EXHIBIT 10.55
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made by NationsBank,
N.A. ("LENDER"), and the Borrower identified in EXHIBIT "B" ("BORROWER"), who
agree as follows:
ARTICLE 1. - THE LOAN
1.1 GENERAL INFORMATION AND PURPOSE. The Basic Information attached as
EXHIBIT "B" and all other exhibits, which are made a part of this Agreement and
incorporated herein by reference, contain definitions of certain terms used
herein, and also contain other terms, provisions, and conditions applicable to
the Loan. The proceeds of the Loan shall be used by Borrower to pay the cost of
the construction of the Improvements on the Land, and other costs regarding the
Property if and to the extent that such costs are specifically provided for in
the Loan Allocation column in the Budget. The Loan Documents, which must be in
form, detail and substance satisfactory to Lender, evidence the agreements of
Borrower and Lender with respect to the Loan. Borrower shall comply with all
Loan Documents.
1.2 COMMITMENT TO LEND. Lender agrees to make the Loan to Borrower in
advances subject to and in accordance with EXHIBIT "F" and the other terms and
conditions of this Agreement. Lender's commitment to lend shall expire and
terminate on the date when the Final Advance for Improvements (as defined
herein) is made; automatically if the Loan is prepaid in full; and at Lender's
option in the event of a Default. The Loan is not revolving. An amount repaid
may not be reborrowed.
1.3 BUDGET. The Loan funds are allocated for the costs of the Project
shown in the Loan Allocation column in the Budget attached as EXHIBIT "D". The
Budget has been prepared by Borrower and Borrower represents to Lender that it
includes all costs and expenses (the "AGGREGATE COST") incident to the Loan and
the Project, through the maturity date of the Loan, after taking into account
the requirements of this Agreement. Lender shall not be required to (a) make any
advance for any cost not set forth in the Budget, (b) make any advance for any
line item in the Budget that, when added to all prior advances for that line
item, would exceed the lesser of i) the actual cost incurred by Borrower for
such line item or ii) the sum allocated in the Loan Allocation column in the
Budget for that line item, or (c) make any advance for interest on the Loan
after commencement of operations in the Improvements if and to the extent that
there is sufficient net operating income from the Property to cover any such
advances. Lender may make advances allocated to line items in the Budget for
other purposes or in different proportions as Lender in its sole discretion
deems necessary or advisable; provided, however, that if Lender is requested by
Borrower to make a reallocation of a hard cost item which would require
contractor and lienor notices under ss. 713.3471(2), FLORIDA STATUTES, written
notice from the owner to the applicable contractor and all required lienors, in
compliance with ss. 713.3471(2), FLORIDA STATUTES, and countersigned by the
applicable contractor and any lienors who have provided notices to owner shall
be given prior to any such reallocation. Without prior written approval of
Lender, Borrower shall not reallocate Loan funds from one Budget line item to
another or otherwise amend the Budget.
1.4 BORROWER'S DEPOSIT. If at any time Lender determines that the sum
of (i) the unadvanced portion of the Loan to which Borrower is entitled, plus
(ii) the amounts of the Aggregate Cost which are scheduled to be paid by
Borrower from other funds which are available, set aside and committed, to
Lender's satisfaction, is or will be insufficient to pay the unpaid actual
Aggregate Cost, Borrower shall, within seven (7) days after written notice from
Lender, deposit with Lender the amount of the deficiency ("Borrower's Deposit")
which Borrower's Deposit shall be deposited in an interest-bearing account with
interest earned thereon to be part of the Borrower's Deposit. Such Borrower's
Deposit is hereby pledged as additional collateral on the Loan, and Borrower
hereby grants and conveys to Lender a security interest in all funds so
deposited with Lender, as additional collateral on the Loan. Upon a Default,
Lender may (but shall have no obligation to) apply all or any part of the
Borrower's Deposit against the unpaid Indebtedness in such order as Lender
determines. As long as the Loan is current and not in default, Borrower shall
have the right to elect whether the
Borrower's Deposit shall be expended before any further Loan disbursements are
made or in the alternative, whether said Borrower's Deposit shall continue to be
held in the interest-bearing account until all Loan disbursements have been made
by Lender and the Borrower's Deposit is necessary to complete the construction
of the Project.
ARTICLE 2. - ADDITIONAL COVENANTS AND AGREEMENTS
2.1 PLANS. Borrower assumes full responsibility for the compliance of
the Plans and the Property with all laws, governmental requirements and sound
building and engineering practices. No construction shall be undertaken on the
Land except as shown in the Plans. No plans or specifications, or any changes
thereto except Permitted Changes, shall be included as part of the Plans until
consented to by Lender, and approved by Construction Consultant, all applicable
governmental authorities, as may be necessary, and all parties required under
the Loan Documents. As to changes to the Plans which are not Permitted Changes,
Lender shall have fifteen (15) days from the receipt of the requested change in
which to review same and communicate to Borrower its approval or disapproval of
the requested change.
2.2 CONTRACTS. Without Lender's prior written approval as to parties,
terms, and all other matters, Borrower shall not (a) enter into any contract for
the performance of any work or the supplying of any labor, materials, or
services for the design or construction of the Improvements which is in excess
of $50,000.00 (and to the extent such contract is less than $50,000.00, Borrower
shall promptly provide a copy of same to Lender after such contract is fully
executed), (b) enter into any management, leasing, maintenance or other contract
pertaining to the Property not described in clause (a) preceding that is not
unconditionally terminable by Borrower or any successor owner without penalty or
payment on not more than thirty (30) days notice to the other party thereunder,
or (c) modify, amend, or terminate any such contracts. All such contracts shall
provide that all liens of the applicable contractor, architect, supplier,
surveyor or other party and any right to remove removable Improvements are
subordinate to Lender's rights, AND shall require all subcontracts and purchase
orders to contain a provision subordinating the subcontractors' and mechanics'
and materialmen's liens and any right to remove removable Improvements to
Lender's rights, and shall provide that no change order shall be effective
without the prior written consent of Lender except for Permitted Changes.
