construed or deemed to be a waiver thereof.
3.10 Notification of Mortgagee's Rights. Mortgagee shall have the
right, but not the obligation, at any time and from time to time, to notify any
tenant under any Lease of the rights of Mortgagee as provided in this Article
III and Mortgagor, upon demand from Mortgagee, shall confirm to such tenant the
existence of such rights.
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3.11 Management and Leasing.
(a) The Mortgagor covenants that the Mortgaged Property shall be
managed by the Mortgagor or, at the option of Mortgagor, by a management company
which shall have been approved in writing by the Mortgagee and pursuant to a
management agreement which shall have been approved in writing by the Mortgagee
prior to the execution thereof.
(b) In the event Mortgagor elects to engage a management company but
shall fail to select a company approved by Mortgagee, such failure shall
constitute an Event of Default under this Amended and Restated Mortgage.
(c) Intentionally Omitted.
3.12 Leasing Commission. Mortgagor covenants that any agreement to
pay leasing commissions with respect to the leasing of space in the Mortgaged
Property, or any part thereof, are and shall be subject, subordinate and
inferior to the right of Mortgagee, so that in the event Mortgagee acquires
title to the Mortgaged Property either at a foreclosure sale or by other means,
Mortgagee will be exonerated and discharged from all liabilities for the payment
of any such commissions or compensations.
3.13 Intentionally Omitted.
3.14 Other Assignments. Mortgagor shall not further assign or
transfer the Leases or Rents except in favor of Mortgagee as provided in this
Article III, and shall not create or permit to be created or to remain, any
mortgage, pledge, lien, encumbrance, claim, or charge on the Leases or Rents
except for the lien and security interest of the Mezzanine Lender which shall be
inferior and subordinate to this Amended and Restated Mortgage and the Loan
Documents. Any transaction prohibited under this Section shall be null and void.
3.15 Section 697.07 of the Florida Statutes. The assignments of
Leases and Rents contained in this Amended and Restated Mortgage are intended to
provide Mortgagee with all the rights and remedies of Mortgagees pursuant to
Section 697.07 of the Florida Statutes (hereinafter "Section 697.07"), as may be
amended from time to time. However, in no event shall this reference diminish,
alter, impair, or affect any other rights and remedies of Mortgagee, including
but not limited to, the appointment of a receiver as provided in Section 8.1(e)
herein, nor shall any provision in this Section diminish, alter, impair or
affect any rights or powers of the receiver in law or equity or as set forth in
Section 8.1(e), herein. In addition, this assignment shall be fully operative
without regard to value of the Mortgaged Property or without regard to the
adequacy of the Mortgaged Property to serve as security for the obligations owed
by Mortgagor to Mortgagee, and shall be in addition to any rights arising under
Section 697.07. Further, except for the notices required hereunder, if any,
Mortgagor waives any notice of default or demand for turnover of rents by
Mortgagee, together with any rights under Section 697.07 to apply to a court to
deposit the Rents into the registry of the court or such other depository as the
court may designate.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
4.1 Representations and Warranties. Mortgagor hereby represents and
warrants to Mortgagee that:
(a) Organization, Corporate Power, Partnership Power, Etc. Mortgagor
(A) is duly organized, validly existing and in good standing under the laws of
the state or country of its incorporation, (B) has the corporate power and
authority to own its properties and to carry on its business as now being
conducted, (C) is qualified to do business in the State of Florida, (D) is in
compliance with all Governmental Requirements pertaining to the Mortgaged
Property and the matters in clauses (A), (B) and (C) above, and (E) has not
amended or modified its articles or certificate of incorporation or its bylaws
except as previously disclosed in writing to Mortgagee prior to the execution
hereof.
(b) Validity of Loan Documents. (i) The execution, delivery and
performance by Mortgagor of the Loan Documents, (A) are within the powers and
purposes of Mortgagor, (B) have been duly authorized by all requisite action of
Mortgagor, (C) do not require the approval of any Governmental Authority, and
(D) will not violate any Governmental Requirement, the articles of incorporation
and bylaws of Mortgagor or any indenture, agreement or other instrument to which
Mortgagor is a party or by which it or any of its property is bound, or be in
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument,
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of its property or assets, except as contemplated
by the provisions of the Loan Documents; and (ii) this Amended and Restated
Mortgage and the Thackeray Environmental Indemnity Agreement by Mortgagor to
Mortgagee, constitute the legal, valid and binding obligations of Mortgagor in
accordance with their respective terms.
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) Intentionally Omitted.
(f) Title. Mortgagor is indefeasibly seized of and has and will have
good and marketable fee simple title to the Land and Improvements free and clear
of any and all mortgages, liens, encumbrances, claims, charges, equities,
covenants, conditions, restrictions, easements, rights-of-way and all other
matters affecting the Land and Improvements, whether or not of record, except
for those in favor of Mortgagee and for the Permitted Title Exceptions.
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Mortgagor has and will have good, absolute and marketable title to the Fixtures
and Personal Property all free and clear of any and all liens, charges,
encumbrances, security interests and adverse claims whatsoever, except those in
favor of Mortgagee and the Permitted Title Exceptions. Subject to the Permitted
Title Exceptions, Mortgagor will preserve its title to the Mortgaged Property
and will forever warrant and defend the same to Mortgagee and will forever
warrant and defend the validity and priority of the lien of this Amended and
Restated Mortgage against the claims of all persons and parties whomsoever.
Mortgagor will receive direct and indirect benefit from the Loan, is under
common control and ownership with BT Orlando and there is good and sufficient
consideration for Mortgagor to execute and deliver this Amended and Restated
Mortgage. Mortgagor is solvent within the meaning of all applicable bankruptcy
codes and regulations and under Generally Accepted Accounting Principles and the
execution and delivery of this Amended and Restated Mortgage will not render
Mortgagor insolvent.
(g) No Violations. No Governmental Requirement pertaining to the
Mortgaged Property (including, but not limited to, 21 U.S.C. Sections 811 and
881, and 18 U.S.C. Section 1961), and no covenant, condition, restriction,
easement or similar matter affecting the Land or Improvements has been violated,
and Mortgagor has not received any notice of violation from any Governmental
Authority or any other person with respect to any of the foregoing matters.
(h) Taxes. Mortgagor has paid all taxes and assessments which are a
lien on the Mortgaged Property which are due and payable. The Land is assessed
separately from all other adjacent land for the purposes of real estate taxes
and there is no intended public improvements which may involve any charge being
levied or assessed, or which may result in the creation of any lien upon the
Mortgaged Property.
(i) Litigation. There are no judgments outstanding against Mortgagor
and there is no action, suit, proceeding, or investigation now pending (or to
the best of Mortgagor's knowledge after diligent inquiry, threatened) against,
involving or affecting the Mortgaged Property, or any part thereof, at law, in
equity or before any Governmental Authority that if adversely determined as to
the Mortgaged Property or as to Mortgagor would result in a lien on the
Mortgaged Property or adverse change in its operation and ownership, nor is
there any basis for such action, suit proceeding or investigation.
(j) Intentionally Omitted.
(k) Condition of Mortgaged Property. The Mortgaged Property or any
part thereof, now existing, is not damaged or injured as a result of any fire,
explosion, accident, flood or other casualty. The Improvements, if any, as of
the date of this Amended and Restated Mortgage, are free of any defects in
material, structure and construction and do not violate any Governmental
Requirements. To the best of Mortgagor's knowledge, there is no existing,
proposed or contemplated plan to modify or realign any street or highway or any
existing, proposed or contemplated eminent domain proceeding that would result
in the taking of all or any part of the Mortgaged Property or that would
adversely affect the use or the operation of the Mortgaged Property.
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(l) Zoning. The Land is zoned partially AC-3 Metropolitan Activity
Center and partially R3-B Medium Density Residential,
(m) No Default. To Mortgagor's knowledge, no default or Event of
Default exists with respect to any of the Loan Documents or with lapse of time
or notice or both would constitute a default.
(n) Fictitious Name Statute. Mortgagor, if applicable, has duly
complied with all of the requirements of the Florida Fictitious Name Statute.
(o) Junior Mortgage. No Junior Mortgage exists as of the date hereof
except for that certain Junior Mortgage in favor of Canpartners Realty Holding
Company IV LLC, a California limited liability company, in the amount of Ten
Million Dollars ($10,000,000.00). Such Junior Mortgage does not require the
consent of any of the holders thereof to the Loan or if such consent is required
it has been obtained. Such Junior Mortgage is in good standing, all principal,
interest and other payments due thereunder have been paid in accordance with the
terms thereof, there is no default thereunder and no event has occurred which
with due notice or the lapse of time, or both, would constitute a default
thereunder.
