Purchase Money Real Estate Mortgage, Assignment, and Security Agreement - ACP-Atrium CG LP and The Wackenhut Corp.
PURCHASE MONEY
REAL ESTATE MORTGAGE, ASSIGNMENT,
AND SECURITY AGREEMENT
(The "Mortgage")
Effective Date: December 21, 1995
Mortgagor: ACP-Atrium CG, Limited Partnership,
a Florida limited partnership
3440 Hollywood Boulevard, #420
Hollywood, Florida 33021
Mortgagee: The Wackenhut Corporation
1500 San Remo Avenue
Coral Gables, FL 33143
Amount of purchase Nine Million and no/100 Dollars
money loan secured ($9,000,000.00)
hereby:
Land (description of See Exhibit A attached hereto and
real estate): incorporated
herein by reference.
1. MORTGAGE. In consideration of Ten Dollars ($10.00) and
other valuable consideration received by Mortgagor, the receipt and sufficiency
of which are hereby acknowledged, Mortgagor hereby grants, bargains, sells,
assigns, transfers, conveys and mortgages to Mortgagee, its successors and
assigns. to its own proper use and benefit forever, subject to the terms and
conditions of this Mortgage, the real estate described above as the Land,
together with:
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(a) Appurtenances. The benefit of all easements and
other rights of any nature whatsoever, if any, appurtenant to the Land or the
Improvements, or both, the benefit of all rights-of-way, strips and gores of
land, streets, alleys, passages, drainage rights, sanitary sewer and potable
water rights. storm water drainage rights, rights of ingress and egress to the
Land and all adjoining property, and any improvements of Mortgagor now or
hereafter located on any of such real property, interests, water rights and
powers, oil, gas, mineral and riparian and littoral rights, whether now
existing or hereafter arising, together with the reversion or reversions,
remainder or remainders, rents, issues, incomes and profits of any of the
foregoing (the "Appurtenances").
(b) Improvements. All buildings, structures,
betterments and other improvements of any nature now or hereafter situated in
whole or in part upon the Land or on the Appurtenances, regardless of whether
physically affixed thereto or severed or capable of severance therefrom (the
"Improvements").
(c) Tangible Property. All of Mortgagor's right, title
and interest, if any, in and to all fixtures, equipment and tangible personal
property of any nature whatsoever that is now or hereafter (i) attached or
affixed to the Land, the Appurtenances, or the Improvements, or (ii) situated
upon or about the Land, the Appurtenances and/or the Improvements, regardless
of whether physically affixed thereto or severed or capable of severance
therefrom, or (iii) used, regardless of where situated, if used, usable or
intended to be used, in connection with any present or future use or operation
of or upon the Land. The foregoing includes: all goods and inventory, all
heating, air conditioning, lighting, incinerating and power equipment; all
engines compressors, pipes, pumps, tanks, motors, conduits wiring, and
switchboards; all plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigerating, ventilating, and communications and public
address apparatus; all signage and recreational amenities including, without
limitation, swimming pools, exercise equipment, tennis courts, clubhouse
furnishings or saunas; all boilers, furnaces, oil burners, vacuum cleaning
systems, elevators and escalators; all stoves, ovens, ranges, disposal units,
dishwashers, water heaters, exhaust systems, refrigerators, cabinets, and
partitions; all rugs, draperies and carpets; all laundry equipment; all
building materials; all furniture (including, without limitation, any outdoor
furniture), furnishings, office equipment and office supplies; and all
additions, accessions, renewals, replacements and substitutions of any or all
of the foregoing. The property interests encumbered and described by this
Paragraph are called the "Tangible Property" in this Mortgage.
(d) Rents. All rents, issues, incomes and profits in
any manner arising from the Land, Improvements, Appurtenances or Tangible
Property, or any combination thereof, including Mortgagor's interest in and to
all leases of whatsoever kind or nature, licenses, franchises and concessions
of or relating to all or any portion of the Land, Appurtenances, Improvements
or Tangible Property, or the operation thereof, whether now existing or
hereafter made, including all amendments, modifications, replacements,
substitutions, extensions, renewals or consolidations thereof. The property
interests encumbered and described in this subparagraph are called the "Rents"
in this Mortgage.
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(e) Secondary Financing. Except as expressly permitted
pursuant to Paragraph 38 hereof, all of Mortgagor's right, power or privilege
to further encumber any of the Collateral described in this Paragraph 1, it
being intended by this provision to divest Mortgagor of the power to encumber
or to grant a security interest in any of the Collateral as security for the
performance of an obligation, except for "Permitted Encumbrances," as defined
in Paragraph 5 herein.
(f) Proceeds. All proceeds of the conversion,
voluntary, or involuntary, of any of the property encumbered by this Mortgage
into cash or other liquidated claims, or that are otherwise payable for injury
to or the taking or requisitioning of any such property, including all
judgments, settlements and insurance and condemnation proceeds as provided in
this Mortgage.
(g) Contract Rights. All of Mortgagor's right, title
and interest in and to any and all contracts or leases, written or oral,
express or implied, now existing or hereafter entered into or arising, in any
matter related to the improvement, use, operation, sale, conversion or other
disposition of any Interest in the Land, Appurtenances, Improvements, Tangible
Property or the Rents, or any combination thereof, including all tenant leases,
sales contracts, reservation deposit agreements, any and all deposits, prepaid
items, and due to become due thereunder; and including, without limitation,
contracts pertaining to maintenance, on-site security service, elevator
maintenance, landscaping services, building or project management, marketing,
leasing, sales and janitorial services; Mortgagor's interests as lessee in
equipment leases, including telecommunications, computers, vending machines,
model furniture, televisions, laundry equipment; and Mortgagor's interests in
construction contracts or documents (including architectural drawings and plans
and specifications relating to the Improvements), service contracts, use and
access agreements, advertising contracts and purchase orders. The property
interests encumbered and described in this Paragraph are called the "Contract
Rights" in this Mortgage. Notwithstanding the foregoing, Mortgagee will not be
bound by any of Mortgagor's obligations under any of the foregoing contracts
unless and until Mortgagee elects to assume any of such contracts or leases in
writing.
(h) Name. All right, title and Interest of Mortgagor in
and to all trade names, project names, logos, service marks, trademarks,
goodwill, and slogans now or hereafter used in connection with the operation of
the Mortgaged Property.
(i) Other Intangibles. All contract rights,
commissions, money, deposits, certificates of deposit, letters of credit,
documents, instruments, chattel paper, accounts, and general intangibles as
such term from time to time are defined in the Uniform Commercial Code as
adopted by the State of Florida (the "Uniform Commercial Code") in any manner
related to the construction, use, operation, sale, conversion or other
disposition (voluntary or involuntary) of the Land, Appurtenances,
Improvements, Tangible Property, or Rents, including all construction plans and
specifications, architectural plans, engineering plans and specifications,
permits, government or quasi-governmental approvals, licenses, developer
rights, vested rights under any Planned Unit Development or Development of
Regional Impact or other project, zoning, or land use approval, insurance
policies, rights of action and other choses in action.
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The Land Appurtenances, Improvements and Tangible Property are
collectively referred to as the "Mortgaged Property" in this Mortgage. The
portion of the property encumbered by this Mortgage that from time to time
consists of intangible personal property, except for the Rent, is called the
"Intangible Property" in this Mortgage. The Mortgaged Property, Rents,
Intangible Property and any other property interests encumbered hereby are
hereinafter referred to collectively as the "Collateral". Wherever used in
this Mortgage, the use of the terms, "Mortgaged Property," "Rents".
"Intangible Property," and "collateral" means and includes all or any portion
thereof applicable to the context.
Notwithstanding the grant of Mortgagor's interest in the Rents and
Contract Rights above, so long as no Default shall exist hereunder or under any
of the other Loan Documents, Mortgagor shall have a license to collect and
receive all incomes arising from the operation, ownership, and maintenance of
the Mortgaged Property, Rents and Contract Rights, but not more than one (1)
month prior to accrual.
2. SECURITY AGREEMENT. To the extent any of the Collateral
encumbered by this Mortgage from time to time constitutes personal property
subject to the provisions of the Uniform Commercial Code, this Mortgage
constitutes a "Security Agreement" for all purposes under the Uniform
Commercial Code. Without limitation, Mortgagee, at its election, upon the
occurrence of a Default under this Mortgage, will have all rights, powers,
privileges and remedies from time to time available to a secured party under
the provisions of the Uniform Commercial Code with respect to the Collateral.
The names and addresses of debtor and secured party are as shown for Mortgagor
and Mortgagee, respectively, on the signature pages hereof. The remedies for
any violation of the covenants, terms, and conditions of the security agreement
herein contained shall be (i) as prescribed herein, or (ii) as prescribed by
general law, or (iii) as prescribed by the specific statutory provisions now or
hereafter enacted and specified in the Uniform Commercial Code, all at
Mortgagee's sole election. Mortgagor and Mortgagee agree that the filing of
financing statement(s) in the records normally having to do with personal
property shall never be construed as in anywise derogating from or impairing
this declaration and hereby stated intention of Mortgagor and Mortgagee that
everything used in connection with the production of income from the Collateral
or adapted for use therein or which is described or reflected in this Mortgage,
is, and at all times and for all purposes and in all proceedings both legal or
equitable shall be, regarded as part of the real estate irrespective of whether
(i) any such item is physically attached to the Improvements, (ii) serial
numbers are used for the better identification of certain items capable of
being thus identified in a recital contained herein, or (iii) any such item is
referred to or reflected in any financing statement(s) so filed at any time.