Borrower shall not default under any contract, Borrower shall not permit any
contract to terminate by reason of any failure of Borrower to perform
thereunder, and Borrower shall promptly notify Lender of any material default
thereunder. Borrower will deliver to Lender, upon request of Lender, the names
of persons or entities with whom each contractor has contracted or intends to
contract for the construction of the Improvements or for the furnishing of labor
or materials therefor, but only to the extent such information is supplied to
Borrower by the Contractor.
2.3 CONSTRUCTION OF THE IMPROVEMENTS. Borrower shall commence
construction of the Improvements within 30 days of the Loan closing date, and
shall prosecute the construction of the Improvements with diligence and
continuity, in a good and workmanlike manner, and in accordance with sound
building and engineering practices, all applicable laws and governmental
requirements, the Loan Documents, and the Plans. Borrower shall not permit
cessation of work for a period in excess of fifteen (15) days (whether or not
consecutive), except for Excusable Delays. Borrower shall complete construction
of the Improvements, and shall obtain a permanent unconditional certificate of
occupancy and all other permits, licenses, and approvals for the occupancy, use
and operation of the Improvements from all applicable governmental authorities
on or before the Completion Date, free and clear of all liens except the Loan
Documents. Borrower shall correct promptly (a) any material defect in the
Improvements, (b) any material departure from the Plans, law, or governmental
requirements, or (c) any encroachment by any Improvements or structure on any
building setback line, easement, property line or restricted area.
2.4 CHANGES. Without Lender's prior written consent, Borrower shall not
materially change or modify the Plans in any manner which changes the general
design, materials, size, quality of construction or structural integrity of the
Improvements as approved by Lender, agree to any change order, or allow any
extras to any contractor or any subcontractor, except that Borrower may make the
Permitted Changes if: (a) Borrower notifies Lender in writing of the change or
extra with appropriate supporting documentation and information; (b) Borrower
obtains the approval of the
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applicable contractor, Borrower's architect, and all sureties; (c) the
structural integrity, quality and standard of workmanship of the Improvements is
not impaired; (d) no substantial change in architectural appearance is affected;
(e) no default in any obligation to any person or violation of any law or
governmental requirement would result from such change or extra; (f) Borrower
complies with Section 1.4 of this Agreement to cover any excess cost resulting
from the change or extra; (g) completion of the Improvements by the Completion
Date will not be affected; and (h) all requirements of ss. 713.3471(2), FLORIDA
STATUTES, have been fully satisfied. Lender shall not be obligated to review a
proposed change which Lender is entitled to approve unless it has received all
documents necessary to review such change, such as the change order, cost
estimates, plans and specifications, and evidence that all approvals by all
applicable parties have been obtained. As to changes which are not Permitted
Changes, Lender shall have five (5) days from the receipt of any requested
change order which does not involve a change in the Plans in which to review
same and communicate to Borrower its approval or disapproval of the requested
change order.
2.5 STORAGE OF MATERIALS. Borrower shall cause all materials supplied
for, or intended to be utilized in the construction of the Improvements, but not
yet affixed to or incorporated into the Improvements on the Land, to be stored
on the Land with adequate safeguards as required by Lender to prevent loss,
theft, damage or commingling with other materials or projects. Borrower shall
not purchase or order materials for delivery more than forty-five (45) days
prior to the scheduled incorporation of such materials into the Improvements.
2.6 INSPECTION. Lender may enter upon the Property to inspect the
Property and any materials at any reasonable time. Borrower will furnish to
Lender at any time for inspection and copying all Plans, shop drawings,
specifications, books and records, and other documents and information required
by Lender.
2.7 NOTICE TO LENDER. Borrower shall promptly notify Lender in writing
of any of the following events, specifying in each case the action Borrower has
taken or will take with respect thereto: (a) any violation of any law or
governmental requirement; (b) any litigation, arbitration or governmental
investigation or proceeding instituted or threatened against Borrower or any
Guarantor or the Property or any material development therein; (c) any actual or
threatened condemnation of any portion of the Property, any negotiations with
respect to any such taking, or any loss of or substantial damage to the
Property; (d) any labor controversy pending or threatened against Borrower or
any contractor or any material development in any labor controversy; (e) any
notice received by Borrower with respect to the cancellation, alteration or
non-renewal of any insurance coverage maintained with respect to the Property;
or (f) any failure by Borrower or any contractor to perform any material
obligation under any construction contract, any event or condition which would
permit termination of a construction contract or suspension of work thereunder,
or any notice given by Borrower or any contractor with respect to any of the
foregoing.
2.8 ASSIGNMENT OF CONTRACTS AND PLANS. As additional security for the
payment of the Loan, Borrower hereby transfers and assigns to Lender all of
Borrower's rights and interest, but not its liability, in, under, and to all
construction, architectural and design contracts, permits and the Plans, and
agrees that all of the same are covered by the security agreement provisions of
the Mortgage. Borrower represents and warrants that the copy of any contract
furnished or to be furnished to Lender is and shall be a true and complete copy
thereof, that the copies of the Plans delivered to Lender are and shall be true
and complete copies of the Plans, that there have been no modifications thereof
which are not fully set forth in the copies delivered, and that Borrower's
interest therein is not subject to any claim, setoff, or encumbrance. Neither
this assignment nor any action by Lender shall constitute an assumption by
Lender of any obligation under any contract or with respect to the Plans, and
Borrower shall continue to be liable for all obligations of Borrower with
respect thereto, Borrower hereby agreeing to perform all of its obligations
under any contract. Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of Borrower such action Lender
may determine necessary to cure any default under any contract or with respect
to the Plans or to protect the rights of Borrower or Lender with respect
thereto. Lender shall incur no liability if any action so taken by it or on its
behalf shall prove to be inadequate or invalid. Borrower indemnifies and holds
Lender harmless against and from any loss, cost, liability or expense
(including, but not limited to, attorneys' fees and expenses) incurred in
connection with
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Borrower's failure to perform such contracts or any action taken by Lender.