(p) Environmental Contamination/Hazardous Material. Subject to all
matters disclosed in the Environmental Reports, defined below, and based solely
thereon and to the best of Mortgagor's knowledge, Mortgagor, as to the Mortgaged
Property, and the Mortgaged Property are in full compliance with all
Environmental Laws, and there are no civil, criminal or administrative actions,
suits, demands, claims, hearings, notices or demand letters, notices of
violation, investigations, or proceedings pending or threatened against the
Mortgagor, as to the Mortgaged Property, or the Mortgaged Property relating in
any way to any Environmental Law or any agreement, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered, promulgated or
approved under any Environmental Law as to the Mortgaged Property. Except as
disclosed in that certain Environmental Assessment Report prepared by Universal
Engineering Sciences, Inc., dated March 27, 2001, delivered to Mortgagee by
Mortgagor or BT Orlando (the "Environmental Report") and based solely thereon
and to the best of Mortgagor's knowledge, there have never been nor are there
currently any Hazardous Material located on, in, or under the Mortgaged Property
or used in connection therewith, and, except as disclosed in the Environmental
Reports and based solely thereon and to the best of Mortgagor's knowledge,
neither Mortgagor nor any other person has ever used the Mortgaged Property for
the manufacture, processing, distribution, use, transport, handling, treatment,
storage, disposal, emission, discharge or release of any Hazardous Material.
Except as disclosed in the Environmental Reports and based solely thereon and to
the best of Mortgagor's knowledge, no notice or advice has been received by
Mortgagor of any condition or state of facts that would be contributing to a
claim of pollution or any other damage to the environment by reason of the
conduct of any business on the Mortgaged Property or operation of the Mortgaged
Property, whether past or present.
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(q) Intentionally Omitted.
(r) Intentionally Omitted.
4.2 Reliance on Representations. The Mortgagor acknowledges that the
Mortgagee has relied upon the Mortgagor's representations, has made no
independent investigation of the truth thereof, is not charged with any
knowledge contrary thereto that may be received by an examination of the public
records in Tallahassee, Florida and wherein the Land is located or that may have
been received by any officer, director or employee of Mortgagee.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
5.1 Payment and Performance. Mortgagor shall promptly discharge its
obligations under the Thackeray Documents and BT Orlando shall promptly pay and
punctually perform, or shall cause to be promptly paid and punctually performed,
all of the Obligations as and when due and payable.
5.2 Existence. Mortgagor shall preserve and keep in full force and
effect its existence, rights, franchises, trade names and qualification to
transact business in the State of Florida.
5.3 Compliance With Laws. Mortgagor shall promptly and faithfully
comply with, conform to and obey all Governmental Requirements and the rules and
regulations now existing or hereafter adopted by every Board of Fire
Underwriters having jurisdiction, or similar body exercising similar functions,
that may be applicable to Mortgagor's corporate existence, corporate good
standing and/or to the Mortgaged Property or to the use or manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of the Mortgaged Property, whether or not such Governmental
Requirement or rule or regulation shall necessitate structural changes or
improvements or interfere with the use or enjoyment of the Mortgaged Property.
5.4 Impositions.
(a) Mortgagor shall pay all Impositions on the Mortgaged Property and
all taxes levied or assessed upon this Mortgage, the Obligations (but only to
the extent, with respect to the Obligations, that Mortgagor has any liability or
obligation thereunder), or any of them. In the event of the passage, after the
date of this Mortgage, of any law (i) making it illegal for the Mortgagor to pay
the whole or any part of the Impositions, or charges or liens herein required to
be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and all
16
taxes levied or assessed upon this Mortgage or the Obligations (but only to the
extent, with respect to the Obligations, that Mortgagor has any liability or
obligation thereunder), or the interest in the Mortgaged Property represented by
this Mortgage unlawful, or (iii) rendering the covenants for the payment of the
matters set forth in SUBPARTS (I) and (II) of this SUBSECTION by Mortgagor
legally inoperative, Mortgagor or BT Orlando shall pay, upon demand, the entire
unpaid Obligations (but only to the extent, with respect to the Obligations,
that Mortgagor has any liability or obligation thereunder) notwithstanding
anything in the Note, this Mortgage, or the other Loan Documents to the
contrary.
(b) BT Orlando or Mortgagor shall pay all ad valorem taxes on the
Mortgaged Property on or before December 1st of each year in which they become a
lien on the Mortgaged Property, and shall deliver to Mortgagee tax receipts
evidencing said payment on or before December 31st of each year. BT Orlando or
Mortgagor shall also deliver to Mortgagee receipts evidencing the payment of all
other Impositions within thirty (30) days after same become due and payable or
before same shall become delinquent, whichever is sooner.
5.5 Insurance. Until the Obligations shall have been fully discharged
by BT Orlando or Mortgagor, as applicable, Mortgagor or BT Orlando shall
maintain, at Mortgagor's or BT Orlando's cost and expense, the following
insurance coverages in full force and effect at all times throughout the term of
the Loan:
(a) Hazard Insurance. Mortgagee reserves the right to require
appropriate hazard insurance in the event any improvements are constructed on
the Land, such insurance to be in an amount and in such form and content as may
be determined by Mortgagee at its discretion.
(b) Liability Insurance. Mortgagor will obtain and keep in full force
general accident and public liability against all claims for bodily injury,
death or property damage occurring upon, in or about the Mortgaged Property in
amounts and coverages as Mortgagor or BT Orlando now carries as evidenced by the
Certificate of Insurance Mortgagor has delivered to Mortgagee, which Mortgagor
represents and warrants Mortgagee has approved.
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) Intentionally omitted.
(f) Intentionally Omitted.
(g) Other Insurance. Mortgagor or BT Orlando shall obtain any and all
other insurance coverages, if any, Mortgagee may require from time to time,
including, without limitation, flood insurance, if any improvements are
constructed on the Mortgaged Property. In addition, to the extent the Junior
Mortgage provides for or requires any additional types or amounts of insurance
not required hereunder, Mortgagor or BT Orlando shall promptly provide such
insurance coverages to and for Mortgagee.
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The policy or policies of insurance shall (i) be from companies
reasonably acceptable to Mortgagee, (ii) contain a standard mortgage clause in
favor of Mortgagee naming Mortgagee as an additional insured, (iii) not be
terminable or modified without thirty (30) days' prior written notice to
Mortgagee, and (iv) be evidenced by a Certificate of Insurance in form
acceptable to Mortgagee, to be held by Mortgagee until the Obligations shall
have been fully paid and discharged or this Amended and Restated Mortgage is
otherwise satisfied as provided herein. Mortgagor or BT Orlando shall furnish
Mortgagee satisfactory evidence of payment of all premiums required and similar
evidence of renewal or replacement coverage not later than thirty (30) days
prior to the date any coverage will expire.
Each insurance policy or endorsement required herein shall be written
by an insurer having a rating not less than "A-XII Best's Rating according to
the most current edition of Best's Key Rating Guide as determined at the time of
the initial policy and at all times during the term hereof.
All policies shall indicate that notices related to such insurance
shall be sent to Mortgagee at:
Bank of America, N.A.
LASR-lnsurance Group, Loan #318544
Mail Code: GA7-022-l0-01
X.X. Xxx 000000
Xxxxxxx, XX 00000-0000
Attn: Loan Administration
Real Estate Banking Group
WITH A COPY TO:
--------------
Bank of America, N.A.
000 Xxxxx Xxxxxx
XX0-x00-00-00
Xxxxxxxxx, XX 00000
Attn: Loan Administration
5.6 Intentionally omitted.
5.7 Condemnation.
(a) Mortgagor shall immediately notify Mortgagee upon obtaining any
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property or any part thereof or any interest therein.
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(b) If all or any part of the Mortgaged Property shall be damaged or
taken through condemnation (which term when used in this Mortgage shall include
any damage or taking by any Governmental Authority and any transfer by private
sale in lieu thereof, either temporarily or permanently), Mortgagee at its
option may declare all of the unpaid Obligations to be immediately due and
payable, and upon ten (10) days written notice from Mortgagee to Mortgagor all
such Obligations shall immediately become due and payable as fully and to the
same effect as if such date were the date originally specified for the final
payment or maturity thereof. Mortgagor and BT Orlando hereby assign, transfer,
and set over unto Mortgagee and Mortgagee shall be entitled to all compensation,
awards and other payments resulting from such condemnation, but not in excess of
the aggregate of (i) the Satisfaction Payment provided for in Section 2.2 above
and all unpaid accrued interest due under the Note, if any, plus (ii) all
Condemnation Costs and Expenses, as defined below, plus (iii) any and all unpaid
fees and charges, including legal fees due Mortgagee at the time the
condemnation award is paid (collectively, the "Mortgagee's Share of Condemnation
Proceeds", with such excess over the Mortgagee's Share of Condemnation Proceeds,
if any, being referred to as "Mortgagor's Share of Condemnation Proceeds"). The
Mortgagor's Share of Condemnation Proceeds, if any, shall be paid to Mortgagor.
Mortgagee is hereby authorized, at its option, to commence, appear in and
prosecute, in its own or in Mortgagor's name, any action or proceeding relating
to any condemnation, and to settle or compromise any claim in connection
therewith. The Mortgagee's Share of Condemnation Proceeds are hereby assigned by
Mortgagor to Mortgagee and shall be applied first to the payment of all costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Mortgagee in connection with any action or proceeding
under this Section (the "Condemnation Costs and Expenses"), second, to the
payment of the Satisfaction Payment (on all unpaid accrued interest under the
Note) to Mortgagee, and third, to Mortgagor as Mortgagor's Share of the
Condemnation Proceeds, if any, free from the lien and security interests of this
Amended and Restated Mortgage. Mortgagor and BT Orlando shall execute such
further assignments of any compensation, award, damages, right of action and
proceeds, as Mortgagee may require from time to time consistent herewith.