Similarly, the mention in any financing statement of the rights in. or the
proceeds of, any fire, hazard or liability insurance policy, or any award in
eminent domain proceedings for a taking or for loss of value, or Mortgagor's
interest as lessor in any present or future lease, or rights to income growing
out of the use of the Mortgaged Property, whether pursuant to a lease or
otherwise, shall not be construed as altering any of Mortgagee's rights as
determined by this Mortgage, or otherwise available at law or in equity, or
impugning the priority of this Mortgage or the Loan Documents, or both, but
such mention in any financing statement is declared to be for Mortgagee's
protection if, as, and when any court holds that notice of Mortgagee's priority
of interest. to be effective against a particular class of
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persons, including the federal government and any subdivision or entities of
the federal government, must be perfected in the manner required by the Uniform
Commercial Code.
Mortgagor covenants and agrees that Mortgagor will furnish Mortgagee
with notice of any change in name, identity, or organizational structure,
mailing address, residences or principal place of business thirty (30) days
prior to the effective date of any such change. Mortgagor will promptly
execute any financing statements or other instruments deemed necessary by Bank
to prevent any filed financing statement from becoming misleading or losing its
perfected status or to reinstate any lapsed financing statement.
3. AFTER-ACQUIRED PROPERTY. Without the necessity of any
further act of Mortgagor or Mortgagee, the lien of and security interest
created by this Mortgage automatically will extend to and include (i) any and
all renewals, replacements, substitutions, accessions, proceeds, products,
additions or after-acquired property for or to the Collateral, and (ii) any and
all monies, proceeds and other property that from time to time, either by
delivery to Mortgagor or by any instrument (including this Mortgage) may be
subjected to such lien and security interest by Mortgagor or by anyone on
behalf of Mortgagor, or with the consent of Mortgagor, or which otherwise may
come into the possession or otherwise be subjected to the control of Mortgagee
or Mortgagor pursuant to this Mortgage or the other Loan Documents.
4. DEBT. Mortgagor is justly indebted to Mortgagee in the
principal amount of Nine Million Dollars ($9,000,000.00) as evidenced by that
certain Promissory Note of even date herewith made by Mortgagor payable to the
order of Mortgagee and maturing as stated in said Note, unless such maturity is
accelerated or extended (as provided in said Note), which Note, together with
any and all renewals, replacements, extensions, modifications, substitutions.
future advances, and any and all other certificates or evidence of indebtedness
evidenced by said Note is herein called the "Note".
Mortgagor's obligations described below are secured, among other
things, by the collateral described in this Mortgage. which term includes any
and all amendments, extensions, renewals, replacements, substitutions,
modifications and consolidations of this Mortgage, and may also from time to
time be secured by other collateral described in written documents. The
Mortgage and such other documents as may exist on the date hereof or may exist
hereafter are referred to as the "Security Documents," which term, as defined
in the Note, includes any and all financing statements, letters of credit,
assignments, agreements, supplements, and riders made and delivered in
connection with the Note and this Mortgage, and any and all amendments,
modifications, extensions, renewals, replacements, substitutions and
consolidations thereof or thereto. The Security Documents, the Note, and all
documents between Mortgagor and Mortgagee are referred to collectively as the
"Loan Documents" The Note, the Mortgage and the Loan Documents shall always be
taken and read together as constituting part of one transaction.
The obligations of Mortgagor secured by the Security Documents
arising pursuant to the Loan Documents are as follows and are called the "Debt"
in this Mortgage and the other Loan Documents:
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(a) Loan Documents. Mortgagor's payment or performance
of all obligations imposed upon Mortgagor by the Loan Documents; and
(b) Advances. All sums advanced by Mortgagee to or for
the benefit of Mortgagor in the manner provided in the Loan Documents, or for
the protection of the security of the Collateral, including, without
limitation, all sums advanced pursuant to this Mortgage, including advances for
repairs, maintenance, insurance, taxes, or assessments; and
(c) Costs. All costs, expenses, losses, damages and
other charges sustained or incurred by Mortgagee because of (i) Mortgagor's
default in payment or performance, as the case may be, of any provision
contained in the Loan Documents; (ii) defense of actions instituted by
Mortgagor or a third party against Mortgagee arising out of or related to the
Loan, or in the realizing upon, protecting, perfecting, defending, or (iii)
actions brought or defended by Mortgagee enforcing Mortgagee's security
interest in the Collateral. All of these costs and expenses include reasonable
attorneys' fees, paralegals' fees, or legal assistants' fees. whether incurred
with respect to collection, litigation, bankruptcy proceedings, interpretation,
dispute, negotiation, trial, appeal, defense of actions instituted by a third
party against Mortgagee. or enforcement of any judgment based on the Loan
Documents, whether or not suit is brought to collect such amounts or to enforce
such rights or, if brought, is prosecuted to judgment.
(d) Miscellaneous Expenses. All costs and expenses
incurred by Mortgagee in connection with the Loan, whether prior to or at
closing or during the term thereof, including, without limitation, hazard and
other insurance required by the Loan Documents, surveys, brokerage commissions
and claims of brokerage, ad valorem and personal property taxes, documentary
stamp taxes and intangible taxes, attorneys' fees, consultant fees, architect's
fees, construction consultant's fees, environmental surveys or assessments, and
recording charges.
(e) Indemnities. All costs, expenses, and amounts
arising under or pursuant to any indemnity contained within the Loan Documents
or in any separate agreement executed by Mortgagor in favor of Mortgagee.
5. TITLE WARRANTIES. Subject to the Permitted Encumbrances (as
hereinafter defined), Mortgagor covenants with Mortgagee that: (i) Mortgagor is
indefeasibly seized of the Land and Improvements in fee simple, has good and
marketable title to the Collateral and has full power, lawful right and
authority to convey the same in fee simple and to grant Mortgagee a perfected
first lien security interest in the Collateral, and (ii) the Collateral is free
and clear of all liens, encumbrances, restrictions, and security interests of
any nature except for those permitted encumbrances which Mortgagee has
previously approved, as set out in Exhibit B attached hereto and incorporated
herein by reference, which are referred to as "Permitted Encumbrances" in this
Mortgage.
6. LIENS. Mortgagor will not create or permit to be created,
or to remain, and will promptly discharge at Mortgagor's expense any and all
liens or encumbrances upon, or security
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interests in, the Collateral, or any combination thereof, whether consensual,
common law, statutory, voluntary, involuntary, or arising by operation of law,
except Permitted Encumbrances. Notwithstanding the foregoing, and except for
any construction liens, Mortgagor may contest the amount, validity and
enforceability of any involuntary or nonconsensual lien, encumbrance or
security interest, including those arising by operation of law, in the manner
provided in Paragraph 8 below. If any construction lien is filed against the
Mortgaged Property, Mortgagor agrees to discharge or otherwise remove such lien
by bond or otherwise, within ten (10) days of imposition of same, but may
thereafter contest the amount or validity of such lien as provided in Paragraph
8 below.
7. TAXES AND OTHER IMPOSITIONS. Mortgagor will pay or cause to
be paid, when due (i) all property taxes, assessments, water, sewer, utility
and other rents, rates and charges, including all excises, taxes, levies,
license fees, permit fees, impact fees, connection fees, and other fees and
charges, whether general or special, ordinary or extraordinary, foreseen or
unforeseen, that may be assessed, levied or imposed upon the Collateral, or
otherwise arising with respect to the occupancy, use, possession or disposition
thereof, whether or not the failure to pay the same might result in the
creation of a lien upon the Collateral, or any combination thereof, (ii) all
franchise, excise and other taxes, fees and charges assessed, levied or imposed
with respect to Mortgagor's right to do business in the State of Florida and
the political subdivisions thereof, (iii) all taxes and fees (except for
Mortgagee's state and federal income taxes) that may be levied by the United
States of America or any state or political subdivision thereof, upon Mortgagee
or Mortgagor in connection with or upon the Loan Documents, or the Debt or its
payment, or collection, or any combination thereof (including all documentary
stamp taxes and intangible taxes plus any penalties and interest charged for
the late payment of any such taxes); and (iv) all lawful claims and demands of
contractors, subcontractors, mechanics, laborers, materialmen and other lienors
which, if unpaid, might result in the creation of a lien upon the Collateral.
The sums payable under this Paragraph are called "Impositions". Nothing
contained in this Paragraph will require the payment of any Imposition so long
as the amount, validity or enforceability thereof is contested by appropriate
proceedings as provided in Paragraph 8 below. With respect to state and local
real and tangible personal property taxes, however, Mortgagor will pay same and
will furnish Mortgagee with copies of the receipts for each such payment
without demand at least thirty (30) days prior to the date each of such taxes
will become delinquent, and any contest of the same must be by a suit or other
proceeding for a refund. Nothing contained in this Paragraph shall prohibit
Mortgagor from paying Impositions in installments where such method of payment
is permitted by law. With respect to all other Impositions, Mortgagor will
furnish Mortgagee with proof of such payment upon demand. If any payment
required to be made by Mortgagor by this Paragraph is prohibited by law, with
the result that Mortgagee becomes liable for its payment, then the Debt will
immediately become due and payable, at Mortgagee's option.