Lender may use the Plans for any purpose relating to the Improvements. Borrower
irrevocably constitutes and appoints Lender as Borrower's attorney-in-fact,
which power of attorney shall be irrevocable and coupled with an interest, in
Borrower's name or in Lender's name to enforce all rights of Borrower under any
contract or with respect to the Plans.
2.9 ADVERTISING BY LENDER. At Lender's request and expense, Borrower
shall place upon the Property at a mutually acceptable location a sign
announcing that financing is being provided by Lender. Also, Lender shall have
the right to secure printed publicity through newspapers and other media
concerning the Property and its financing. All publicity referenced herein shall
require Borrower's prior approval, which shall not be unreasonably withheld.
2.10 FINANCIAL STATEMENTS. Borrower shall deliver to Lender the
Financial Statements and other statements and information at the times and for
the periods described in the Basic Information, and as otherwise required by any
other Loan Documents.
2.11 APPRAISAL. Lender may obtain at Borrower's expense upon request an
appraisal of any part of the Property prepared in accordance with written
instructions from Lender by a third-party appraiser engaged directly by Lender.
Each such appraiser and appraisal shall be satisfactory to Lender (including
satisfaction of applicable regulatory requirements). The cost of each such
appraisal shall be due and payable by Borrower on demand and shall be secured by
the Loan Documents. Borrower shall cooperate fully with the appraisal process,
including, but not limited to, allowing reasonable entry upon and into the
Property. Notwithstanding anything contained herein or in the other Loan
Documents for the Loan to the contrary, Lender shall not request updated
appraisals pursuant to this Section unless: (a) the Loan is in Default, or (b)
if required by any governmental law or regulation, or (c) no more than once in
any calendar year, for good cause (i.e., Lender has reason to believe the value
of the Property has declined such that the desired Loan-to-value ratio is no
longer maintained).
2.12 CONSTRUCTION CONSULTANT AND SUPERVISING ARCHITECT. Lender shall
designate a Construction Consultant to perform various services on behalf of
Lender. The services to be performed by Lender's Construction Consultant include
review of the Plans and specifications and all proposed changes to them,
preparation of a "cost take-off" construction analysis, inspection of
construction work for conformity with the approved Plans and specifications, and
approval of requests for Loan disbursements. The cost of these services shall be
paid by Lender, except that the Borrower shall pay the cost of all inspections
of the Property made by the Construction Consultant after the fourteenth (14th)
inspection, if any. Inspections of the construction site shall be limited to one
time per month unless additional site inspections are deemed necessary by the
Lender's Construction Consultant. Borrower shall have a supervising architect,
who is acceptable to the Lender, and who will perform various services in
connection with the construction of the Improvements under a "full-service"
contract with Borrower or Borrower's Contractor. Such services shall include
certifying to Lender the results of regular, periodic inspections of the
construction through completion of the Improvements, including but not limited
to compliance with the Plans and the percentage of Loan funds requested to be
drawn in relation to the percentage of work completed as a condition of Loan
advances. Lender's Construction Consultant and Borrower's supervising architect
shall not be the same person or firm. Borrower shall cooperate with Construction
Consultant and will furnish Construction Consultant whatever Construction
Consultant considers necessary or useful to perform its duties. The duties of
Construction Consultant run solely to Lender, and Construction Consultant shall
have no obligations or responsibilities whatsoever to Borrower, Borrower's
supervising architect, engineer, contractor or to any of their agents or
employees.
2.13 REPORTS AND VOUCHERS. Borrower shall (a) promptly deliver to
Lender copies of all reports, studies, inspections and tests made on the Land,
the Improvements or the materials to be incorporated into the Improvements; (b)
make additional tests Lender reasonably requires; and (c) deliver to Lender, on
demand, any contracts, bills of sale, statements, receipted vouchers or
agreements under which Borrower claims title to any materials, fixtures or
articles incorporated or to be incorporated in the Improvements or otherwise
subject to a lien or security interest in favor of
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Lender. Borrower shall immediately notify Lender of such report, study,
inspection or test that indicates any adverse condition in the Land or the
Improvements.
2.14 PAYMENT OF WITHHOLDING TAXES. Borrower shall not use, or knowingly
permit any contractor or subcontractor to use, any portion of the proceeds of
any advance to pay the wages of employees unless a portion of the proceeds or
other funds are also used to make timely payment to or deposit with the United
States all amounts of tax required to be deducted and withheld with respect to
such wages under the Internal Revenue Code, and to make timely payment to or
deposit with any local and/or state governmental authority or agency having
jurisdiction all amounts of tax required to be deducted and withheld with
respect to such wages under any applicable local and/or state laws.