5.8 Intentionally Omitted.
5.9 Intentionally Omitted.
5.10 Repair. Mortgagor shall keep the Mortgaged Property in
compliance with all Governmental Requirements pertaining to the Mortgaged
Property.
5.11 Inspection. Mortgagor shall permit Mortgagee and its agents to
inspect the Mortgaged Property at any time during normal business hours and at
all other reasonable times.
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5.12 Contest of Tax Assessments, Etc. After prior written notice to
Mortgagee, Mortgagor, at its own expense, may contest by appropriate legal
proceedings, promptly initiated and conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of (a) any
of the Governmental Requirements referred to in Section 5.3 above, or (b) any
Imposition; provided that: (i) in the case of any unpaid Imposition, such
proceedings shall suspend the collection thereof from Mortgagor and from the
Mortgaged Property, (ii) the Mortgaged Property or any part thereof will not be
in danger of being sold, forfeited, terminated, canceled or lost, (iii) the use
of the Mortgaged Property or any part thereof for its present or future intended
purpose or purposes will not be interrupted, lost or terminated, (iv) Mortgagor
shall have set aside adequate reserves with respect thereto, and (v) Mortgagor
shall have furnished such security as may be required in the proceedings or as
may be reasonably requested by Mortgagee.
5.13 Expenses.
(a) Intentionally Omitted.
(b) Mortgagor shall pay or reimburse Mortgagee for all costs,
charges, expenses, and reasonable attorneys' fees paid or incurred by Mortgagee
pursuant to this Amended and Restated Mortgage including but not limited to
those costs, charges, expenses and fees paid or incurred for the payment of the
Impositions, insurance, or in any action, proceeding or dispute of any kind in
which Mortgagee is a party because of any obligations under the Thackeray
Documents as hereinafter defined not being duly and promptly performed or being
violated, including, but not limited to, the foreclosure or other enforcement of
this Amended and Restated Mortgage, any condemnation or eminent domain action
involving the Mortgaged Property or any part thereof, any action to protect the
security hereof, or any proceeding in probate, reorganization, bankruptcy, or
forfeiture in rem involving the Mortgaged Property. All such amounts paid or
incurred by Mortgagee, together with interest thereon at the Default Rate from
the date incurred by Mortgagee, shall be secured by this Amended and Restated
Mortgage and shall be due and payable by Mortgagor immediately, whether or not
there be notice or demand therefor. The "Thackeray Documents" means collectively
the Environmental Indemnity Agreement of even date herewith from Mortgagor to
Mortgagee, this Amended and Restated Mortgage, and any and all other Loan
Documents to which Mortgagor is a party.
(c) Any reference in this Amended and Restated Mortgage to attorneys'
or counsels' fees paid or incurred by Mortgagee shall be deemed to include
paralegals' fees and legal assistants' fees. Moreover, wherever provision is
made herein for payment of attorneys' or counsels' fees or expenses incurred by
the Mortgagee, said provision shall include, but not be limited to, such fees or
expenses incurred in any and all judicial, bankruptcy, reorganization,
administrative, or other proceedings, including appellate proceedings, whether
such fees or expenses arise before proceedings are commenced or after entry of a
final judgment.
5.14 Preservation of Agreements. Mortgagor shall preserve and keep in
full force and effect all agreements, approvals, permits and licenses necessary
for the development, use and operation of the Mortgaged Property for its
intended purpose or purposes.
20
5.15 Books and Records. The Mortgagor shall keep and maintain, at all
times, full, true and accurate books of accounts and records, adequate to
correctly reflect the results of the operation of the Mortgaged Property. The
Mortgagee shall have the right to examine such books and records and to make
such copies or extracts therefrom as the Mortgagee shall require.
5.16 Estoppel Affidavits. Mortgagor, within ten (10) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal balance of, and interest on,
the Obligations secured by this Amended and Restated Mortgage, and whether or
not any off-sets or defenses exist thereto.
5.17 Indemnification.
(a) Mortgagor shall at its own expense, and does hereby agree
to, protect, indemnify, reimburse, defend and hold harmless Mortgagee and its
directors, officers, agents, employees, attorneys, successors and assigns from
and against any and all liabilities (including strict liability), losses, suits,
proceedings, settlements, judgments, orders, penalties, fines, liens,
assessments, claims, demands, damages, injuries, obligations, costs,
disbursements, expenses or fees, of any kind or nature (including attorneys'
fees and expenses paid or incurred in connection therewith) arising out of or by
reason of (i) any action, or inaction of Mortgagee in connection with the Note,
this Amended and Restated Mortgage, the other Loan Documents or the Mortgaged
Property; and (ii) the use and operation of the Mortgaged Property. The
indemnifications of this Section shall survive the full payment and performance
of the Obligations and the satisfaction of this Amended and Restated Mortgage.
(b) Mortgagor hereby agrees to protect, indemnify, defend and
hold (i) Mortgagee; (ii) any persons or entities owned or controlled by, owning
or controlling, or under common control or affiliated with Mortgagee; (iii) the
directors, officers, partners, employees and agents of Mortgagee and/or such
persons or entities; and (iv) the heirs, personal representatives, successors
and assigns of each of the foregoing persons or entities (each an "Indemnified
Party") harmless from and against, and, if and to the extent paid, reimburse
them on demand for, any and all Environmental Damages (hereinafter defined).
Without limitation, the foregoing indemnity shall apply to each Indemnified
Party with respect to Environmental Damages which in whole or in part are caused
by or arise out of the negligence of such (and/or any other) Indemnified Party.
However, such indemnity shall not apply to a particular Indemnified Party to the
extent that the subject of the indemnification is caused by or arises out of the
gross negligence or willful misconduct of that particular Indemnified Party.
Upon demand by Mortgagee, Mortgagor shall diligently defend any Environmental
Claim which affects the Mortgaged Property or is made or commenced against
Mortgagee, whether alone or together with Mortgagor or any other person, all at
Mortgagor's own cost and expense and by counsel to be approved by Mortgagee in
the exercise of its reasonable judgment. In the alternative, at any time
Mortgagee may elect to conduct its own defense through counsel selected by
Mortgagee and at the cost and expense of Mortgagor.
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(c) As used in this Agreement, the term "Environmental Damages"
means all claims, demands, liabilities (including strict liability), losses,
damages (including consequential damages), causes of action, judgments,
penalties, fines, costs and expenses (including fees, costs and expenses of
attorneys, consultants, contractors, experts and laboratories), of any and every
kind or character, contingent or otherwise, matured or unmatured, known or
unknown, foreseeable or unforeseeable, made, incurred, suffered, brought, or
imposed at any time and from time to tune, whether before or after the Release
Date (hereinafter defined) and arising in whole or in part from:
(1) the presence of any Hazardous Material on the Mortgaged
Property, or any escape, seepage, leakage, spillage,
emission, release, discharge or disposal of any Hazardous
Material on or from the Mortgaged Property, or the migration
or release or threatened migration or release of any
Hazardous Material to, from or through the Mortgaged
Property, on or before the Release Date; or
(2) any act, omission, event or circumstance existing or
occurring in connection with the handling, treatment,
containment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Material which is at
any time on or before the Release Date present on the
Mortgaged Property; or
(3) the breach of any representation, warranty, covenant or
agreement contained in this Agreement because of any event
or condition occurring or existing on or before the Release
Date; or
(4) any violation on or before the Release Date, of any
Environmental Requirement in effect on or before the Release
Date, regardless of whether any act, omission, event or
circumstance giving rise to the violation constituted a
violation at the time of the occurrence or inception of such
act, omission, event or circumstance; or
(5) any Environmental Claim, or the filing or imposition of any
environmental lien against the Mortgaged Property, because
of, resulting from, in connection with, or arising out of
any of the matters referred to in SUBPARAGRAPHS (1) through
(4) preceding;
and regardless of whether any of the foregoing subparagraphs (1) through (5) was
caused by a Mortgagor or a tenant or subtenant, or a prior owner of the
Mortgaged Property or its tenant or subtenant, or any third party, including but
not limited to (i) injury or damage to any person, property or natural resource
occurring on or off of the Mortgaged Property, including but not limited to the
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cost of demolition and rebuilding of any improvements on real property; (ii) the
investigation or remediation of any such Hazardous Material or violation of
Environmental Requirement, including but not limited to the preparation of any
feasibility studies or reports and the performance of any cleanup, remediation,
removal, response, abatement, containment, closure, restoration, monitoring or
similar work required by any Environmental Requirement or necessary to have full
use and benefit of the Mortgaged Property as contemplated by the Loan Documents
(including any of the same in connection with any foreclosure action or transfer
in lieu thereof); (iii) all liability to pay or indemnify any person or
governmental authority for costs expended in connection with any of the
foregoing; (iv) the investigation and defense of any claim, whether or not such
claim is ultimately defeated; and (v) the settlement of any claim or judgment.