8. CONTESTS. Mortgagor may contest, by any and all appropriate
administrative, trial or appellate proceedings, or any combination thereof, and
in Mortgagee's name, if required by law, the amount, validity, enforceability
or application of any Imposition that Mortgagor is required to pay or perform
to any person or entity other than Mortgagee by any provision of this Mortgage
or the other Loan Documents if and only for so long as: (i) Mortgagor notifies
Mortgagee in writing of its intent to contest the Imposition; (ii) such contest
suspends the collection or enforcement of the
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item(s) contested; (iii) no part of the Collateral will be subject to loss,
sale or forfeiture before final determination of any such contest; (iv) neither
Mortgagor nor Mortgagee will be subject to any criminal liability; (v)
Mortgagor furnishes such security as may be required by law in connection with
each such contest; (vi) the value, usefulness and marketability of the
Collateral will not be adversely impaired by any such contest; (vii) Mortgagor
otherwise continues to pay and perform, as the case may be, the Debt and
Mortgagor's obligations under this Mortgage; (viii) Mortgagor otherwise is not
in default under any provision of the Loan Documents; (ix) each such contest is
continuously prosecuted diligently to final determination; (x) Mortgagor pays
or causes to be paid, and defends, indemnifies and holds Mortgagee harmless of
and from any and all losses, judgments, decrees and costs (including all
reasonable attorneys' fees) incurred in connection with each such contest; (xi)
Mortgagor, promptly following final determination of each such contest, fully
pays and discharges all amounts that may be levied, assessed, charged, imposed
or otherwise determined to be payable, together with all penalties, fines,
interests, costs and expenses, and otherwise complies with such final
determination, at Mortgagor's sole cost and expense; and (xii) such liens are
not filed against the Mortgaged Property pursuant to Chapter 713, Florida
Statutes, in which event such liens must be discharged or deferred to bond
pursuant to Paragraph 6 above before Mortgagor contests such liens. So long as
Mortgagor complies with the foregoing and Mortgagee is promptly reimbursed for
all costs and expenses incurred, Mortgagee will cooperate with Mortgagor in
connection with any such contest.
9. INSURANCE. Until the Debt shall have been discharged by
Mortgagor, Mortgagor shall maintain, at Mortgagor's cost and expense, the
following insurance coverages in full force and effect at all times:
(a) Hazard and Property Insurance. Mortgagor will
obtain and keep in full force (i) "All Risk" type property insurance to include
as a minimum the perils of fire and extended coverage, vandalism, water damage,
collapse, earthquake, and law and ordinance (demolition and increased cost of
construction) coverage in an amount equal to 100% of the full insurable value
of the Improvements (i.e., total cost less value of land and nondestructibles
such as foundations, underground utilities, etc.); and (ii) personal property
insurance as required by Lender in an amount equal to 100% of the full
insurable replacement value of the Tangible Property; and (iii) business income
insurance in an amount equal to (y) annual net income plus continuing normal
operating expenses, or (z) one year's rental value including, but not limited
to rental income from all Leases or sub-leases which are assigned to Lender;
and (iv) flood insurance in the maximum amount available unless Lender is
furnished a surveyor's certificate indicating that the improvements are not
located inside the special flood hazard Boundary Map or in Flood Insurance Rate
Map (FIRM) Zones A, AE, A1-A30, AH, A), A99, VE, V1-V30 OR M).
(b) Liability Insurance, Mortgagor will obtain and keep
in full force a "Broad Form Comprehensive General Liability" insurance coverage
for both Mortgagor and any contractor performing services to the Mortgaged
Property in the minimum coverage amount of One Million Dollars ($1,000,000) per
occurrence and combined single limit ("CSL") of Five Million Dollars
($5,000.000).
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(c) Other Insurance. Boiler and machinery insurance,
worker's compensation insurance, wind damage insurance, and other insurance
coverages as Mortgagee may reasonably require.
The policy or policies of insurance shall (i) be from companies and
in coverage amounts acceptable to Mortgagee, (ii) contain a standard mortgagee
clause in favor of Mortgagee naming Mortgagee as a mortgagee and including a
lender's loss payee clause in such policy, as applicable (iii) not be
terminable or modified without thirty (30) days' prior written notice to
Mortgagee, and (iv) be evidenced by original policies or certified copies of
policies deposited with Mortgagee, as Mortgagee may elect, to be held by
Mortgagee until the Debt shall have been fully paid and discharged. Mortgagor
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:
The Wackenut Corporation
1500 San Remo Avenue
Coral Gables, Florida
If any loss occurs with respect to the Mortgaged Property, Mortgagee
is hereby appointed attorney-in-fact for Mortgagor to make proof of loss if
Mortgagor fails to make the same punctually, and in such event to give a
receipt for any proceeds collected under such policies. Mortgagor will
promptly give written notice to Mortgagee of any loss or damage to the
Mortgaged Property, and will not adjust or settle any such loss without
Mortgagee's prior written consent, which consent shall not be unreasonably
withheld or delayed. Upon any Default by Mortgagor under this Mortgage, all
right, title and interest of Mortgagor in and to all such insurance policies
then in force, including any and all unearned premiums and existing claims,
will inure to Mortgagee, which, at its option, and as attorney-in-fact for
Mortgagor, may then make, settle and give binding acquittances for claims under
all such policies, and may assign and transfer such policies or cancel or
surrender them, applying any unearned premium in such manner as Mortgagee may
elect. The foregoing appointment of Mortgagee as attorney-in-fact for
Mortgagor is coupled with an interest, and is irrevocable. Notwithstanding the
occurrence of any casualty or the availability of any insurance proceeds,
Mortgagor will pay the Debt in the manner required by the Loan Documents.
10. CONDEMNATION. If all or any part of the Collateral, or any
interest therein or right accruing thereto, is taken as a result of, or in lieu
or in anticipation of, the exercise of the right of condemnation or eminent
domain, or by reason of the temporary requisition of the use or occupancy of
the Mortgaged Property, in any event by any government or quasi-governmental
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authority, civil or military, or any other party entitled to exercise such
powers by law, general or special, or is devalued or otherwise adversely
affected by any of the foregoing actions, all proceeds payable with respect to
any such action are assigned to Mortgagee and shall be paid to Mortgagee.
Mortgagee shall be under no obligation to question the amount of any such award
or compensation and may accept the same in the amount in which the same shall
be paid. The proceeds of any award or compensation so received shall, at the
option of the Mortgagee, either be applied to the payment of the Debt or be
paid over to the Mortgagor for the restoration of the Improvement. Mortgagor,
immediately upon obtaining knowledge of the institution or threatened
institution, of any proceedings for the Mortgaged Property, or any part
thereof, by condemnation or eminent domain, will notify the Mortgagee of the
pending of such proceedings. Mortgagee shall have the right to intervene and
participate in any proceedings for and in connection with any taking referred
to in this section. Mortgagor shall not enter into any agreement for the
taking of the Mortgaged Property or any part thereof with any person or persons
authorized to acquire the same by condemnation or eminent domain, unless the
Mortgagee shall have consented thereto in writing. Any of the foregoing
actions are sometimes called a "condemnation" or "taking" in this Mortgage and
the other Loan Documents. Such proceeds include, without limitation, severance
damages, damages arising from the change of grade of any street or the access
thereto, the taking of air rights and damages caused by noise, pollutants and
other emissions. Notwithstanding any such taking or other injury or decrease
in value, or the availability of any proceeds for any of the foregoing,
Mortgagor shall continue to pay the Debt in the manner required by the Loan
Documents. Mortgagee's rights under this Paragraph will survive the
foreclosure or other enforcement of this Mortgage, and Mortgagee will have the
right to receive and retain all proceeds to the extent of any deficiency which
exists upon such foreclosure or other enforcement, together with legal interest
thereon, and to the extent of the reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with the collection of such
proceeds. Such right shall exist whether or not a deficiency judgment shall
have been sought or recovered or denied upon the Note. The remaining balance
of such proceeds, if any, will inure to the benefit of the party entitled
thereto by applicable law.