2.15 REPRESENTATIONS AND WARRANTIES. To induce Lender to make the Loan,
Borrower hereby represents and warrants to Lender that (a) prior to the
recordation of the Mortgage, no work of any kind (including the destruction or
removal of any existing improvements, site work, clearing, grading, grubbing,
draining or fencing of the Land) has been or will be commenced or performed on
the Land, no equipment or material has been or will be delivered to or upon the
Land for any purpose whatsoever, and no contract (or memorandum or affidavit
thereof) for the supplying of labor, materials, or services for the design or
construction of the Improvements, or the surveying of the Land or Improvements,
nor any affidavit or notice of commencement of construction of the Improvements,
has been or will be executed or recorded, which could cause a mechanic's or
materialman's lien or similar lien to have an inception so as to achieve
priority over the mortgage or the rights of Lender thereunder; (b) to the extent
required by applicable law, Borrower and Guarantor have filed all necessary tax
returns and reports and have paid all taxes and governmental charges thereby
shown to be owing; (c) the Plans are satisfactory to Borrower, have been
approved by all applicable governmental authorities, have been accepted by each
contractor, are complete in all material respects, contain all detail necessary
and are adequate for the construction of the Improvements, and comply with the
Loan Documents, all applicable laws, restrictive covenants, and governmental
requirements, rules, and regulations; (d) the Land is not part of a larger tract
of land owned by Borrower or its affiliates or any Guarantor and is not
otherwise included under any unity of title or similar covenant with other lands
not encumbered by the Mortgage, and Borrower has obtained or will obtain prior
to the issuance of the first tax xxxx coming due after the date of this
Agreement, a separate tax lot or lots with a separate tax assessment or
assessments for the Land and Improvements, independent of any other lands or
improvements; (e) the Land and Improvements comply with all laws and
governmental requirements, including all subdivision and platting requirements,
without reliance on any adjoining or neighboring property; (f) the Plans do and
the Improvements when constructed will comply with all legal requirements
regarding access and facilities for handicapped or disabled persons; (g)
Borrower has not directly or indirectly conveyed, assigned or otherwise disposed
of or transferred (or agreed to do so) any development rights, air rights or
other similar rights, privileges or attributes with respect to the Property,
including those arising under any zoning or land use ordinance or other law or
governmental requirement; (h) the construction schedule for the Project is
realistic and the Completion Date is a reasonable estimate of the time required
to complete the Project; (i) the Financial Statements delivered to Lender are
true and correct, and there has been no material change of Borrower's financial
condition from the financial condition of Borrower indicated in such Financial
Statements; and (j) The Borrower has (i) initiated a review and assessment of
all areas within its, Guarantor's and each of their respective affiliates',
subsidiaries' and other related entities (the "Related Entities") business and
operations (including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower, Guarantor or any of their respective Related
Entities (or its suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its, Guarantor's or any of their respective Related Entities'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant"), except to the extent that a failure to do so
could
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not reasonably be expected to have material adverse effect on the Borrower's,
Guarantor's or any Related Entities' business, operations, creditworthiness or
financial status.
2.16 YEAR 2000 COMPLIANCE. The Borrower will promptly notify the Lender
in the event the Borrower discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its,
Guarantor's or any of their respective affiliates', subsidiaries', or other
related entities' (the "Related Entities") business and operations will not be
Year 2000 compliant on a timely basis, except to the extent that such failure
could not reasonably be expected to have a material adverse effect on the
Borrower's, Guarantor's or any Related Entities' business, operations,
creditworthiness or financial status.
ARTICLE 3. - DEFAULT AND REMEDIES
3.1 EVENTS OF DEFAULT. The occurrence of any one of the following shall
be a default under this Agreement ("DEFAULT"): (a) any of the Indebtedness is
not paid when due, whether the due date is the scheduled due date or arises by
acceleration or otherwise; (b) any covenant, agreement or condition in any Loan
Document (other than covenants to pay any of the Indebtedness) is not fully and
timely performed, observed or kept; (c) the cessation of the construction of the
Improvements continues for more than fifteen (15) days (whether or not
consecutive) except for Excusable Delays; (d) the construction of the
Improvements, or any materials for which an advance has been requested, fails to
comply with the Plans, the Loan Documents, or any laws or governmental
requirements, which failure is not cured within thirty (30) days after written
notice thereof to Borrower; (e) Borrower fails to satisfy any condition
precedent to the obligation of Lender to make an advance; (f) construction of
the Improvements is abandoned, or Borrower fails to complete construction of the
Improvements (and obtain all applicable permits, licenses, and approvals) in
accordance with this Agreement on or before the Completion Date; (g) any
required permit, license, certificate or approval with respect to the Property
lapses or ceases to be in full force and effect; (h) a Borrower's Deposit is not
made with Lender within seven (7) days after Lender's request therefor in
accordance with Section 1.4; (i) construction is enjoined or Borrower or Lender
is enjoined or prohibited from performing under the Loan Documents; (j) the
owner of the Property enters into any lease of part or all of the Property which
does not comply with the Loan Documents; or (k) any claim of lien for labor or
materials or any other lien or encumbrance of any nature whatsoever is recorded
against Borrower or the Property and is not removed by payment or transferred to
substitute security in the manner provided by law, within ten (10) days after it
is recorded in accordance with applicable law; or (l) any federal, state or
local tax lien is recorded against the Borrower or the Property and is not
removed by payment or transferred to substitute security in the manner provided
by law within thirty (30) days after it is recorded in accordance with
applicable law; (m) Borrower shall cease to exist or to be qualified to do or
transact business in the State in which the Property is located, or shall be
dissolved or shall be a party to a merger or consolidation, or shall sell all or
substantially all of its assets; (n) any sale, conveyance, transfer, assignment,
or other disposition of all or any part of the Property; (o) any statement or
representation of Borrower or any Guarantor contained in the Loan application or
any financial statements or other materials furnished to Lender or any other
lender prior or subsequent to the making of the Loan secured hereby are
discovered to have been materially false or incorrect or incomplete; (p)
Borrower or any Guarantor shall default under any obligation imposed by any
indemnity whether contained within any of the Loan Documents, the Hazardous
Waste Certification and Indemnification, or otherwise; or (q) a default occurs
under any Loan Document other than this Agreement. The events described in
subparagraphs (e) through (j) above shall not be deemed to be events of Default
unless they continue for a period of ten (10) days after written notice thereof
from Lender to Borrower, provided, however, if such event may not reasonably be
cured within such ten (10) day period, an event of Default shall not be deemed
to have occurred so long as same shall be diligently and continuously endeavored
to be cured. Notwithstanding the foregoing, it shall be an event of Default if
the violation has not been cured within sixty (60) days after notice thereof.