(d) As used in this Agreement, the term "Release Date" means the
earlier of the following three dates: (i) the date on which the indebtedness and
obligations secured by the Amended and Restated Mortgage have been paid and
performed in full and the Amended and Restated Mortgage has been released; or
(ii) the date on which the lien of the Amended and Restated Mortgage is fully
and finally foreclosed or a conveyance by deed in lieu of such foreclosure is
fully and finally effective and possession of the Mortgaged Property has been
given to and accepted by the purchaser or grantee free of occupancy and claims
to occupancy by Mortgagor and their heirs, devisees, representatives, successors
and assigns; or (iii) full, final and irrevocable satisfaction of this Amended
and Restated Mortgage by means of the Satisfaction Payment pursuant to and in
accordance with Section 2.2 above, but only after recordation of a satisfaction
of this Mortgage in the Public Records of Orange County, Florida; provided that,
if such payment, performance, release, foreclosure or conveyance is challenged,
in bankruptcy proceedings or otherwise, the Release Date shall be deemed not to
have occurred until such challenge is validly released, dismissed with prejudice
to Mortgagee's satisfaction or otherwise barred by law from further assertion to
Mortgagee's satisfaction and until such dismissal or bar occurs to Mortgagee's
satisfaction, all provisions of this Section 5.17 shall remain in full force and
effect.
5.18 Intentionally Omitted.
5.19 Intentionally Omitted.
5.20 Further Assurances. Mortgagor, at its sole expense, upon the
request of Mortgagee, shall execute, acknowledge and deliver such further
instruments and do such further acts as may, in the opinion of the Mortgagee, be
necessary, desirable, or proper to carry out more effectively the purpose of
this Amended and Restated Mortgage and to subject to the lien hereof any
property intended by the terms hereof to be covered hereby, including, without
limitation, any proceeds, renewals, additions, substitutions, replacements,
products, betterments, accessions and appurtenances thereto and thereof.
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5.21 Junior Mortgage(s) and Rights of Mortgagee.
(a) Mortgagor shall, with respect to any Junior Mortgage, (i)
promptly observe and perform all of the covenants and conditions contained in
the Junior Mortgage, (ii) intentionally omitted, (iii) promptly notify Mortgagee
in writing upon receipt by Mortgagor of any notice that Mortgagor is in default
under the Junior Mortgage or that an event has occurred which with due notice or
the lapse of time, or both, would constitute a default under the Junior
Mortgage, and to promptly cause a copy of each such notice given by the holder
thereof to be delivered to Mortgagee, and (iv) from time to time upon demand of
Mortgagee submit evidence to Mortgagee that Mortgagor has maintained and is
maintaining the Junior Mortgage in good standing. Upon receipt by Mortgagee of
any such aforesaid notice, Mortgagee may rely thereon even though the existence
of such default or the nature thereof may be questioned or denied by Mortgagor
or by any party on behalf of Mortgagor.
(b) If Mortgagor fails to perform any condition, covenant, or term of
the Junior Mortgage, then Mortgagee may on behalf of Mortgagor, but without
obligation to do so, and without notice to and demand upon Mortgagor, and
without releasing Mortgagor from any Obligation and without waiving any Event of
Default hereunder, take any action Mortgagee deems necessary or desirable to
prevent or cure any such default by Mortgagor, including, but without
limitation, the right to pay any and all payments of principal and interest,
insurance premiums, taxes and assessments and other sums due or to become due
under the Junior Mortgage. Mortgagor hereby expressly grants to Mortgagee and
agrees that Mortgagee and its agents shall have the absolute and immediate right
to enter upon the Land and the Improvements or any part thereof to such extent
and as often as Mortgagee in its sole discretion deems necessary or desirable in
order to prevent or cure any such default by Mortgagor. All payments and all
costs and expenses incurred by Mortgagee in connection with any such prevention
or cure (including, without limitation, reasonable attorneys' fees and
expenses), together with interest thereon at the Default Rate from the date
incurred by Mortgagee, shall be secured by this Amended and Restated Mortgage
and shall be due and payable by Mortgagor immediately, whether or not there be
notice, demand, an attempt to collect same, or suit pending.
(c) Nothing in this Section shall in any manner be construed as
consent by Mortgagee to the further encumbering or mortgaging of the Mortgaged
Property.
5.22 Financing Statements. Mortgagor shall execute and deliver to
Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements, continuation statements, and such further assurances as Mortgagee
may from time to time consider reasonably necessary to create, perfect, preserve
and maintain in full force and effect Mortgagee's lien upon the Fixtures,
Leases, Rents and Personal Property; and, Mortgagee, at the expense of
Mortgagor, may cause such statements and assurances to be recorded and
re-recorded, filed and re-filed, in the name of Mortgagor, and Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, which appointment is coupled with an interest, with full power
of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to execute and file any
and all financing statements.
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5.23 Intentionally Omitted.
5.24 Hazardous Material.
(a) Mortgagor shall immediately notify Mortgagee orally and in
writing (i) if Mortgagor becomes aware of the presence of any Hazardous Material
or other environmental problem or liability on, in, under, released from or
associated with the Mortgaged Property, or (ii) if an Environmental Claim is
then existing with respect to the Mortgaged Property. Mortgagor shall forthwith
transmit to Mortgagee all information it has received with respect to the
Environmental Claim.
(b) Mortgagor shall, at its own cost and expense, take any action
necessary or advisable for the cleanup of any Hazardous Material on, in, under,
released from or associated with the Mortgaged Property, including any removal,
containment or remedial actions in accordance with all applicable Environmental
Laws, and shall pay or cause to be paid all cleanup, administrative, enforcement
and other costs, expenses or fines which may be asserted against Mortgagor,
Mortgagee, the Mortgaged Property, or any other Person in connection therewith.
(c) Mortgagee shall have the right but not the obligation, and
without any limitation of Mortgagee's other rights under this Amended and
Restated Mortgage, to enter onto the Mortgaged Property or to take any action as
it deems necessary or advisable to cleanup, remove, resolve or minimize the
impact of, or otherwise deal with, any Hazardous Material or any Environmental
Claim following receipt of any notice from any Person or Governmental Authority
asserting the existence of any Hazardous Material or an Environmental Claim
pertaining to the Mortgaged Property or any part thereof which, if true, could
result in an order, suit or other action against Mortgagor or Mortgagee which,
in the sole opinion of Mortgagee, could jeopardize Mortgagee's security under
this Amended and Restated Mortgage. All Costs and expenses incurred by Mortgagee
in the exercise of any such rights shall be secured by this Amended and Restated
Mortgage and shall be payable by Mortgagor upon demand.
(d) If an Environmental Claim is then outstanding or Mortgagee
otherwise has reason to believe the Mortgaged Property is not in compliance with
all Environmental Laws, Mortgagor shall, within thirty (30) days of Mortgagee's
written request, cause to be prepared an environmental assessment (as
hereinafter defined) of the Mortgaged Property including Hazardous Material
waste management practices and Hazardous Material waste disposal sites thereon.
As used herein, the term "Environmental Assessment" means a report (including
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all drafts thereof) of an environmental assessment of the Mortgaged Property of
such scope (including but not limited to the taking of soil borings and air and
groundwater samples and other above and below ground testing) as Mortgagee may
request by a consulting firm acceptable to Mortgagee, made in accordance with
Mortgagee's established guidelines and at Mortgagor's sole cost and expense.
Should Mortgagor fail to provide such Environmental Assessment within said
thirty (30) day period, Mortgagee shall have the right, but not the obligation,
to retain an environmental consultant to perform and prepare same. All costs and
expenses incurred by Mortgagee in the exercise of such rights shall be secured
by this Amended and Restated Mortgage and shall be payable by Mortgagor to
Mortgagee upon demand.
5.25 Financial Reports, Etc. Mortgagor shall, at Mortgagor's sole
cost and expense, provide Mortgagee with any financial statements, financial
reports, appraisals or other documentation with respect to the Mortgaged
Property or with respect to Mortgagor and relating in any way to the Mortgaged
Property or Mortgagor's interest therein, if required from time to time by any
Governmental Authority having regulatory authority over Mortgagee. Such
information shall be provided by Mortgagor within thirty (30) days after written
request from Mortgagee.
5.26 Intentionally Omitted.
5.27 Reappraisal of Mortgaged Property. Mortgagee may obtain from
time to time, an appraisal of all or any part of the Mortgaged Property prepared
in accordance with written instructions from Mortgagee by a third-party
appraiser engaged directly by Mortgagee. Each such appraiser and appraisal shall
be satisfactory to Mortgagee (including satisfaction of applicable regulatory
requirements). The cost of any such appraisal shall be borne by BT Orlando if
such appraisal is the first appraisal in any calendar year and shall be borne by
BT Orlando in all events if Mortgagee obtains such appraisal after the
occurrence of an Event of Default. Such cost is due and payable by BT Orlando on
demand and shall be secured by the Loan Documents.
5.28 Performance of Loan Documents. BT Orlando shall duly and
punctually perform all covenants, terms and agreements expressed as binding upon
it under all of the Loan Documents. BT Orlando executes this Amended and
Restated Mortgage for the purpose of acknowledging and agreeing to perform its
obligations under the Loan Documents and the Obligations; BT Orlando has no
ownership interest in the Land. Thackeray shall duly and punctually perform all
covenants, terms and agreements expressed as binding upon it under this Amended
and Restated Mortgage and under the Thackeray Environmental Indemnity Agreement
5.29 Performance of Other Agreements. Mortgagor shall duly and
punctually perform all covenants, terms and agreements expressed as binding upon
it under any Permitted Title Exception, or any other agreement of any nature
whatsoever binding upon it with respect to the Mortgaged Property.