11. APPLICATION OF INSURANCE PROCEEDS AND AWARDS. The Mortgagor
will promptly give the Mortgagee written notice of any damage to or destruction
of the Mortgaged Property or any part thereof, generally describing the nature
and extent of such damage or destruction and the Mortgagor's best estimate of
the cost of restoring the Mortgaged Property. The Mortgagee may, at its sole
option, apply all amounts recovered under any insurance policy required to be
maintained by the Mortgagor hereunder in any one or more of the following ways:
(a) to the payment of the reasonable costs and expenses incurred by the
Mortgagee in obtaining such insurance proceeds, including the fees and expenses
of attorneys and insurance and other experts and consultants, the costs of
litigation, arbitration, mediation, investigations and other judicial,
administrative or other proceedings and all other out-of-pocket expenses; (b)
to the payment of any of the Debt other than indebtedness with respect to the
Note at the time outstanding; (c) to the payment of the principal of the Note
and any interest accrued and unpaid thereon, without regard to whether any
portion or all of such amounts shall be matured or unmatured, together with
interest at the default interest rate on any overdue principal and (to the
extent permitted by applicable law) interest; and, in case such amount shall be
insufficient to pay in full all such amounts, then such amounts shall be
applied, first,
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<PAGE> 11
to the payment of all amounts of interest accrued on the Note and unpaid,
without preference or priority of any payment of interest over any other
payment of interest or of any other Note, and, second, to the payment of all
amounts of principal at the time outstanding, without preference or priority of
any installment or amount of principal over any other installment or amount of
principal or of any Note over any other Note, but otherwise in such manner and
order as the Mortgagee shall in its sole discretion determine; (d) to fulfill
any of the other covenants contained herein as the Mortgagee may determine; (e)
release to the Mortgagor for application to the cost of restoring the Mortgaged
Property; or (f) release to the Mortgagor. In the event of a foreclosure of
this Mortgage, the purchaser of the Mortgaged Property shall succeed to all the
rights of the Mortgagor, including any right to unearned premiums, in and to
all policies of insurance assigned and delivered to the Mortgagee.
Notwithstanding anything to the contrary contained in Paragraph 11 of
the Mortgage, and upon the terms and conditions set forth below, in the event
of damage or destruction to the buildings now or hereafter situated on the
Mortgaged Property all insurance money paid to Mortgagee on account of such
damage or destruction, less the actual costs, fees and expenses, if any,
incurred in connection with adjustment of the loss, shall be released by
Mortgagee to be applied to payment (to the extent of actual restoration
performed) of the cost of restoring, repair, replacing or rebuilding the
Mortgaged Property substantially to its value immediately prior to such damage
or destruction (the "Restoration"), including the cost of temporary repairs.
Insurance proceeds released for Restoration shall be disbursed from time to
time as such Restoration progresses subject to the following conditions:
(a) Mortgagor is not then in Default under and no event of
Default then exists with respect to any of the terms,
covenants and conditions under the Note or the Mortgage; and
(b) The cost of Restoration is less than 50% of the insurable
value of the building or buildings prior to such damage or
destruction.
(c) Mortgagee shall first be given satisfactory proof that by
the expenditure of such proceeds, the Mortgaged Property
will be fully restored, free and clear of all construction
liens, or, if such proceeds are insufficient to restore or
rebuild the Mortgaged Property, Mortgagor shall either (i)
deposit promptly with Mortgagee funds which, together with
such proceeds, shall be sufficient to complete Restoration,
or (ii) provide other assurance satisfactory to Mortgagee
that Restoration will be completed; and
(d) In the event Mortgagor shall fail either to pursue
Restoration diligently to completion or to complete
Restoration within a reasonable time, Mortgagee, at its
option, may complete Restoration for or on behalf of
Mortgagor and for such purpose may do all necessary acts.
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<PAGE> 12
In the event any of the said conditions are not or cannot be
satisfied, then Mortgagee may apply such proceeds to payment of the Debt
secured by the Mortgage. Under no circumstances shall Mortgagee become
personally liable for the fulfillment of the terms, covenants and conditions
contained in any of the leases of the Mortgaged Property with respect to the
matters referred to in this paragraph nor obligated to take any action to
restore the Mortgaged Property. Mortgagee shall not be obligated to see to the
proper application of any funds released hereunder, nor shall any amount so
released or used be deemed a payment on the Debt secured by the mortgage.
Upon (i) completion of all the Restoration in a good workmanlike
manner and substantially in accordance with the plans and specifications
therefor, if any, approved by Mortgagee and (ii) receipt by Mortgagee of
satisfactory evidence that the Restoration has been completed and paid for in
full (or, if any part of such Restoration has not been paid for, adequate
security for such payment shall exist in form satisfactory to Mortgagee), any
balance of the insurance proceeds at the time held by Mortgagee shall be paid
to Mortgagor or its designee provided Mortgagor is not then in Default under
and no event of Default then exists with respect to any of the terms or
provisions of the Note or the Security Documents.
If, while any insurance proceeds are being held by Mortgagee to
reimburse Mortgagor for the cost of Restoration of the Mortgaged Property,
Mortgagee shall be or become entitled to, and shall, accelerate the Debt
secured by the Mortgage upon the terms and conditions set forth in the Note,
Mortgagee shall be entitled to apply all such proceeds then held by it in
reduction of the Debt secured by the Mortgage and any excess held by it over
the amount of the Debt secured by the Mortgage shall be returned to Mortgagor
or any party entitled thereto.
12. MAINTENANCE, REPAIRS, AND RECONSTRUCTION.
(a) Maintenance and Repairs. Mortgagor, at its sole
cost, shall make all repairs, renewals, replacements, servicing and
reconstruction that are necessary to maintain the Mortgaged Mortgaged Property
in good order, condition and repair. Mortgagor shall establish (and set aside
in segregated deposits) reserve funds in amounts acceptable to Mortgagee for
tenant improvements and for replacements, repairs and capital expenditures in
accordance with the provisions of the Post-Closing Escrow Agreement between
Mortgagor and Mortgagee of even date herewith. Immediately following the
occurrence of any casualty or other loss, Mortgagor promptly will undertake all
restoration required or desirable and will pursue it diligently to completion.
Mortgagor shall (i) not strip, waste, remove or demolish any portion of the
Mortgaged Property, nor suffer or permit any such action; (ii) promptly comply
with all laws, governmental regulations and public or private restrictions or
easements, or both, of any kind affecting the Mortgaged Property or requiring
any alterations or improvements to be made thereon, and (iii) not commit,
suffer or permit any act upon the Mortgaged Property in violation of any law,
subject to Mortgagor's right to contest the same in good faith to conclusion,
as provided in Paragraph 8 of this Mortgage. If any public agency or authority
requires or commences any proceedings for the demolition or removal, or both,
of any improvements or portions thereof comprising the Mortgaged Property due
to non-compliance with health, safety, fire or building codes, then, unless
Mortgagor undertakes to contest such action in the
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<PAGE> 13
manner provided in Paragraph 8 above and pursues such contest to a successful
conclusion, such action will constitute a Default under this Mortgage.
Mortgagor will not, without Mortgagee's prior written consent, (i) make any
material alterations, additions or improvements of or to the Mortgaged
Property; (ii) make any material change in the general nature of the use or
occupancy of the Mortgaged Property; (iii) institute or join or acquiesce in
any action to change the existing zoning or land use classification of the
Mortgaged Property, or (iv) grant easements or licenses affecting the use or
operation of the Mortgaged Property. Mortgagee and any persons authorized by
Mortgagee may enter the Mortgaged Property at all reasonable times with prior
notice for inspections or for any other lawful purpose. If Mortgagor fails to
comply with the requirements of this Paragraph, then Mortgagee, without waiving
the option to foreclose, may take some or all measures Mortgagee reasonably
deems necessary or desirable for the maintenance, repair, preservation or
protection of the Mortgaged Property, and any expenses reasonably incurred by
Mortgagee in so doing shall become part of the Debt secured hereby, and shall,
at the option of Mortgagee, become immediately due and payable, and shall bear
interest at the Default Rate specified in the Note. Mortgagee shall have no
obligation to care for or maintain the Mortgaged Property, or, having taken
some measures therefor, to continue same or take other measures.
(b) Reconstruction. The Mortgagor shall promptly
repair, restore, replace or rebuild any part of the Mortgaged Property, now or
hereafter encumbered by this Mortgage which may be affected by any condemnation
proceeding or which may otherwise become damaged, destroyed, lost or unsuitable
for use. In the event the Mortgaged Property or any part thereof, if damaged
or destroyed by fire or other casualty, the Mortgagor shall immediately notify
the Mortgagee, in writing, of such damage or destruction. The Mortgagor shall
not cause or permit anything to be done which would or could increase the risk
of fire or other hazard to the Mortgaged Property, or any part thereof, or
which would or could result in an increase in any insurance premiums payable
with respect to the Mortgaged Property, or which would or could result in the
cancellation of any insurance policy carried with respect to the Mortgaged
Property. No part of the Mortgaged Property, including, but not limited to,
any building, structure, water system, sewer system, parking lot, driveway,
landscape scheme, timber or other ground improvement, equipment or other
property, now or hereafter mortgaged, shall be removed, demolished or
materially altered without the prior written consent of the Mortgagee. No top
soil, sand, sod, loam, clay or gravel shall be mined, stripped, or removed from
the Mortgaged Property without the written consent of the Mortgagee.