3.2 REMEDIES. Upon a Default, Lender may, at its election, but without
any obligation to do so, without further notice, do any one or more of the
following: (a) terminate its commitment to lend and any obligation to disburse
any Borrower's Deposit hereunder; (b) reduce any claim to judgment; (c) exercise
any and all rights and remedies afforded by this Agreement, the other Loan
Documents, law, equity or otherwise; (d) set-off and apply, to the extent
thereof and to the maximum
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extent permitted by law, any and all deposits, funds, or assets at any time held
and any and all other indebtedness at any time owing by Lender to or for the
credit or account of Borrower against any Indebtedness; or (e) in its own name
or in the name of Borrower, enter into possession of the Property, perform all
work necessary to complete the construction of the Improvements substantially in
accordance with the Plans (as modified as deemed necessary by Lender), Loan
Documents, laws, and governmental requirements, and continue to employ
Borrower's architect, engineer, and any contractor pursuant to the applicable
contracts or otherwise. Borrower hereby appoints Lender as the attorney-in-fact
of Borrower, which power of attorney is irrevocable and coupled with an
interest, with full power of substitution and in the name of Borrower, if Lender
elects to do so, upon the occurrence of a Default, to i) use such sums as are
necessary, including any proceeds of the Loan and any Borrower's Deposit, make
such changes or corrections in the Plans and employ such architects, engineers,
and contractors as may be required for the purpose of completing the
construction of the Improvements substantially in accordance with the Plans (as
modified as deemed necessary by Lender), Loan Documents, laws and governmental
requirements, or as otherwise may be necessary or desirable for purposes of
completing such construction; ii) execute all applications and certificates in
the name of Borrower which may be required for completion of construction of the
Improvements; iii) endorse the name of Borrower on any checks or drafts
representing proceeds of any insurance policies, or other checks or instruments
payable to Borrower with respect to the Property; iv) do every act with respect
to the construction of the Improvements which Borrower may do; v) prosecute or
defend any action or proceeding incident to the Property, vi) pay, settle, or
compromise all bills and claims so as to clear title to the Property; and vii)
take over and use all or any part of the labor, materials, supplies and
equipment contracted for, owned by, or under the control of Borrower which
relate to the construction, maintenance or operation of the Improvements (but
not any such items related to the Borrower's business conducted in the
Improvements), whether or not previously incorporated into the Improvements. Any
amounts expended by Lender shall be a demand obligation owing by Borrower to
Lender. Lender shall have no liability to Borrower for the sufficiency or
adequacy of any such actions taken by Lender.
ARTICLE 4. - GENERAL TERMS AND CONDITIONS
4.1 USURY LAWS. Borrower, Lender and all other parties to the Loan
Documents intend to conform to and contract in strict compliance with applicable
usury law from time to time in effect. All agreements between Borrower and
Lender (or any other party liable with respect to any Indebtedness under the
Loan Documents) are hereby limited by the provisions of this Section which shall
override and control all such agreements, whether now existing or hereafter
arising. In no way, nor in any event or contingency (including but not limited
to prepayment, default, demand for payment, or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for, charged,
chargeable, or received under this Agreement, the Note, any of the other Loan
Documents, or otherwise, exceed the maximum amount permitted under applicable
law ("MAXIMUM AMOUNT"). If, from any possible construction of any document,
interest would otherwise be payable in excess of the Maximum Amount, any such
construction shall be subject to the provisions of this Section and such
document shall IPSO FACTO be automatically reformed and the interest payable
shall be automatically reduced to the Maximum Amount, without the necessity of
execution of any amendment or new document. If Lender shall ever receive
anything of value which is characterized as interest under applicable law and
which would apart from this provision be in excess of the Maximum Amount, an
amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing on
the Indebtedness in the inverse order of its maturity and not to the payment of
interest, or be refunded to Borrower or the other payor thereof, at the election
of Lender in its sole discretion or as required by applicable law. The right to
accelerate maturity of the Note or any other Indebtedness does not include the
right to accelerate any interest which has not otherwise accrued on the date of
such acceleration, and Lender does not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to be paid to
Lender shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such Indebtedness so that the amount of interest on account of
such Indebtedness does not exceed the Maximum Amount. As used in this Section,
the term "applicable law" shall mean the laws of the State of FLORIDA or the
federal laws of the United States applicable to this transaction, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
7
4.2 LENDER'S CONSENT. Except where otherwise expressly provided in the
Loan Documents, in any instance where the approval, consent or the exercise of
judgment of Lender is required, the granting or denial of such approval or
consent and the exercise of such judgment shall be (a) within the sole
discretion of Lender and free from any limitation or requirement of
reasonableness if the matter which gives rise to the need for the approval,
consent or exercise of judgment relates to the construction of the Improvements,
and within the reasonable discretion of Lender if the matter which gives rise to
the need for the approval, consent or exercise of judgment does not relate to
the construction of the Improvements; and (b) deemed to have been given only by
a specific writing intended for the purpose given and executed by Lender.
Notwithstanding any approvals or consents by Lender, Lender has no obligation or
responsibility whatsoever for the adequacy, form or content of the Plans, the
Budget, any contract, any change order, any lease, or any other matter incident
to the Property or the construction of the Improvements. Lender's acceptance of
an assignment of the Plans shall not constitute approval of the Plans. Any
inspection or audit of the Property or the books and records of Borrower, or the
procuring of documents and financial and other information, by or on behalf of
Lender shall be for Lender's protection only, and shall not constitute any
assumption of responsibility to Borrower or anyone else with regard to the
condition, construction, maintenance or operation of the Property, or relieve
Borrower of any of Borrower's obligations. Borrower or the Contractor has
selected all surveyors, architects, engineers, contractors, materialmen and all
other persons or entities furnishing services or materials to the Project.
Lender has no duty to supervise or to inspect the Property or the construction
of the Improvements nor any duty of care to Borrower or any other person to
protect against, or inform Borrower or any other person of, the existence of
negligent, faulty, inadequate or defective design or construction of the
Improvements. Lender shall not be liable or responsible for any defect in the
Property or the Improvements, the performance or default of Borrower, Borrower's
or Contractor's architect, engineer, contractor, the Construction Consultant, or
any other party, or for any failure to construct, complete, protect or insure
the Improvements, or for the payment of costs of labor, materials, or services
supplied for the construction of the Improvements, or for the performance of any
obligation of Borrower or Contractor whatsoever. Nothing, including any advance
or acceptance of any document or instrument, shall be construed as a
representation or warranty, express or implied, to any party by Lender.
Inspection shall not constitute an acknowledgment or representation by Lender or
the Construction Consultant that there has been or will be compliance with the
Plans, Loan Documents, applicable laws and governmental requirements or that the
construction is free from defective materials or workmanship. Inspection whether
or not followed by notice of Default shall not constitute a waiver of any
Default then existing, or a waiver of Lender's right thereafter to insist that
the Improvements be constructed in accordance with the Plans, Loan Documents,
applicable laws, and governmental requirements. Lender's failure to inspect
shall not constitute a waiver of any of Lender's rights under the Loan Documents
or at law or in equity.