5.30 Intentionally Omitted.
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5.31 Swap Agreements or Interest Rate Protection Agreements. BT
Orlando shall duly and punctually perform all covenants, terms and agreements
expressed as binding upon it under any Swap Agreements or Interest Rate
Protection Agreements. BT Orlando acknowledges that its obligations under any
Swap Agreements or Interest Rate Protection Agreement are obligations secured by
this Mortgage. Further, Mortgagor, or BT Orlando, as applicable, acknowledges
and agrees that the occurrence of any event of default under any Swap Agreements
or Interest Rate Protection Agreement shall be a default hereunder, and vice
versa.
ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations, Etc. Mortgagor shall not use the Mortgaged
Property or allow the same to be used or occupied for any unlawful purpose or in
violation of any Governmental Requirement or restrictive covenant covering,
affecting or applying to the ownership, use or occupancy thereof, commit or
permit or suffer any act to be done or any condition to exist on the Mortgaged
Property or any article to be brought thereon that may be dangerous, or that may
in any way increase any ordinary fire or other hazard, unless safeguarded as
required by law, or that may, in law, constitute a nuisance, public or private.
6.2 Care of the Mortgaged Property.
(a) Mortgagor shall not commit or permit any waste, impairment, or
deterioration of the Mortgaged Property, or (except as may be provided for in
the Loan Agreement) perform any clearing, grading, filling or excavation of the
Mortgaged Property, or make or permit to be made to the Mortgaged Property any
alterations or additions that would have the effect of materially diminishing
the value thereof (in Mortgagee's sole opinion).
(b) Intentionally Omitted.
(c) Intentionally Omitted.
6.3 Other Liens and Mortgages.
(a) Mortgagor shall not, without the prior written consent of
Mortgagee, create or permit to be created or to remain, any mortgage, pledge,
construction lien or other lien, conditional sale or other title retention
agreement, encumbrance, claim, or charge on (whether prior or subordinate to the
lien of this Amended and Restated Mortgage or the other Loan Documents) the
Mortgaged Property or income therefrom, other than this Amended and Restated
Mortgage, the other Loan Documents and the Permitted Title Exceptions. Any
transaction prohibited under this Section shall be null and void.
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(b) Mortgagor shall not, without the prior written consent of
Mortgagee, (i) enter into any agreement either oral or in writing, whereby any
permitted Junior Mortgage is modified or amended in any manner whatsoever, (ii)
permit the release of any guarantor or modification of any guaranty affecting
any permitted Junior Mortgage, or (iii) incur any additional indebtedness
secured thereby.
(c) Mortgagor shall not directly or indirectly, take, acquire, or
permit to be taken or acquired by any other party, any interest whatsoever in
any permitted Junior Mortgage without the prior written consent of Mortgagee,
which consent may be granted or denied by Mortgagee in its sole discretion.
6.4 Transfer of Mortgaged Property. Mortgagor shall not sell, convey,
or transfer or permit to be sold, conveyed or transferred any interest in the
Mortgaged Property or any part thereof. A contract to deed or agreement for
deed, or an assignment, pledge, or encumbrance of a beneficial interest in any
land trust, or a lease for all or substantially all of the Land or Improvements
shall constitute a transfer prohibited by the provisions of this Section and
shall be null and void.
6.5 Intentionally Omitted.
6.6 Intentionally Omitted.
6.7 Mortgagor's Certificate of Incorporation. Mortgagor shall not,
without the prior written consent of Mortgagee, materially amend its articles of
incorporation its by-laws in any manner that would materially adversely affect
Mortgagee's rights or security interest hereunder.
6.8 Intentionally Omitted.
6.9 Environmental Contamination/Hazardous Material. Mortgagor and the
Mortgaged Property shall at all times remain in full compliance with all
Environmental Laws. Mortgagor shall not, nor permit any other person to
manufacture, process, distribute, use, transport, handle, treat, store, dispose,
emit, discharge, leak, spill or release any Hazardous Material on, in, under or
from the Mortgaged Property in violation of any Environmental Law.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
7.1 Events of Default. An "Event of Default", as used in this Amended
and Restated Mortgage, shall occur at any time or from time to time:
(a) Failure to Pay. If any Obligation or any installment thereof is
not paid within five (5 )calendar days after the date such Obligation or
installment is due and payable; provided, however, that the failure to pay all
or any portion of principal or interest or the prepayment fee, if any, or any
other fee or other sums due Mortgagee on the maturity date of the Note or any
other Loan Document shall immediately constitute an Event of Default under this
subsection without any grace period;
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(b) Failure to Perform. If any non-monetary Obligation is not duly
and promptly performed or is violated and the same is not cured within fifteen
(15) business days after written notice by Mortgagee to Mortgagor of any such
default; provided, however, if such failure to perform is not reasonably
susceptible to cure within said fifteen (15) business days, such cure period
shall be extended an additional fifteen (15) business days so long as Mortgagor
has commenced cure within said initial fifteen (15) business days and thereafter
diligently prosecutes such cure to completion and such cure in any event is
effected within forty-five (45) calendar days after the initial written notice
from Mortgagee of such Event of Default;
(c) False Representation. If any representation or warranty made in
any Loan Document by or on behalf of Mortgagor or any Guarantor is at any time
false, misleading, or if any such representation or warranty is breached;
(d) Judgment. If a final judgment for the payment of money is
rendered against Mortgagor and the same remains unsatisfied except for such
period of time as execution on the judgment is effectively stayed;
(e) Voluntary Bankruptcy, Etc. If Mortgagor or BT Orlando or
Guarantor (i) is voluntarily adjudicated a bankrupt or insolvent, (ii) seeks or
consents to the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) files a petition seeking relief, including
reorganization, arrangement or similar relief, under the present Bankruptcy Code
or other similar present or future applicable laws of the United States or any
state or any other competent jurisdiction, (iv) makes a general assignment for
the benefit of creditors or (v) admits in writing its inability to pay its debts
as they mature;
(f) Involuntary Bankruptcy, Etc. If a receiver or trustee is
appointed for Mortgagor or Guarantor or for all or any part of the Mortgaged
Property without Mortgagor's consent and such appointment is not vacated within
sixty (60) days, or if a petition is filed against Mortgagor seeking relief,
including reorganization, arrangement or similar relief, under the present
Bankruptcy Code or other similar present or future applicable laws of the United
States or any state or other competent jurisdiction, and such petition is not
dismissed within sixty (60) days after the filing thereof;
(g) Dissolution. If Mortgagor or BT Orlando or Guarantor voluntarily
or involuntarily dissolves or liquidates;
(h) Intentionally Omitted.
(i) Intentionally Omitted.
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(j) Default by Guarantor. With respect to the Loan secured hereby, if
any Guarantor fails to duly pay or perform any covenant, term, provision, or
condition of the Guaranty; or fails to duly pay or perform any and all
indebtedness, liabilities and obligations (whether joint or several, direct or
indirect, absolute or contingent, liquidated or unliquidated, matured or
unmatured with respect to the Loan secured hereby) of any Guarantor to Mortgagee
or to any of Mortgagee's affiliates, whether now existing or hereafter created
or arising or now owned or howsoever hereafter acquired by Mortgagee or by any
of Mortgagee's affiliates (subject to any notice or cure period requirements, if
any, set forth in the applicable Guaranty);
(k) With respect to the Loan secured hereby, if any Guarantor fails
to duly pay or perform any and all indebtedness, liabilities and obligations
(whether joint or several, direct or indirect, absolute or contingent,
liquidated or unliquidated, matured or unmatured with respect to the Loan
secured hereby) of any Guarantor to Mortgagee or to any of Mortgagee's
affiliates, whether now existing or hereafter created or arising or now owned or
howsoever hereafter acquired by Mortgagee or by any of Mortgagee's affiliates
(subject to any notice or cure period requirements, if any, set forth in the
applicable Guaranty);
(l) Default Under Loan Documents. If any default occurs under any of
the other Loan Documents or if any obligation of BT Orlando or Guarantor under
any of the other Loan Documents is not fully performed;
(m) Foreclosure of Other Liens. If the holder of any mortgage or
other lien on the Mortgaged Property, whether a Permitted Title Exception or not
(without hereby implying Mortgagee's consent to any such mortgage or other lien)
institutes foreclosure or other proceedings for the enforcement of any of its
remedies thereunder;
(n) Notice Limiting Future Advances. If Mortgagor, pursuant to
Florida Statutes 697.04(l)(b) as amended from time to time, files for record a
notice limiting the maximum amount which may be secured by this Amended and
Restated Mortgage;
(o) Default Under BT Orlando Mortgage or Junior Mortgage, not
including Junior Mortgage in favor of Canyon. If any default or any event of
default occurs under the BT Orlando Mortgage or any permitted Junior Mortgage
(except for the Junior Mortgage in favor of Canyon for which a default under
same shall not be a default hereunder) whether or not foreclosure or other
proceedings have been instituted thereunder; or
(p) Intentionally Omitted.