13. ADVANCES. If Mortgagor defaults in the observance or
performance of any of the provisions of the Loan Documents, including but not
limited to obtaining and maintaining insurance pursuant to Paragraph 9, paying
Impositions pursuant to Paragraph 7, and maintaining the Mortgaged Property
pursuant to Paragraph 12, then Mortgagee, without waiving or otherwise
impairing any other of its rights or remedies, at its sole option and without
obligation to do so, and without demand upon Mortgagor, may make any such
payment or take such action as Mortgagee deems necessary or appropriate to
correct such Default, or to protect the security of the Collateral encumbered
by the Loan Documents. All payments so made, together with all costs and
expenses so incurred, will be added to the principal amount due under the Note
and thereafter will bear interest at the rate then
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<PAGE> 14
payable as provided for in the Note, and will be secured by the lien and
security interest granted by the Security Documents. For the foregoing
purposes, Mortgagee is authorized to (a) enter upon the Mortgaged Property; (b)
appear in and defend any action or proceeding purporting to affect the security
of this Mortgage or the rights or powers of Mortgagee hereunder, (c) pay,
purchase, contest or compromise any encumbrance, charge or lien that in the
reasonable judgment of Mortgagee appears to adversely affect the Collateral;
and (d) take whatever action Mortgagee, in its discretion, deems necessary or
appropriate in exercising any such powers. Notwithstanding the foregoing,
Mortgagor immediately, upon Mortgagee's demand, will pay all sums so expended
by Mortgagee with interest as stated above.
14. [THIS SPACE INTENTIONALLY LEFT BLANK]
15. [THIS SPACE INTENTIONALLY LEFT BLANK]
16. [THIS SPACE INTENTIONALLY LEFT BLANK]
17. ASSIGNMENT OF RENTS, LEASES, PROFITS AND CONTRACT RIGHTS.
Pursuant to Paragraph I of this Mortgage, Mortgagor has irrevocably assigned
and set over unto Mortgagee all right, title, and interest of Mortgagor in and
to the Rents and Contract Rights (including all leases and sales contracts now
or hereafter existing relating to the Mortgaged Property) as security for the
Debt, together with the right to collect and enforce the same; provided,
however, so long as there shall be no Default under the Loan Documents,
Mortgagor has been granted a license to collect and receive all Rents assigned
hereunder in accordance with Paragraph 1. Neither these assignments nor
Mortgagee's enforcement of the provisions of these assignments (including the
receipt of the Rents) will operate to subordinate the lien of this Mortgage to
any of the rights of any lessee or purchaser under any lease or sales contract
of the Mortgaged Property, or to subject Mortgagee to any liability to any such
lessee or purchaser for the performance of any obligations of Mortgagor under
any such lease or sales contract unless and until Mortgagee agrees to such
subordination or assumes such liability by an appropriate written instrument.
All right, title and interest of each such lessee or purchaser in and to the
Mortgaged Property, whether arising by virtue of any such lease, contract or
otherwise, at all times will be and remain subject, subordinate and inferior to
the lien of this Mortgage and all rights, remedies, powers and privileges of
Mortgagee arising under or by virtue of any of the Loan Documents. The
assignments of Rents and Contract Rights (including leases) contained in this
Mortgage are intended to provide Mortgagee with all the rights and remedies of
mortgagees pursuant to Section 697.07, Florida Statutes, 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. Notwithstanding
the foregoing, if Mortgagor shall have executed an Assignment of Rents
constituting one of the Loan Documents, such Assignment of Rents is hereby
incorporated herein by reference and shall control if in conflict with the
provisions of this Mortgage.
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18. LEASES AFFECTING MORTGAGED PROPERTY. The assignments
contained in Paragraph I shall not be deemed to impose upon Mortgagee any of
the obligations or duties of Mortgagor provided in any such lease (including,
without limitation, any liability under the covenant of quiet enjoyment
contained in any lease in the event that any tenant shall have been joined as a
party defendant in any action to foreclose this Mortgage and shall have been
barred and foreclosed thereby of all right, title and interest and equity of
redemption in the Mortgaged Property or any part thereof), and Mortgagor will
comply with and observe its obligations as landlord under all leases affecting
the Mortgaged Property or any part thereof. Mortgagor has a license to collect
the Rents, but shall not accept payment of rent more than one month in advance
without the prior written consent of the Mortgagee, and only so long as there
is no Default hereunder or under the other Loan Documents. Mortgagor shall
receive the Rents in trust on Mortgagee's behalf, and Mortgagor covenants to
apply same to the payment of taxes and assessments upon the Mortgaged Property,
to the cost of insurance and maintenance and repairs, and to the payment of the
Debt, before using any part of the Rents for any other purpose.
Prior to a Default hereunder and demand by Mortgagee for delivery of
security deposits held by Mortgagor or any agent of Mortgagor to Mortgagee or
its designee, Mortgagor shall maintain all security deposits pursuant to the
leases in a separate, identifiable account deposited with Mortgagee, or any
other institution acceptable to Mortgagee, and in accordance with all
applicable laws and regulations. Upon delivery of such security deposits to
Mortgagee, or upon Mortgagee's enforcement of its security interest in such
deposits, Mortgagee shall hold such security deposits pursuant to the terms of
the leases in respect of which such deposits were obtained by Mortgagor and in
accordance with applicable law; provided, however, in no event shall Mortgagee
be liable to any lessee of any part of the Mortgaged Property for the return of
any security deposit in any amount in excess of the amount delivered to
Mortgagee by Mortgagor. Any security deposits held by Mortgagee shall not bear
interest unless required by applicable law.
Mortgagor will: (a) not collect any of the Rents arising or accruing
under any lease in advance of the time when the same shall become due, other
than as required to be paid in advance by the terms of any lease, but in no
event more than one (1) month in advance; (b) not pledge, transfer, mortgage or
otherwise encumber or assign any of Mortgagor's interest in the leases or any
Rents arising or accruing therefrom except as expressly permitted pursuant to
the provisions of Paragraph 38 below; (c) not waive, excuse, condone, discount,
set-off, compromise, or in any manner release or discharge any tenant
thereunder of and from any obligations, covenants, conditions and agreements by
said tenant to be kept, observed and performed, including the obligation to pay
the rents thereunder, in the manner at the place and time specified therein;
(d) not cancel, terminate or consent to any surrender of any lease, nor modify,
alter or change any of the terms thereof without the prior written consent of
Mortgagee; (e) not consent to any assignment of or subletting under any lease,
whether or not in accordance with the terms thereof, without the prior written
consent of Mortgagee; and (f) not enter into, execute or deliver any leases
without the prior written consent of Mortgagee. Mortgagee's approval of any of
the leasing matters set forth in (c) through (f) above shall not be
unreasonably withheld or delayed and any request for approval of any new leases
shall be deemed appproved if Mortgagee fails to respond in writing within ten
(10) days after the date of
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submission to Mortgagee of the material, economic terms of any new leases, the
identity of the proposed tenants and any financial information received by
Mortgagee with respect to such proposed tenants.
In the event any tenant of the Mortgaged Property should be the
subject of any proceeding under the Federal Bankruptcy Code, as amended from
time to time, or any other federal, state or local statue which provided for
the possible termination or rejection of any of the leases assigned hereby,
Mortgagor covenants and agrees that if any of the leases is so terminated or
rejected, no settlement for damages shall be made without the prior written
consent of Mortgagee, and any check in payment of damages for termination or
rejection of any such lease will be made payable both to Mortgagor and
Mortgagee. Mortgagor hereby assigns any such payment to Mortgagee and further
covenants and agrees that upon the request of Mortgagee, it will duly endorse
to the order of Mortgagee any such check, the proceeds of which will be
applied to that portion of the Debt as Mortgagee may elect.
Notwithstanding anything to the contrary contained in Paragraph 18 or
in any of the Security Documents so long as Mortgagor is not in Default,
Mortgagor shall have the right to enter into new leases, terminate, modify and
otherwise deal with leases and the tenants under said leases in its normal
course of business without obtaining Mortgagee's prior written approval of any
such action, provided:
(a) All new or replacement leases shall be on the form
previously approved by Mortgagee;
(b) Mortgagor shall promptly furnish Mortgagee with copies of
all appropriate documents pertaining to such action taken
with regard to existing, new or replacement leases; and
(c) If execution of a new or replacement lease is involved, the
rent payable under such lease shall be not less than the
then prevailing rental rates for similar space for a similar
term in similar buildings located in South Miami, Florida.
The foregoing provisions shall only apply to leases of less than
twenty-five thousand (25,000) square feet.
19. DEFAULT. The occurrence of any of the following (time being
of the essence as to this Mortgage and all of its provisions) constitutes a
"Default" by Mortgagor under this Mortgage and, at the option of Mortgagee,
under the other Loan Documents:
(a) Scheduled Payment. Mortgagor's failure to make any
payment required by the Note when due.
(b) Monetary Default. Mortgagor's failure to make any
payment required by this Mortgage or the other Loan Documents when due.
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(c) Other. Mortgagor's failure to perform any other
obligation imposed upon Mortgagor by this Mortgage or the other Loan Documents
within the time period therein specified, or as may be specified by Mortgagee,
if in the sole opinion of Mortgagee such Default is curable. This provision
shall not be construed to provide Mortgagor with any grace period in complying
with any obligations imposed on Mortgagor by the terms of the Loan Documents
except as expressly specified in Paragraph 20 below.
(d) Representation. Any representation or warranty of
Mortgagor contained in this Mortgage or in any certificate delivered pursuant
hereto, or in any other instrument or statement furnished in connection
herewith, proves to be incorrect or misleading in any materially adverse
respect as of the time when the same shall have been made.