4.3 MISCELLANEOUS. This Agreement may be executed in several
counterparts, all of which are identical, and all of which counterparts together
shall constitute one and the same instrument. The Loan Documents are for the
sole benefit of Lender and Borrower and are not for the benefit of any third
party. A determination that any provision of this Agreement is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Agreement to
any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances. Time shall be of the essence with respect to Borrower's
obligations under the Loan Documents. This Agreement, and its validity,
enforcement and interpretation, shall be governed by the laws of the State of
Florida (without regard to any conflict of laws principles) and applicable
United States federal law.
4.4 NOTICES. Unless specifically provided otherwise, any notice for
purposes of this Agreement or any other Loan Document shall be given in writing
or by telex or by facsimile (fax) transmission and shall be addressed or
delivered to the respective addresses set forth at the end of this Agreement, or
to such other address as may have been previously designated by the intended
recipient by notice given in accordance with this Section. If sent by prepaid,
registered or certified mail (return receipt requested), the notice shall be
deemed effective when the receipt is signed or when the attempted initial
delivery is refused or cannot be made because of a change of address of which
the sending party has not been notified; if transmitted by telex, the notice
shall be effective when
8
transmitted (answerback confirmed); and if transmitted by facsimile or personal
delivery, the notice shall be effective when received. No notice of change of
address shall be effective except upon actual receipt, and service of a notice
required by any applicable statute shall be considered complete when the
requirements of that statute are met. This Section shall not be construed in any
way to affect or impair any waiver of notice or demand provided in any Loan
Document or to require giving of notice or demand to or upon any person in any
situation or for any reason.
4.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Borrower, and Borrower's heirs, devisees, representatives, successors and
assigns, and shall inure to the benefit of Lender and its successors and
assigns, provided, however, that Borrower shall not assign or encumber any
interest of Borrower hereunder without the prior written consent of Lender.
Lender may sell or offer to sell the Loan or interests in the Loan to one or
more assignees or participants. Borrower shall execute, acknowledge, and deliver
any and all instruments reasonably requested by Lender or such assignee or
participant.
4.6 MODIFICATION OR TERMINATION. The Loan Documents may only be
modified or terminated by a written instrument or instruments intended for that
purpose and executed by the party against which enforcement thereof is asserted.
This Agreement shall continue in full force and effect until the Indebtedness is
paid in full; and all representations and warranties and all provisions herein
for indemnity of Lender (and any other provisions herein specified to survive)
shall survive payment in full of the Indebtedness and any release or termination
of this Agreement or of any other Loan Documents.
4.7 COSTS AND EXPENSES. Without limitation of any Loan Document and to
the extent not prohibited by applicable laws, Borrower shall pay when due, and
reimburse to Lender on demand, and indemnify Lender from, all out-of-pocket
fees, costs, and expenses paid or incurred by Lender in connection with the
negotiation, preparation and execution of this Agreement and the other Loan
Documents (and any amendments, approvals, consents, waivers and releases
requested, required, proposed or done from time to time), or in connection with
the disbursement, administration or collection of the Loan or the enforcement of
the obligations or the exercise of any right or remedy of Lender (including
costs of arbitration), including (a) fees and expenses of Lender's counsel; (b)
fees and charges of each Construction Consultant or architect; (c) appraisal,
re-appraisal and survey costs; (d) title insurance charges and premises; (e)
title search or examination costs, including abstracts, abstractors'
certificates and uniform commercial code searches; (f) judgment and tax lien
searches for Borrower and each Guarantor; (g) escrow fees; (h) fees and costs of
environmental investigations and site assessments; (i) recordation taxes,
documentary taxes, transfer taxes and mortgage taxes, (j) filing and recording
fees, and (k) loan brokerage fees. Borrower shall pay all costs and expenses
incurred by Lender, including attorneys' fees, if the obligations or any part
thereof are sought to be collected by or through an attorney at law, whether or
not involving probate, arbitration, appellate, administrative or bankruptcy
proceedings. Borrower shall pay all costs and expenses of complying with the
Loan Documents, whether or not such costs and expenses are included in the
Budget. Borrower's obligations under this Section shall survive the delivery of
the Loan Documents, the making of advances, the payment in full of the
obligations, the release or determination of the Loan Documents, the foreclosure
of the Mortgage or conveyance in lieu of foreclosure, any bankruptcy or other
debtor relief proceeding, and any other event whatsoever.
4.8 FURTHER ASSURANCES. Borrower will, on request of Lender, (a)
promptly correct any defect, error or omission in any Loan Document; (b)
execute, acknowledge, deliver, procure, record or file such further instruments
and do such further acts deemed necessary, desirable or proper by Lender to
carry out the purposes of the Loan Documents and to identify and subject to the
liens and security interest of the Loan Documents any property intended to be
covered thereby, including any renewals, additions, substitutions, replacements,
or appurtenances to the Property; (c) execute, acknowledge, deliver, procure,
file or record any document or instrument deemed necessary, desirable, or proper
by Lender to protect the liens or the security interest under the Loan Documents
against the rights or interests of third persons; and (d) provide such
certificates, documents, reports, information, affidavits and other instruments
and do such further acts deemed necessary, desirable or proper by Lender to
comply with the requirements of any agency having jurisdiction over Lender.
9
4.9 NO ASSIGNMENT. Borrower shall not assign, transfer or encumber its
rights or obligations under any Loan Document or any proceeds of the Loan
without the prior written consent of Lender.
4.10 INDUCEMENT TO LENDER. The representations and warranties contained
in the Loan Documents (a) are made to induce Lender to make the Loan and Lender
is relying thereon, and (b) shall survive any bankruptcy proceedings involving
Borrower, Guarantor or the Property, foreclosure, or conveyance in lieu of
foreclosure.