7.2 Cure Periods. Notwithstanding any thing to the contrary set forth
herein or in the Other Loan Documents, to the extent the Junior Mortgage or the
Junior Loan Documents provide for shorter notice and/or cure periods, such
shorter notice and cure periods shall apply hereunder just as if expressly set
forth herein, but this section shall not be interpreted or construed to require
any notice or cure periods merely because the Junior Mortgage or the Junior Loan
Documents contain notice and/or cure provisions.
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ARTICLE VIII
RIGHTS AND REMEDIES
-------------------
8.1 Remedies. If an Event of Default shall have occurred, Mortgagee
may, at its option, exercise any, some or all of the following remedies,
concurrently or consecutively:
(a) Acceleration. Mortgagee may declare all of the unpaid
Obligations, together with all accrued interest thereon, to be due and payable
without notice or demand which are hereby expressly waived, and upon such
declaration all such Obligations shall immediately become due and payable as
fully and to the same effect as if the date of such declaration were the date
originally specified for the full payment or maturity thereof.
(b) Mortgagee's Right to Enter and Take Possession, Operate and Apply
Income.
(i) Mortgagee may demand that Mortgagor surrender the actual
possession of the Mortgaged Property and upon such demand, Mortgagor shall
forthwith surrender same to Mortgagee and, to the extent permitted by law,
Mortgagee itself, or by such officers or agents as it may appoint, may enter and
take possession of all of the Mortgaged Property and may exclude Mortgagor and
its agents and employees wholly therefrom.
(ii) If Mortgagor shall for any reason fail to surrender or
deliver the Mortgaged Property or any part thereof after Mortgagee's demand,
Mortgagee may obtain a judgment or order conferring on Mortgagee the right to
immediate possession or requiring the Mortgagor to deliver immediate possession
to Mortgagee, to the entry of which judgment or decree the Mortgagor hereby
specifically consents.
(iii) Mortgagee may from time to time: (A) hold, use, operate,
manage and control the Mortgaged Property; (B) make all reasonably necessary
maintenance and repairs, thereto and thereon; (C) insure or keep the Mortgaged
Property insured; (D) exercise all the rights and powers of the Mortgagor in its
name or otherwise with respect to the same; and (E) enter into agreements with
others (including, without limitation, new Leases or amendments, extensions, or
cancellations to existing Leases) all as Mortgagee from time to time may
determine in its sole discretion. Mortgagor hereby constitutes and irrevocably
appoints Mortgagee its true, and lawful attorney-in-fact, which appointment is
coupled with an interest, with full power of substitution, and empowers said
attorney or attorneys in the name of Mortgagor, but at the option of said
attorney-in-fact, to do any and all acts and execute any and all agreements that
Mortgagee may deem necessary or proper to implement and perform any and all of
the foregoing.
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(iv) The Mortgagee may, with or without taking possession of the
Mortgaged Property as hereinabove provided, collect and receive all the Rents
therefrom, including those past due as well as those accruing thereafter, and
shall apply the monies so received first, to the payment of all costs and
expenses (including, without limitation, costs of arbitration, reasonable
attorneys' fees and expenses) incurred by Mortgagee and its agents in connection
with the collection of same, whether or not in possession of the Mortgaged
Property, and second, in such order as Mortgagee may elect, to the payment of
the Obligations.
(c) Proceedings To Recover Sums Due.
(i) If any installment or part of any Obligation shall fail to
be paid when due or if Mortgagor shall fail to discharge any of its obligations
under the Loan Documents or the Thackeray Documents, Mortgagee shall be entitled
to xxx for and to recover judgment against BT Orlando for the amount so due
under the Obligations and/or against Mortgagor as to sums due under the Loan
Documents and the Thackeray Obligations (but with respect to Mortgagor only as
to sums due from Mortgagor, not as to sums due from BT Orlando) together with
all costs and expenses (including, without limitation, costs of arbitration,
reasonable attorneys' fees and expenses) incurred by Mortgagee in connection
with such proceeding, together with interest thereon at the Default Rate from
the date incurred by Mortgagee. Any such judgment against Mortgagor or BT
Orlando, as applicable, shall bear interest at the Maximum Rate. All such costs
and expenses shall be secured by this Amended and Restated Mortgage and shall be
due and payable immediately.
(ii) If BT Orlando shall fail to pay upon the Mortgagee's
demand, after acceleration as provided herein all of the unpaid Obligations,
together with all accrued interest thereon, or if Mortgagor shall fail to
discharge any of the Thackeray Obligations, Mortgagee shall be entitled to xxx
for and to recover judgment against BT Orlando or Mortgagor, as the case may be,
for the entire amount so due and unpaid together with all costs and expenses
(including, without limitation, costs of arbitration, reasonable attorneys' fees
and expenses) incurred by Mortgagee in connection with such proceedings,
together with interest thereon at the Default Rate from the date incurred by
Mortgagee. Any such judgment against BT Orlando, or Mortgagor, as the case may
be, shall bear interest at the Maximum Rate. All such costs and expenses shall
be secured by this Amended and Restated Mortgage and shall be payable by BT
Orlando or Mortgagor, as the case may be, immediately. Mortgagee's right under
this Sub-section (ii) may be exercised by Mortgagee either before, after or
during the pendency of any proceedings for the enforcement of this Amended and
Restated Mortgage, including appellate proceedings.
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(iii) No recovery of any judgment as provided in Subsections (1)
and (ii) above and no attachment or levy of any execution upon any of the
Mortgaged Property or any other property shall in anyway affect the lien of this
Amended and Restated Mortgage upon the Mortgaged Property or any part thereof,
or any lien, rights, powers, or remedies of Mortgagee hereunder, but such lien,
rights, powers and remedies shall continue unimpaired as before.
(d) Foreclosure.
(i) Mortgagee may institute proceedings for the partial or
complete foreclosure of this Amended and Restated Mortgage and Mortgagee may,
pursuant to any final judgment of foreclosure, sell the Mortgaged Property as an
entirety or in separate lots, units, or parcels.
(ii) In case of a foreclosure sale of all or any part of the
Mortgaged Property, the proceeds of sale shall be applied in accordance with
Section 8.8 hereof, and the Mortgagee shall be entitled to seek a deficiency
judgment against the Mortgagor to enforce payment of any and all obligations
then remaining due and unpaid under the Thackeray Documents, together with
interest thereon, and to recover a judgment against the Mortgagor thereof, which
judgment shall beat interest at the Maximum Rate, except that Mortgagor shall
not be responsible for any deficiency under the Note.
(iii) The Mortgagee is authorized to foreclose this Amended and
Restated Mortgage subject to the rights of any tenants of the Mortgaged
Property, or Mortgagee may elect which tenants Mortgagee desires to name as
parties defendant in such foreclosure and failure to make any such tenants
parties defendant to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted by the Mortgagor to be, a defense to any
proceedings instituted by the Mortgagee to collect the unpaid Obligations or to
collect any deficiency authorized under Section 8.l(d)(ii) above and under
10.14 below remaining unpaid after the foreclosure sale as set forth in Section
8.1(d)(ii) above.
(e) Receiver. Mortgagee may apply to any court of competent
jurisdiction to have a receiver appointed to enter upon and take possession of
the Mortgaged Property, collect the Rents therefrom and apply the same as the
court may direct, such receiver to have all of the rights and powers permitted
under the laws of the State of Florida. The right of the appointment of such
receiver shall be a matter of strict right without regard to the value or the
occupancy of the Mortgaged Property or the solvency or insolvency of Mortgagor.
The expenses, including receiver's fees, attorneys' fees, costs and agent's
commission incurred pursuant to the powers herein contained, together with
interest thereon at the Default Rate, shall be secured hereby and shall be due
and payable by Mortgagor immediately without notice or demand. Notwithstanding
the appointment of any receiver or other custodian, Mortgagee shall be entitled
as pledgee to the possession and control of any cash or deposits at the time
held by, payable, or deliverable under the terms of this Amended and Restated
Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the
unpaid Obligations against any such cash or deposits in such order as Mortgagee
may elect.
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(f) Remedies as to Personal Property. Mortgagee may exercise any or
all of its rights and remedies under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida or other applicable law as well
as all other rights and remedies possessed by Mortgagee, all of which shall be
cumulative. Mortgagee is hereby authorized and empowered to enter the Mortgaged
Property or other place where the Personal Property may be located without legal
process, and to take possession of the Personal Property without notice or
demand, which hereby are waived to the maximum extent permitted by the laws of
the State of Florida. Upon demand by Mortgagee, Mortgagor shall make the
Personal Property available to Mortgagee at a place reasonably convenient to
Mortgagee. Mortgagee may sell at one or more public or private sales and for
such price as Mortgagee may deem commercially reasonable, any and all of the
Personal Property secured by this Amended and Restated Mortgage, and any other
security or property held by Mortgagee and Mortgagee may be the purchaser of any
or all of the Personal Property.
(g) Other. Mortgagee may institute and maintain any suits and
proceedings as the Mortgagee may deem advisable (i) to prevent any impairment of
the Mortgaged Property by any acts which may be unlawful or in violation of this
Amended and Restated Mortgage, (ii) to preserve or protect its interest in the
Mortgaged Property, and (iii) to restrain the enforcement of or compliance with
any Governmental Requirement that may be unconstitutional or otherwise invalid,
if the enforcement of or compliance with such Governmental Requirement might
impair the security hereunder or be prejudicial to the Mortgagee's interest.