(e) Bankruptcy. Mortgagor (i) files a voluntary
petition in bankruptcy or a petition or answer seeking or acquiescing in any
reorganization or for an arrangement, composition, readjustment, liquidation,
dissolution, or similar relief for itself pursuant to the United States
Bankruptcy Code or any similar law or regulation, federal or state relating to
any relief for debtors, now or hereafter in effect; or (ii) makes an assignment
for the benefit of creditors or admits in writing its inability to pay or fails
to pay its debts as they become due; or (iii) suspends payment of its
obligations or takes any action in furtherance of the foregoing; or (iv)
consents to or acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator or other similar official of Mortgagor for all or any
part of the Collateral or other assets of such party, or either; or (v) has
filed against it an involuntary petition, arrangement, composition,
readjustment, liquidation, dissolution, or an answer proposing an adjudication
of it as a bankrupt or insolvent, or is subject to a reorganization pursuant to
the United States Bankruptcy Code, an action seeking to appoint a trustee,
receiver, custodian, or conservator or liquidator, or any similar law, federal
or state, now or hereafter in effect, and such action is approved by any court
of competent jurisdiction and the order approving the same shall not be vacated
or stayed within thirty (30) days from entry; or (vi) consents to the filing of
any such petition or answer, or shall fail to deny the material allegations of
the same in a timely manner.
(f) Judgments. (1) A final judgment, other than a final
judgment in connection with any condemnation, and including any judgment or
other final determination of any contest permitted by Paragraph 8 of this
Mortgage, is entered against Mortgagor that (i) adversely affects the value,
use or operation of the Collateral, or (ii) adversely affects, or reasonably
may adversely affect, the validity, enforceability or priority of the lien or
security interest created by this Mortgage or the other Loan Documents, or
both; or (2) execution or other final process issues thereon with respect to
the Collateral; and (3) Mortgagor does not discharge the same or provide for
its discharge in accordance with its terms, or procure a stay of execution
thereon, in any event within (30) days from entry, or Mortgagor shall not,
within such period or such longer period during which execution on such
judgment shall have been stayed, appeal therefrom or from the order, decree or
process upon or pursuant to which such judgment shall have been entered, and
cause its execution to be stayed during such appeal, or if on appeal such
order, decree or process shall be affirmed and Mortgagor shall not discharge
such judgment or provide for its discharge in accordance with its terms within
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<PAGE> 18
sixty (60) days after the entry of such order or decree or affirmance, or if
any stay of execution on appeal is released or otherwise discharged.
(g) Liens. Any federal, state or local tax lien or any
claim of lien for labor or materials or any other lien or encumbrance of any
nature whatsoever is recorded against Mortgagor or the Mortgaged Property and
is not removed by payment or transferred to substitute security in the manner
provided by law, within ten (10) days after notice thereof is received by
Mortgagor or is not contested by Mortgagor in the manner permitted by Paragraph
8 above.
(h) Leases. Mortgagor's default in the performance of
its obligations as lessor under any lease of all or any portion of the
Mortgaged Property, which default could result, in Mortgagee's judgment, in the
termination of said lease provided that this provision shall only be applicable
to default(s) by Mortgagor under one or more leases which, if terminated by
reason thereof, would result in the surrender of at least 25,000 rentable
square feet of space within the Mortgaged Property.
(i) Other Notes or Mortgages. Mortgagor's default in
the performance or payment of Mortgagor's obligations under any other note, or
under any other mortgage encumbering all or any part of the Mortgaged Property,
if the other mortgage is permitted by Mortgagee, whether such other note or
mortgage is held by Mortgagee or by any other party.
(j) Mortgagor Default Under Loan Documents. Mortgagor's
default in the payment or performance of any of Mortgagor's obligations under
any of the Loan Documents, including this Mortgage and any riders thereto.
(k) Mortgagor's Continued Existence. Mortgagor shall
cease to exist or to be qualified to do or transact business in the State in
which the Mortgaged Property is located or be dissolved or shall be a party
to a merger or consolidation, or shall sell all or substantially all of
its assets, or the death of any individual being a Mortgagor.
(l) Stock in Mortgagor. If, without the prior written
consent of Mortgagee, any shares of stock of Mortgagor are issued, sold,
transferred, conveyed, assigned, mortgaged, pledged, or otherwise disposed of
so as to result in change of control of Mortgagor, whether voluntarily or by
operation of law, and whether with or without consideration, or any agreement
for any of the foregoing is entered into; or, if Mortgagor is a partnership,
any general partnership interest or other equity interest in the partnership is
sold, transferred, assigned, conveyed, mortgaged, pledged, or otherwise
disposed of, whether voluntarily or by operation of law, and whether with or
without consideration, or any agreement for any of the foregoing is entered
into, or any general partner of Mortgagor withdraws from the partnership.
(m) THIS SPACE IS INTENTIONALLY LEFT BLANK
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(n) Transfer of Mortgaged Property or Ownership. Any
sale, conveyance, transfer, assignment, or other disposition of all or any part
of the Collateral or any ownership interest in Mortgagor in violation of
Paragraph 29 below.
(o) False Statement. Any material statement or
representation of Mortgagor contained in the materials furnished to Mortgagee
or prior or subsequent to the making of the loan secured hereby are discovered
to have been false or incorrect or incomplete in any material respect.
(p) Default Under Indemnity. Mortgagor shall default
under any obligation imposed upon Mortgagor by any indemnity whether contained
within any of the Loan Documents or otherwise.
20. REMEDIES. Upon the occurrence and continuance, if
applicable, of any Default, Mortgagee may exercise any one or more of the
following rights and remedies, in addition to all other rights and remedies
otherwise available at law or in equity:
(a) Other Documents. To pursue any right or remedy
provided by the Loan Documents.
(b) Acceleration. To declare the entire unpaid amount
of the Debt together with all accrued and unpaid interest thereon immediately
due and payable with interest to be due thereon at the Default Rate set forth
in the Note.
(c) Foreclosure. To foreclose the lien of this Mortgage
and obtain possession of the Collateral, by any lawful procedure.
(d) Code Rights. To exercise any right or remedy
available to Mortgagee as a secured party under the Uniform Commercial Code as
adopted by the State of Florida, as it from time to time is in force and
effect, with respect to any portion of the Collateral then constituting
property subject to the provisions of such Code; or Mortgagee, at its
option, may elect to treat the Collateral as real property, or an interest
therein, for remedial purposes.
(e) Receiver. To apply, on ex parte motion, to any
court of competent jurisdiction for the appointment of a receiver to take
charge of, manage, preserve, protect, complete construction of, rent, and
operate the Mortgaged Property and any of Mortgagor's business or businesses
situated thereon, or any combination thereof, to collect the Rents; to make all
necessary and needed repairs; to pay all taxes, assessments, insurance premiums
and all other costs incurred in connection with the Mortgaged Property; and,
after payment of the expenses of the receivership, including reasonable
attorneys' fees and other costs and expenses related to the enforcement of the
Security Documents, and after compensation to the receiver for any of the
services described herein or pursuant hereto, to apply all net proceeds derived
therefrom in reduction of the Debt or in such other maimer as the court shall
direct. The appointment of such receiver shall be a matter of strict right to
Mortgagee, regardless of the adequacy of the security or of the solvency of any
party
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<PAGE> 20
obligated for payment of the Debt. AU expenses, fees and compensation
incurred pursuant to any such receivership shall be secured by the lien of this
Mortgage until paid. The receiver, personally or through agents, may exclude
Mortgagor wholly from the Mortgaged Property and have, hold, use, operate,
manage and control the Mortgaged Property and may, in the name of Mortgagor,
exercise all of Mortgagor's rights and powers to maintain, construct, operate,
restore, insure and keep insured the Mortgaged Property in such manner as such
receiver deems appropriate.
(f) Rents. After Mortgagee shall have given written
notice to Mortgagor, to collect all rents, issues, profits, revenues, income,
proceeds, or other benefits from the Collateral, or to pursue any remedy
available under Chapter 697.07, Florida Statutes, as amended, supplemented, or
superseded from time to time.
(g) Other Security. To proceed to realize upon any and
all other security for the Debt in such order as Mortgagee may elect; no such
action, suit, proceeding, judgment, levy, execution or other process will
constitute an election of remedies by Mortgagee or will in any manner alter,
diminish or impair the lien and security interest created by this Mortgage or
any other Security Documents unless and until the Debt is paid in full.
(h) Advances. To advance such monies and take such
other action as is authorized by Paragraphs 13 and 23 herein.