4.11 FORUM. Borrower hereby irrevocably submits generally and
unconditionally for itself and in respect of its property to the jurisdiction of
any state court, or any United States federal court, sitting in the State
specified in Section 4.3 of this Agreement and to the jurisdiction of any state
court or any United States federal court, sitting in the state in which any of
the Property is located, over any suit, action or proceeding arising out of or
relating to this Agreement or the Indebtedness. Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection that Borrower may
now or hereafter have to the laying of venue in any such court and any claim
that any such court is an inconvenient forum. Borrower hereby agrees and
consents that, in addition to any methods of service or process provided for
under applicable law, all service of process in any such suit, action or
proceeding in any state court, or any United States federal court, sitting in
the state specified in Section 4.3 may be made by certified or registered mail,
return receipt requested, directed to Borrower at its address for notice stated
in the Loan Documents, or at a subsequent address of which Lender received
actual notice from Borrower in accordance with the Loan Documents, and service
so made shall be complete five (5) days after the same shall have been so
mailed. Nothing herein shall affect the right of Lender to serve process in any
manner permitted by law or limit the right of Lender to bring proceedings
against Borrower in any other court or jurisdiction.
4.12 INTERPRETATION. References to "Dollars", "$", "money", "payments"
or other similar financial or monetary terms are references to lawful money of
the United States of America. References to Articles, Sections, and Exhibits
are, unless specified otherwise, references to articles, sections and exhibits
of this Agreement. Words of any gender shall include each other gender. Words in
the singular shall include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean, each person comprising
same, jointly and severally. References to persons shall include any legal
entities, including public or governmental bodies, agencies or
instrumentalities, and natural persons. The words "herein", "hereof",
"hereunder" and other similar compounds of the word "here" shall refer to the
entire Agreement and not to any particular provision or section. The words
"include" and "including" shall be interpreted as if followed by the words
"without limitation". Captions and headings in the Loan Documents are for
convenience only and shall not affect the construction of the Loan Documents.
4.13 NO PARTNERSHIP, ETC. The relationship between Lender and Borrower
is solely that of lender and borrower. Lender has no fiduciary or other special
relationship with or duty to Borrower and none is created by the Loan Documents.
Nothing contained in the Loan Documents, and no action taken or omitted pursuant
to the Loan Documents, is intended or shall be construed to create any
partnership, joint venture, association, or special relationship between
Borrower and Lender or in any way make Lender a co-principal with Borrower with
reference to the Project, the Property or otherwise. In no event shall Lender's
rights and interests under the Loan Documents be construed to give Lender the
right to control, or be deemed to indicate that Lender is in control of, the
business, properties, management or operations of Borrower.
4.14 RECORDS. The unpaid amount of the Loan set forth on the books and
records of Lender maintained in the ordinary course of its business shall be
presumptive evidence of the amount thereof owing and unpaid, but failure to
record any such amount on the books and records shall not limit or affect the
obligations of Borrower under the Loan Documents to make payments on the Loan
when due.
4.15 EXHIBITS. This Agreement includes the Exhibits listed below which
are marked by "X", all of which Exhibits are attached hereto and made a part
hereof for all purposes, it being agreed
10
that if any Exhibit to be executed and delivered contains blanks, the same shall
be completed correctly and in accordance with this Agreement prior to or at the
time of the execution and delivery thereof.
X Exhibit "A" - Legal description of the Land
-----
X Exhibit "B" - Basic Information
-----
X Exhibit "C" - Certain Conditions Precedent to the First Advance
-----
X Exhibit "D" - Budget
-----
X Exhibit "E" - Plans
-----
X Exhibit "F" - Advances
-----
X Exhibit "F-1" - Draw Request
-----
X Exhibit "G" - Survey Requirements
-----
4.16 CROSS DEFAULT. A Default hereunder or under any of the documents
evidencing or securing the Loan shall constitute an event of default under any
other indebtedness (now or hereafter existing) of Borrower to Lender. Any
default under any document evidencing or securing such other indebtedness shall
constitute a Default hereunder.
4.17 TITLE ENDORSEMENTS. When requested by Lender during the term of
the Loan, Borrower shall provide an endorsement to Lender's title policy which
reflects that (a) the real estate taxes for the Property have been paid; (b) no
new title matters have appeared of record to which Lender has not consented; and
(c) no liens, encumbrances or lis pendenses have been filed against the
Property, other than as specifically approved by Lender.
4.18 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 Agreement 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), the Rules of Practice and Procedure for
the Arbitration of Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and 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 Agreement may bring an action, including a summary or expedited proceeding,
to compel arbitration of any controversy or claim to which this agreement
applies in any court having jurisdiction over such action.
(a) SPECIAL RULES. The arbitration shall be conducted in Pinellas
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 Agreement shall be
deemed to i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Agreement; or ii) be a
waiver by Lender of the protection afforded to it by 12 U.S.C. ss. 91 or any
substantially equivalent state law; or (iii) limit the right of Lender (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. Lender 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 Agreement. At Lender's option, foreclosure
under a deed of trust or mortgage may be accomplished by any of the following:
the exercise of a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by judicial foreclosure.
Neither the 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.
11
No provision in the Loan Documents regarding submission to jurisdiction and/or
venue in any court is intended or shall be construed to be in derogation of the
provisions in any Loan Document for arbitration of any controversy or claim.
4.19 INTEREST RATE PROTECTION AGREEMENTS. Borrower shall duly and
punctually perform all covenants, terms, and agreements expressed as binding
upon Borrower under any Interest Rate Protection Agreements. Borrower
acknowledges that Borrower's obligations under any Interest Rate Protection
Agreements are obligations secured by the Mortgage. Further, Borrower
acknowledges and agrees that the occurrence of any event of default or defaults
under any Interest Rate Protection Agreement shall be a default under this
Agreement, and vice versa.