8.2 Remedies Cumulative and Concurrent. No right, power or remedy of
Mortgagee as provided in the Note, this Amended and Restated Mortgage, the
Guaranty, or the other Loan Documents is intended to be exclusive of any other
right, power, or remedy of Mortgagee, but each and every such right, power and
remedy shall be cumulative and concurrent and in addition to any other right,
power or remedy available to Mortgagee now or hereafter existing at law or in
equity and may be pursued separately, successively or together against Mortgagor
(but only those remedies in the Thackeray Documents as to Mortgagor), BT
Orlando, any Guarantor, or any endorser, co-maker, surety or guarantor of the
Obligations, or the Mortgaged Property or any part thereof, or any one or more
of them, at the sole discretion of Mortgagee. The failure of Mortgagee to
exercise any such right, power or remedy shall in no event be construed as a
waiver or release thereof.
8.3 Waiver, Delay or Omission. No waiver of any Event of Default
hereunder shall extend to or affect any subsequent or any other Event of Default
then existing, or impair any rights, powers or remedies consequent thereon, and
no delay or omission of Mortgagee to exercise any right, power or remedy shall
be construed to waive any such Event of Default or to constitute acquiescence
therein.
8.4 Credit of Mortgagee. To the maximum extent permitted by the laws
of the State of Florida, upon any sale made under or by virtue of this Article,
Mortgagee may bid for and acquire the Mortgaged Property, or any part thereof,
and in lieu of paying cash therefor may apply to the purchase price, any portion
of or all of the unpaid Obligations in such order as Mortgagee may elect
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8.5 Sale. Any sale or sales made under or by virtue of this Article
shall operate to divest all the estate, sight, title, interest, claim and demand
whatsoever at law or inequity, of the Mortgagor and all Persons, except tenants
pursuant to Leases approved by Mortgagee, claiming by, through or under
Mortgagor in and to the properties and rights so sold, whether sold to Mortgagee
or to others.
8.6 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition, seizure of the
Mortgaged Property by any Governmental Authority, or other judicial proceedings
affecting the Mortgagor, any Guarantor, any endorser, co-maker, surety, or
guarantor of the Obligations, or any of their respective properties, the
Mortgagee, to the extent permitted by law, shall be entitled to file such proofs
of claim and other documents as maybe necessary or advisable in order to have
its claim allowed in such proceedings for the entire unpaid Obligations at the
date of the institution of such proceedings, and for any additional amounts
which may become due and payable after such date.
8.7 Waiver of Redemption, Notice, Marshalling, Etc. Mortgagor hereby
waives and releases, for itself and anyone claiming through, by, or under it, to
the maximum extent permitted by the laws of the State of Florida:
(a) all benefit that might accrue to Mortgagor by virtue of any
present or future law exempting the Mortgaged Property, or any part of the
proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment,
(b) unless specifically required herein, all notices of default, or
Mortgagee's actual exercise of any option or remedy under the Loan Documents, or
otherwise, and
(c) any right to have the Mortgaged Property marshalled.
8.8 Application of Proceeds. The proceeds of any sale of all or any
portion of the Mortgaged Property shall be applied by Mortgagee first, to the
payment of receiver's fees and expenses, if any, and to the payment of all costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Mortgagee, together with interest thereon at the Default
Rate from the date so incurred, in connection with any entry, action or
proceeding under this Article and, second, in such order as Mortgagee may elect,
to the payment of the Obligations, then any balance shall be paid to Mortgagor;
provided, however, Mortgagor shall remain liable to Mortgagee for any difference
between the net proceeds of sale and amounts of the Obligations until all of the
Obligations have been paid in full.
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8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded
to enforce any right under any Loan Document and such proceedings shall have
been discontinued or abandoned for any reason, then except as may be provided in
any written agreement between Mortgagor and Mortgagee providing for the
discontinuance or abandonment of such proceedings, Mortgagor and Mortgagee shall
be restored to their former positions and the sights, remedies and powers of
Mortgagee shall continue as if no such proceedings had been instituted.
8.10 Mortgagee's Actions. Mortgagee may, at any time without notice
to any Person and without consideration, do or refrain from doing any or all of
the following actions, and neither the Mortgagor, any Guarantor, any endorser,
co-maker, surety or guarantor of the Obligations, nor any other Person
(hereinafter in this Section collectively referred to as the "Obligor") now or
hereafter liable for the payment and performance of the Obligations shall be
relieved from the payment and performance thereof, unless specifically released
in writing by Mortgagee: (a) renew, extend or modify (excepting increases in the
principal balance of the Note not resulting from Mortgagee expenditures to cure
Mortgagor or BT Orlando defaults under any Loan Document) the terms of the Note,
this Amended and Restated Mortgage, the Guaranty and the other Loan Documents,
or any of them, (b) forbear or extend the time for the payment or performance of
any or all of the Obligations; (c) unless expressly otherwise provided herein
apply payments by any Obligor to the reduction of the unpaid Obligations in such
manner, in such amounts, and at such times and in such order and priority as
Mortgagee may see fit; (d) release any Obligor, (e) substitute or release in
whole or in part the Mortgaged Property or any other collateral or any portion
thereof now or hereafter held as security for the Obligations without affecting,
disturbing or impairing in any manner whatsoever the validity and priority of
the lien of this Amended and Restated Mortgage upon the Mortgaged Property which
is not released or substituted, or the validity and priority of any security
interest of the Mortgagee in such other collateral which is not released or
substituted; (f) subordinate the lien of this Amended and Restated Mortgage or
the lien of any other security interest in any other collateral now or hereafter
held as security for the Obligations; (g) at the request of Mortgagor or after
an Event of Default join in the execution of a plat or replat of the Land; (h)
at the request of Mortgagor or after an Event of Default join in and consent to
the filing of a declaration of condominium or declaration of restrictive
covenants regarding all or any part of the Land; (i) at the request of Mortgagor
or after an Event of Default consent to the granting of any easement on the
Land; and (j) generally deal with any obligor or any other party as Mortgagee
may see fit.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Regulation of Mortgagee. Mortgagee is subject to
various Governmental Authorities and the laws, rules and regulations enacted,
adopted and promulgated by them. To the extent that Mortgagee's authority to
perform its obligations (if any) under this Amended and Restated Mortgage, now
or hereafter, may be limited or regulated by such Governmental Authorities,
Mortgagee is hereby excused from such performance,
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9.2 Mortgagee's Failure to Perform. If Mortgagee fails to perform its
obligations (if any) under this Amended and Restated Mortgage (except to the
extent excused therefrom as provided in Section 9.1 above), Mortgagor shall
notify Mortgagee in writing (the "Notice") within thirty (30) days after
Mortgagor's obtaining knowledge of such failure. Each such Notice shall describe
in detail the act or event constituting the non-performance by Mortgagee.
Mortgagee shall have thirty (30) days after its receipt of the Notice to cure
any such failure to perform, unless such cure can not be accomplished using
reasonable efforts within said thirty (30) day period, in which case Mortgagee
shall have such additional time as may be necessary, using reasonable efforts,
to cure such non-performance (the "Mortgagee Cure Period").
9.3 Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage
Mortgagee exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Mortgagee, the decision of
Mortgagee to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Mortgagee
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
9.4 Mortgagor's Rights and Remedies. The giving of the Notice and the
expiration of the Mortgagee Cure Period shall be conditions precedent to any
sight of the Mortgagor to bring an action against Mortgagee. Mortgagor hereby
expressly agrees that its sale remedy against Mortgagee in any such action shall
be that of specific performance.
ARTICLE X
MISCELLANEOUS
10.1 Maximum Rate of Interest. Nothing contained herein, in the Note,
or in any other Loan Document, or the Commitment, or in any instrument or
transaction related thereto, shall be construed or so operate as to require
Mortgagor or BT Orlando or any person liable for the payment of the Loan made
pursuant to the Note, or liable for the payment of any Obligations, to pay
interest, or any charge in the nature of interest, in an amount or at a rate
which exceeds the maximum rate of interest allowed by applicable law, as amended
from time to time. Should any interest or other charges in the nature of
interest received by Mortgagee or paid by Mortgagor or BT Orlando or any parties
liable for the payment of the Loan made pursuant to the Note, or liable for the
payment of any Obligations, exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, then such excess sum shall be
credited against the principal balance of the Note or the balance of the other
Obligations, as applicable, unless Mortgagor or BT Orlando or such other parties
liable for such payments, as applicable, shall notify the Mortgagee, in writing,
that Mortgagor or BT Orlando or such other party elects to have such excess sum
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returned to it forthwith, it being the intent of the parties hereto that under
no circumstances shall Mortgagor or BT Orlando or any parties liable for any of
the aforesaid payments be required to pay interest in excess of the maximum rate
of interest allowed by applicable law, as amended from time to time. The
Mortgagee may, in determining the maximum rate of interest allowed under
applicable law, as amended from time to time, take advantage of any state or
federal law, rule or regulation in effect from time to time which may govern the
maximum rate of interest which may be reserved, charged or taken.