Notwithstanding anything to the contrary contained in this Mortgage
or the Security Documents, including without limitation the Note referred to
therein, Mortgagee agrees that it shall not exercise any right or remedy
provided for therein because of a Default by Mortgagor unless Mortgagee shall
first have given written notice thereof to Mortgagor and Mortgagor shall have
failed, in the event of a monetary Default as described in Paragraph 19(a) and
(b), to pay the outstanding sums within a period of ten (10) calendar days
after the giving of such notice of Default, or in the event of a non-monetary
Default as described in Paragraph 19(c), Mortgagor shall have failed within a
period of thirty (30) days after the giving of such notice of Default to cure
the non-monetary default; provided that if the non-monetary Default cannot be
cured within thirty (30) days and Mortgagor proceeds diligently with efforts to
cure such default until it shall be fully cured within no more than sixty (60)
days after the giving of such notice or such longer period as Mortgagee may
specify, Mortgagee shall not exercise any right or remedy provided herein until
such cure period shall expire; provided, further, that Mortgagee shall not be
required to give any such notice or to allow any part of the cure period if (i)
Mortgagor or any Guarantor shall have filed a petition in bankruptcy or for
re-organization or a bill in equity or otherwise initiated proceedings for the
appointment of a receiver of its or their assets and such appointment or such
receivership is not terminated within thirty (30) days; or (ii) Mortgagee
determines that its security may be imminently and materially threatened or
impaired by reason of such Default. Furthermore, any notice and grace period
requirements contained elsewhere in the Mortgage and Security Documents
including the Note secured thereby shall run concurrently with the requirements
contained in this Paragraph and not in addition thereto.
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21. WAIVER OF CERTAIN RIGHTS. Mortgagor will not claim, take or
insist upon any benefit or advantage of any present or future stay, extension,
redemption or moratorium law that may affect Mortgagor's obligations hereunder,
or any law providing for the valuation or appraisal of the Mortgaged Property
or any portion thereof prior to any sale or sales that may be made under or by
virtue of this Mortgage. Mortgagor, for itself and all who may claim under
Mortgagor, waives, to the extent that it lawfully may, all rights to have the
Mortgaged Property and any other security for the Debt marshalled upon any
foreclosure or otherwise. Mortgagor hereby waives and renounces all homestead
and exemption rights provided for by the laws of the United States of America
and of any state, including Florida, in and to the Mortgaged Property as
against the collection of the Debt, or any part thereof.
22. FURTHER ASSURANCES. Mortgagor, from time to time, will
execute, acknowledge,subscribe and deliver to or at the direction of Mortgagee
such documents and further assurances as Mortgagee may reasonably require for
the purpose of evidencing, perfecting or confirming the lien and security
interest created by this Mortgage, or the security intended to be afforded by
the Loan Documents, or both. Without limitation of the foregoing, Mortgagor
will defend, indemnify and hold Mortgagee harmless with respect to any suit or
proceeding in which the validity, enforceability or priority of the lien or
security interest, or both, is endangered or contested, directly or indirectly,
and will provide Mortgagee with such security for the defense of any such suit
or proceeding as Mortgagee reasonably may require. If Mortgagor fails to
undertake the defense of any such claim in a timely manner. or fails to furnish
Mortgagee with reasonable security for such defense, or, in Mortgagee's sole
but reasonable determination, fails to prosecute such defense with due
diligence, then Mortgagee is authorized to take, at the expense of Mortgagor,
all necessary and proper action in defense of any such claim, including the
retention of legal counsel, the prosecution or defense of litigation and the
compromise or discharge of claims, including payment of all costs and
reasonable attorneys' fees. All costs, expenses and losses, if any, so
incurred by Mortgagee, including reasonable attorneys' fees, regardless of
whether suit is brought and, if suit is brought, for all administrative, trial
and appellate proceedings, if any, will constitute advances by Mortgagee as
provided in Paragraph 13.
23. CUMULATIVE RIGHTS AND NON-WAIVER. No right or remedy
conferred upon or reserved to Mortgagee by this Mortgage or in any of the other
Loan Documents is intended to be exclusive of any other right or remedy; and
each and every right and remedy is cumulative and in addition to any other
right or remedy otherwise available. Every right, power, privilege and remedy
granted Mortgagee by this Mortgage or any of the other Loan Documents, or both,
or otherwise available at law or in equity may be exercised by Mortgagee from
time to time as often as Mortgagee deems expedient until the Debt is paid in
full. Mortgagee's failure to insist at any time upon the strict observance or
performance by Mortgagor of any of the provisions of this Mortgage or in any of
the other Loan Documents, or to exercise any right or remedy provided for in
this Mortgage or in any of the other Loan Documents, will not impair any such
right or remedy or be construed as a waiver or relinquishment thereof for the
future. Receipt by Mortgagee of any payment required to be made pursuant to
any of the Loan Documents with knowledge of the breach of any provision of any
of the Loan Documents will not constitute a waiver of such breach. In addition
to
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all other remedies provided in this Mortgage, Mortgagee will be entitled, to
the extent permitted by applicable law, to injunctive relief in the case of a
violation or attempted or threatened violation of any of the provisions of the
Loan Documents or to a decree ordering performance of any of the provisions of
any of the foregoing.
24. JUDGMENT. Mortgagee may seek and recover a judgment for all
amounts due and payable in accordance with the Note or under this Mortgage
either before, after or during the pendency of any other proceedings or action
to obtain relief under or with respect to any of the Loan Documents.
Mortgagee's right to seek and recover any such judgment will not be affected by
obtaining any other such relief. Mortgagee will continue to be entitled to
enforce payment of, and to seek and recover a judgment for, any portion of the
Debt remaining due and payable after the application of any proceeds of any
sale of the Collateral pursuant to law. Neither the lien nor security interest
of this Mortgage, nor any rights or remedies of Mortgagee hereunder or under
any of the Loan Documents, will be impaired in any way by the recovery of any
judgment by Mortgagee against Mortgagor or any guarantor of the Debt, or by the
levy of an execution under such judgment upon any portion of the Collateral,
until the Debt is paid in full.
25. [THIS SPACE INTENTIONALLY LEFT BLANK]
26. RELEASES AND EXTENSIONS BY Mortgagee. Mortgagee, from time
to time, without notice to any person and without affecting the liability of
Mortgagor or of any guarantor or of any other person (other than any
person expressly released by Mortgagee in writing) for the payment of any of
the Debt, and without affecting the priority or extent of the lien and security
interest of this Mortgage (except as to property specifically released by
Mortgagee in writing), may do any or all of the following: (i) release in whole
or in part any person liable for payment of any or all of the Debt, or (ii)
extend the time or otherwise alter the terms of payment of the Debt, in whole
or in part, or (iii) accept additional or substitute security of any kind, or
(iv) release or otherwise deal with all or any portion of the Collateral.
27. NOTICES. Any notice or demand that must or may be given or
made in connection with this Mortgage must be in writing and, unless receipt is
expressly required, will be deemed given, delivered or made, as the case may
be, when delivered by personal delivery or when mailed by express mail, by
overnight delivery service of a nationally- recognized company, or by certified
or registered mail, return receipt requested, in any event, with sufficient
postage affixed, and addressed to the parties at the addresses written on the
first page of this Mortgage or on the signature pages of this Mortgage. Such
addresses may be changed by notice pursuant to this Paragraph. Notice of
change of address is effective only upon receipt. All of the persons executing
this Mortgage as Mortgagor severally agree that a single notice to Mortgagor in
the manner provided in this Paragraph will be effective to bind each such
person for all purposes.
28. ESTOPPEL LETTERS. As and when, from time to time, requested
by either Mortgagor or Mortgagee, and within ten (10) days after any such
request, Mortgagor or Mortgagee, as the case may be, will execute and deliver
to or at the direction of Mortgagee or Mortgagor, as the
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<PAGE> 23
case may be, such estoppel letters certifying such matters relating to
this Mortgage or the Loan Documents, or both, as may reasonably be required.
29. TRANSFER. Mortgagor may not sell, convey, assign, transfer
or otherwise dispose of any interest in all or any portion of the Collateral,
or any ownership interest in Mortgagor or any guarantor, without Mortgagee's
prior written consent, which consent may be withheld in Mortgagee's sole
discretion. Whether such offer is voluntary or involuntary, or by operation of
law (other than in connection with the death, disability or incompetency of any
individual Mortgagor), any such offer will be void as to Mortgagee, and
constitute an immediate Default under this Mortgage, without notice, in the
sole discretion of Mortgagee. By consent to any offer, sale, or conveyance
hereunder shall not be deemed a consent to any subsequent offer, sale, or
conveyance for which Mortgagee's prior written approval has not been obtained.
30. GENERAL. The provisions of this Mortgage inure to the
benefit of Mortgagee and its successors and assigns, and bind all persons
executing this Mortgage as Mortgagor and their respective heirs, legal
representatives, successors and assigns, jointly and severally, and all persons
now or hereafter claiming any right, title and interest in and to any of the
property, real, personal or mixed, tangible or intangible, now or hereafter
existing or any substitutions or replacements thereof and described in this
Mortgage as the Collateral. Time is of the essence to this Mortgage and each
of its provisions. The provisions of this Mortgage are to be interpreted,
construed, applied and enforced in accordance with the laws of the State of
Florida, regardless of where this Mortgage is executed, delivered or breached,
or where any payment or other performance required by this Mortgage is made,
where any action or other proceeding involving this Mortgage is instituted, or
whether the laws of the State of Florida otherwise would apply the laws of
another jurisdiction; the foregoing choice of law provisions will apply to the
Loan Documents. The provisions of the Loan Documents are severable at
Mortgagee's option so that if any provision is declared by a court of competent
jurisdiction to be invalid or unenforceable, no other provision will be
affected by such invalidity or unenforceability, but will remain in force and
effect according to its original terms, if Mortgagee so elects. Wherever used
in this Mortgage or the other Loan Documents, or both, and unless expressly
provided otherwise: (i) use of the singular includes the plural, and vice
versa; (ii) use of one gender includes all genders; (iii) use of the term
"include" or "including" is always without limitation; (iv) use of the words,
"should," "must" and "will" has the same legal effect as the use of the word
"shall"; (v) the term "day" means a banking day which shall be a day on which
Mortgagee and other banks are open for the transaction of business, excluding
any national holidays, and any performance which would otherwise be required on
a day other than a banking day shall be timely performed in such instance, if
performed on the next succeeding banking day; (vi) any definition herein
incorporating one or more documents or items shall refer to such items
"singularly and collectively", and (vii) "person" means any natural person or
artificial entity having legal capacity. Paragraph headings and subheadings
are for indexing purposes only and are not to be used to interpret, construe,
apply or enforce the provisions of this Mortgage. Mortgagor and Mortgagee
intend the provisions of this Mortgage and the other Loan Documents to be
interpreted, construed, applied and enforced so as to avoid inconsistencies or
conflicting results. This Mortgage may be
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amended only by a written instrument executed by Mortgagor and
Mortgagee with the same formalities as this Mortgage.