10.2 Continuing Agreement. This Amended and Restated Mortgage and all
of the Mortgagor's representations, warranties and covenants herein, Mortgagee's
security interest in the Mortgaged Property and all of the rights, powers and
remedies of Mortgagee hereunder shall continue in full force and effect until
the earlier of Mortgagee's receipt of the Satisfaction Payment pursuant to and
in accordance with Section 2.2 or until all of the Obligations have been paid
and performed in full; until the earlier of Mortgagee's receipt of the
Satisfaction Payment pursuant to and in accordance with Section 2.2 or until
Mortgagee has no further obligation to make any advances under the Loan; and
until the earlier of Mortgagee's receipt of the Satisfaction Payment pursuant to
and in accordance with Section 2.2 or until Mortgagee, upon the request of the
Mortgagor, has executed a satisfaction of Amended and Restated Mortgage;
provided, however, that the indemnifications set forth in Article V of this
Amended and Restated Mortgage and the indemnifications and obligations described
in the other Thackeray Documents shall survive the satisfaction of this Amended
and Restated Mortgage.
10.3 Survival of Warranties and Covenants. The warranties,
representations, covenants and agreements set forth in this Amended and Restated
Mortgage shall survive the making of the Loan and the execution and delivery of
the Note, and shall continue in full force and effect until the earlier of
Mortgagee's receipt of the Satisfaction Payment pursuant to and in accordance
with Section 2.2 or until all of the Obligations shall have been paid and
performed in full.
10.4 No Representation By Mortgagee. By accepting or approving
anything required to be observed, performed or fulfilled, or to be given to
Mortgagee, pursuant to this Amended and Restated Mortgage, or the other Loan
Documents, or the Commitment, including, but not limited to, any officer's
certificate, balance sheet, statement, survey or appraisal, Mortgagee shall not
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation with respect thereto by Mortgagee.
10.5 Notice. All notices, demands, requests and other communications
required under this Amended and Restated Mortgage may be given orally (either in
person or by telephone if confirmed in writing within three (3) days
thereafter), by telex, telegram, or telecopy, or in writing delivered by hand or
mail and shall be conclusively deemed to have been received if delivered or
attempted to be delivered by United States first class mail, return receipt
requested, postage prepaid, addressed to the party for whom it is intended as
follows:
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If to Mortgagee:
Bank of America, NA.
000 Xxxxx Xxxxxx
XXX-x00-00.00
Xxxxxxxxx, XX 00000
Attn Loan Administration
If to Mortgagor:
Thackeray Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
With copy to:
(a) Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(b) BT Orlando Limited Partnership
000 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
(c) Xxxxx X. Xxxxxxx, Esquire
Xxxxxx & Xxxxx LLP
P.O. Box 4956
(Courier: 000 Xxxxx Xxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxx 32801-3373)
Xxxxxxx, XX 00000-0000
Any party may designate a change of address by written notice to the other
party, received by such other party at least ten (10) days before such change of
address is to become effective.
Notwithstanding anything to the contrary set forth herein, the
parties expressly acknowledge and agree that any requirement of notice to the
Mortgagor (if any) under this Mortgage shall be satisfied by notice sent to
Mortgagor to its address on the first page of this Mortgage and that while
Mortgagee agrees to use reasonable efforts to endeavor to send copies of notices
to the other parties noted in this Section 10.5 or elsewhere, failure or
omission to sand such copies shall not give rise to any liability on the part of
Mortgagee, or invalidate any notice to the Mortgagor, or give rise to any other
notice requirement or any cure period.
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10.6 Mortgagee's Right to Pay and Perform. If Mortgagor shall fail to
duly pay or perform any of the Thackeray Obligations required by this Amended
and Restated Mortgage, then at any time thereafter without notice to or demand
upon Mortgagor, and without waiving or releasing any right, remedy, or power of
Mortgagee, and without releasing any of the Obligations or any Event of Default,
Mortgagee may pay or perform such Thackeray Obligation for the account of and at
the expense of Mortgagor, and shall have the right to enter and to authorize
others to enter upon the Mortgaged Property for such purpose and to take all
such action thereon and with respect to the Mortgaged Property as may be
necessary or appropriate for such purpose. All payments made and all costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Mortgagee, together with interest thereon at the Default
Rate from the date incurred by Mortgagee shall be secured by this Amended and
Restated Mortgage and shall be due and payable by Mortgagor immediately, whether
or not there be notice, demand, an attempt to collect same, or suit pending.
10.7 Covenants Running With the Land. All covenants contained in this
Amended and Restated Mortgage shall be binding on the Mortgagor and shall run
with the Land.
10.8 Successors and Assigns. All of the terms of this Amended and
Restated Mortgage shall apply to and be binding upon, and inure to the benefit
of, the heirs, devisees, personal representatives, successors and assigns of
Mortgagor and Mortgagee, respectively, and all persons claiming under or through
them.
10.9 Invalidity.
(a) If any one or more of the provisions contained in this Amended
and Restated Mortgage is declared or found by a court of competent jurisdiction
to be invalid, illegal, or unenforceable, such provision or portion thereof
shall be deemed stricken and severed and the remaining provisions hereof shall
continue in full force and effect.
(b) If any one or more of the Obligations is declared or found by a
court of competent jurisdiction to be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining Obligations shall
continue in full force and effect.
10.10 Modification. No agreement unless in writing and signed by an
authorized officer of Mortgagee and no course of dealing between the parties
hereto shall be effective to change, waive, terminate, modify, discharge, or
release in whole or in part any provision of this Amended and Restated Mortgage.
No waiver of any rights or powers of Mortgagee or consent by it shall be valid
unless in writing signed by an authorized officer of Mortgagee and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
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10.11 Applicable Law. This Amended and Restated Mortgage shall be
construed, interpreted, enforced and governed by and in accordance with the laws
of the State of Florida (excluding the principles thereof governing conflicts of
law), and federal law, in the event federal law permits a higher rate of
interest than Florida law.
10.12 Intentionally Deleted.
10.13 Strict Performance. It is specifically agreed that time is of
the essence as to all matters provided for in this Amended and Restated Mortgage
and that no waiver of any Obligation hereunder or secured hereby shall at any
time thereafter be held to be a waiver of the Obligations.
10.14 Limited Recourse. The Obligations, excepting those of Mortgagor
under the Thackeray Documents, shall be non-recourse against Mortgagor and
Mortgagee shall look solely to the Mortgaged Property to satisfy the
Obligations, excepting losses, damages, obligations, costs and/or expenses
Mortgagee incurs due to Mortgagor's breach of Mortgagor's obligations (not the
Obligations of BT Orlando) under the Thackeray Documents; provided, nothing
herein contained shall limit Mortgagee's right or remedies or recourse against
BT Orlando and against Guarantor under any Loan Document.
10.15 Exculpation of Officers, Directors or Shareholders of
Mortgagor. It is specifically agreed that under no circumstance shall any
officers, directors or shareholders of Mortgagor be personally liable for any
warranties, representations, claims, damages or liability with respect to the
terms of the Amended and Restated Mortgage, it being understood that such
liability shall be solely that of Mortgagor.
10.16 MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS AMENDED AND RESTATED MORTGAGE OR ANY RELATED AGREEMENTS OR
INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), TILE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL. ARBITRATION
AND MEDIATION SERVICES, INC. (J.A.M.S.), AM) THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL.
JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS AMENDED AND RESTATED MORTGAGE MAY BRING AN
ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF
ANY CONTROVERSY OR CLAIM TO WHICH THIS AMENDED AND RESTATED MORTGAGE APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
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(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
ORLANDO, ORANGE COUNTY, FLORIDA AND ADMINISTERED BY ENDISPUTE, INC., D/B/A
J.A.M.S/ENDISPUTE WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. ENDISPUTE IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF
SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(b) RESERVATIONS OF RIGHTS. NOTHING IN THIS AMENDED AND RESTATED
MORTGAGE SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
AMENDED AND RESTATED MORTGAGE; OR (II) BE A WAIVER BY THE MORTGAGEE OF THE
PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT
STATE LAW; OR (III) LIMIT THE RIGHT OF THE MORTGAGEE HERETO (A) TO EXERCISE SELF
HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST
ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR(C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF
OR THE APPOINTMENT OF A RECEIVER. THE MORTGAGEE MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS AMENDED AND RESTATED MORTGAGE. AT MORTGAGEE'S OPTION,
FORECLOSURE UNDER A DEED OF TRUST OR AMENDED AND RESTATED MORTGAGE MAY BE
ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE
DEED OF TRUST OR AMENDED AND RESTATED MORTGAGE, OR BY JUDICIAL SALE UNDER THE
DEED OF TRUST OR AMENDED AND RESTATED MORTGAGE, OR BY JUDICIAL FORECLOSURE.
NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
[Signature Page to Follow]
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IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the
day and year first above written.
---------------------------------------------------------
Thackeray Corporation, a Delaware corporation
("Mortgagor")
---------------------------------------------------------
---------------------------------------------------------
By:/s/ Xxxxx Xxxx
---------------------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
---------------------------------------------------------
---------------------------------------------------------
[CORPORATE SEAL]
---------------------------------------------------------
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IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the
day and year first above written.
---------------------------------------------------------
---------------------------------------------------------
BT ORLANDO LIMITED PARTNERSHIP
---------------------------------------------------------
By: BEF, Inc. its Administrative General Partner
---------------------------------------------------------
---------------------------------------------------------
By:/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------------------
Name: . Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
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