31. SATISFACTION. The lien and security interest provided by
the Loan Documents will continue unimpaired and in full force and effect unless
and until the Debt is paid in full, whereupon such lien and security interest
will be without further force or effect.
32. [THIS SPACE INTENTIONALLY LEFT BLANK]
33. MORTGAGOR AS TENANT HOLDING OVER. In the event of a
foreclosure sale of the Mortgaged Property, Mortgagor shall be deemed a tenant
holding over and shall forthwith deliver possession to Mortgagee or any
purchaser or purchasers at such sale or be summarily dispossessed according to
provisions of the law of the State of Florida applicable to tenants holding
over.
34. TIME OF THE ESSENCE. Time is of the essence with respect to
each and every covenant,agreement, and obligation of Mortgagor under this
Mortgage and the other Loan Documents,and any and all other instruments now or
hereafter evidencing, securing or otherwise relating to the Loan.
35. ORAL MODIFICATION INEFFECTIVE. No term of this Mortgage or
any other of the Loan Documents, or such documents, may be waived, changed,
modified, discharged, or terminated except by an instrument in writing signed
by the party against which enforcement of the waiver, change, modification,
discharge, or termination is sought.
36. HAZARDOUS SUBSTANCES. Mortgagor covenants and agrees with
Mortgagee that, throughout the term of the Note: (a) the Mortgaged Property
shall be operated and maintained in compliance with all governmental or
regulatory requirements; (b) Mortgagor shall maintain or procure all necessary
permits, licenses, and certificates required by federal, state, and local laws
throughout the Loan term; (c) all hazardous or toxic substances, within the
definition of any applicable statute or regulation, which may be used by any
person for any purpose upon the Mortgaged Property, shall be used or stored
thereon only in a safe and approved manner, in accordance with all industrial
standards and all laws, regulations and requirements for such storage
promulgated by any applicable governmental agency or authority; (d) other than
as described in (c) above, the Mortgaged Property will not be used for the
purpose of storing such substances; and (e) other than as described in (c)
above, no such storage or use will otherwise be allowed on the Mortgaged
Property (whether through leases with tenants who might store or use hazardous
substances or otherwise) which will cause, or which will increase the
likelihood of causing, the release of such hazardous or toxic substances onto
the Mortgaged Property. Mortgagor shall immediately notify Mortgagee of any
failure to comply under this Paragraph or receipt of any notice of violation or
third party complaint. Mortgagor hereby agrees to indemnify and save and hold
Mortgagee harmless of and from all claims, damages, loss, liabilities,
penalties, fines, remedial action requirements, and enforcement actions, along
with the costs and attorneys' fees incurred by Mortgagee in defending
Mortgagor's use, generation, transportation, and disposal, release, or
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threatened release of hazardous substances, including without limitation,
asbestos-containing materials or damage whatsoever incurred by Mortgagee
arising out of or by reason of any violation of any applicable statute or
regulation for the protection of the environment which occurs upon the
Mortgaged Property from and after the date hereof, or by reason of the
imposition of any governmental lien for the recovery of environmental clean-up
costs expended by reason of such violation, including without limitation any
lien arising pursuant to any so-called "Super Fund" or "Super Lien"
legislation. The foregoing indemnity and covenants of Mortgagor shall not be
applicable to any violations of law or any liability resulting from adverse
environmental conditions in, on or about the Mortgaged Property created or in
existence prior to the date hereof ("Pre-existing Environmental Conditions") A
default under this Paragraph shall constitute a Default under this Mortgage.
It is expressly acknowledged by Mortgagor that this indemnification shall
survive any foreclosure of the lien and security interest of this Mortgage or
the discharge of this Mortgage and shall inure to the benefit of Mortgagee, its
successors and assigns.
37. ENVIRONMENTAL ASSESSMENTS. At any time Mortgagee has a
reasonable basis to suspect that a violation of Mortgagor's obligations
set forth in Paragraph 36 has occurred or in the event a Default by Mortgagor
shall have occurred and be continuing beyond any cure period applicable
thereto, Mortgagee may, at its election, obtain one or more environmental
assessments of the Mortgaged Property prepared by a geohydrologist, an
independent engineer, or other qualified consultant or expert approved by
Mortgagee evaluating or confirming (i) whether any hazardous substances are
present in the soil or water at the Mortgaged Property and (ii) whether the use
and operation of the Mortgaged Property comply with all applicable
environmental laws relating to air quality, environmental control, release of
oil, hazardous materials, hazardous wastes and hazardous substances, and any
and all other applicable environmental laws. Environmental assessments may
include detailed visual inspections of the Mortgaged Property including,
without limitation, any and all storage areas, storage tanks, drains, dry
wells, and leaching areas, and the taking of soil samples, surface water
samples, and ground water samples, as well as such other investigations or
analyses as are necessary or appropriate for a complete determination of the
compliance of the Mortgaged Property and the use and operation thereof with all
applicable environmental laws. All such environmental assessments shall be at
the sole cost and expense of Mortgagor. In the event it is determined that
additional tests and/or remediation are necessary as a result of the aforesaid
assessments, or in the event such additional testing or remediation is
recommended by the aforesaid assessments, the Mortgagor agrees to immediately
perform the tests or undertake the remediation as recommended. Nothing
contained in this Paragraph 8 shall be applicable to, or shall impose any
obligation upon Mortgagor with respect to, any Pre-existing Environmental
Conditions.
38. Permitted Secondary Financing. Mortgagee has consented to a
second mortgage encumbering the Property to be given contemporaneously herewith
by Mortgagor in favor of ALI, Inc., a Delaware corporation pursuant to the
terms of that certain Intercreditor Agreement of even date herewith.
39. WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF MORTGAGOR AGREES
THAT NEITHER MORTGAGOR, NOR ANY OF THEM OR LEGAL
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REPRESENTATIVE OF MORTGAGOR (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS
THE "PARTIES") SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF
THIS MORTGAGE OR ANY INSTRUMENT EVIDENCING, SECURING, OR RELATING TO THE
INDEBTEDNESS AND OTHER OBLIGATIONS EVIDENCED HEREBY, ANY RELATED AGREEMENT OR
INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS EVIDENCED HEREBY OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF THEM.
NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN
WARIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES WITH MORTGAGEE, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
MORTGAGEE HAS IN NO WAY AGREED WITH OR REPRESENTED TO THE PARTIES THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, Mortgagor has executed and delivered this
Mortgage as of the date stated above.
SIGNED, SEALED AND DELIVERED "MORTGAGOR"
IN THE PRESENCE OF:
ACP-ATRIUM CG, LIMITED PARTNERSHIP,
a Florida Limited Partnership
By: ACP-ATRIUM CG, INC., a
Florida corporation, its
general partner
By:
--------------------------- ---------------------------
PRINT NAME OF WITNESS BELOW: Name:
----------------------
--------------------------- Title:
----------------------
---------------------------
PRINT NAME OF WITNESS BELOW:
---------------------------
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STATE OF FLORIDA)
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
____________, 1995 by _________________________, ________________ of ACP-Atrium
CG, Inc., a Florida corporation, on behalf of the corporation as general
partner of ACP-Atrium CG, Limited Partnership. He/she is personally known to
me or has produced ____________________ (type of identification) as
identification.
My Commission Expires:
---------------------------------
NOTARY PUBLIC
---------------------- ---------------------------------
Print Name
Commission No.:
----------------
[NOTARIAL SEAL]
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STATE OF FLORIDA)
)SS:
COUNTY OF DADE )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
_____________________________, the _____________ of __________________________,
a ___________________, freely and voluntarily under authority duly vested in
him/her by said corporation and that the seal affixed thereto is the true
corporate seal of said corporation. He/She is personally known to me or who
has produced ________________ as identification and who DID/DID NOT take an
oath.
WITNESS my hand and official seal in the County and State last
aforesaid this day of ____________________________, 19__.
My Commission Expires:
------------------------------
NOTARY PUBLIC
--------------------------
Print Name
------------------------------
Commission No.:
------------------
[NOTARIAL SEAL]
[JLR.WACKENHUT]030
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