4.20 ENTIRE AGREEMENT. The Loan Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Loan and supersede all prior written
or oral understandings and agreements between Borrower and Lender with respect
to the matters addressed in the Loan Documents. In particular, and without
limitation, the terms of any commitment by Lender to make the Loan are merged
into the Loan Documents. Lender has not made any commitments to extend the term
of the Loan past its stated maturity date or to provide Borrower with financing
except as set forth in the Loan Documents. Except as incorporated in writing in
the Loan Documents, there are not, and were not, and no persons are or were
authorized by Lender to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the matters addressed
in the Loan Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and DELIVERED as of February 18, 1999.
Borrower's Address for Notices: BORROWER:
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 PLASMA-THERM, INC., a Florida
corporation
By: /s/ XXXXX X. XXXXXX
----------------------------
The Federal Tax Identification Number Xxxxx X. Xxxxxx
of Borrower: Vice President and
Chief Financial Officer
00-0000000
(CORPORATE SEAL)
Lender's Address for Notices: LENDER:
Attn: Real Estate Loan Administration NATIONSBANK, N.A., a national
000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01) banking association
Xxxxx, XX 00000
By: /s/ SADAHRI XXXXX
----------------------------
Sadahri Xxxxx
----------------------------
Legibly Print Name of Officer
Its Vice President
(CORPORATE SEAL)
12
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I
Xxx 00, Xxxxx X xx XXXXXXXXXXX XXXXXXXX XXXX XXXXX II, according to the
plat thereof recorded in Plat Book 103, Pages 25 and 26 of the Public
Records of Pinellas County, Florida, less the North 130.00 feet
thereof, together with Xxx 00, Xxxxx X xx Xxxxxxxxxxx Xxxxxxxx Xxxx,
Xxxxx II, according to a plat thereof as recorded in the Public Records
of Pinellas County, Florida recorded in Plat Book 103, Pages 25 and 26.
PARCEL II
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all in Block
C of METROPOINTE COMMERCE PARK PHASE II, according to the map or plat
thereof recorded in Plat Book 103, pages 25 and 26, Public Records of
Pinellas County, Florida.
13
EXHIBIT "B"
BASIC INFORMATION
A. SPECIFIC DEFINITIONS:
1. "APPRAISED VALUE" means $6,800,000.00 (market - "use" value)
2. "BORROWER" means Plasma-Therm, Inc., a Florida corporation
3. "COMPLETION DATE" means April 18, 2000
4. "CONTRACTOR" means The Perry Company
5. "FINANCIAL STATEMENTS" means, in accordance with the
requirements of this Section, a balance sheet, income statement, statements of
cash flow and amount and sources of contingent liabilities, and a reconciliation
of changes in equity, and, unless Lender otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a parent
of a subsidiary entity. In this Section, each party for whom Financial
Statements are required is a "reporting party" and a specified period to which
the required Financial Statements relate is a "reporting period". Borrower shall
provide or cause to be provided to Lender the following:
(a) Annual unqualified audited Financial Statements of Borrower for
each fiscal year of Borrower, as soon as reasonably practicable and in
any event within one hundred twenty (120) days after the close of each
fiscal year.
(b) Quarterly Borrower-prepared unaudited Financial Statements (Form
10-Q) concerning Borrower's business on a consolidated and
consolidating basis for each fiscal quarter of Borrower, as soon as
reasonable practicable and in any event within forty-five (45) days
after the close of each fiscal quarter.
(c) Such additional financial statements, profit and loss
statements, and other accounting data related to Borrower as may be
reasonably requested by Lender from time to time concerning Borrower.
All Financial Statements shall be in form and detail satisfactory to Lender and
shall contain or be attached to the signed and dated written certification of
the reporting party in form specified by Lender to certify that the Financial
Statements are furnished to Lender in connection with the extension of credit by
Lender and constitute a true and correct statement of the reporting party's
financial position. All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of the entity
satisfactory to Lender. All fiscal year-end Financial Statements of Borrower
shall be audited and certified, without any qualification or exception not
acceptable to Lender, by independent certified public accountants acceptable to
Lender, and shall contain all reports and disclosures required by generally
accepted accounting principles for a fair presentation, including a certificate
of the accountant in form and substance satisfactory to Lender to the effect
that said accountant has no knowledge that any event of Default, or any event
which with notice and/or lapse of time would become an event of Default as set
forth herein, has occurred and is continuing, or, if he has knowledge that any
such event has occurred and is continuing, specifying the details thereof. For
purposes of this Agreement and other Loan Documents, the accounting firm of
Xxxxx Xxxxxxxx LLP shall be acceptable to Lender until such time as Lender shall
notify Borrower to the contrary.
6. "IMPROVEMENTS" means all on-site and off-site improvements to the
Land for a 33,020 square foot (MOL) office/manufacturing facility, including
leasehold improvements, to be constructed on Parcel I of the Land, together with
all fixtures and appurtenances now or later to be located on the Land and/or in
such improvements.
7. "INITIAL LAND ADVANCE" means N/A.
14
8. "INTEREST RATE PROTECTION AGREEMENT" means any and all interest rate
swap agreements, interest cap agreements, interest rate collar agreements,
exchange agreements, forward currency exchange agreements, forward rate currency
or interest rate options, foreign currency hedge, or any similar agreements or
arrangements entered into by Borrower and Lender in connection with the Loan to
hedge the risk of variable interest rate volatility or fluctuations of interest
rates, as such agreements or arrangements may be modified, supplemented, and in
effect from time to time, and any and all cancellations, buy backs, reversals,
terminations, or assignments of any of the foregoing.
9. "LOAN" means the construction\term loan by Lender to Borrower, in
the principal amount of $4,500,000.00.
10. "PERMITTED CHANGES" means changes to the Plans or Improvements,
provided the cost of any single change or extra does not exceed $25,000.00 and
the aggregate amount of all such changes and extras (whether positive or
negative) does not exceed $100,000.00.
11. "PROJECT" means the acquisition of Parcel I of the Land, the
construction of the Improvements, and if applicable, the operation of the
Improvements.
12. "STORED MATERIALS ADVANCE LIMIT" means $ -0- .
-----------------
13. "TITLE INSURER" means First American Title Insurance Company.
B. GENERAL DEFINITIONS:
1. "BUDGET" means the budget and cost itemization for the Project
attached as EXHIBIT "D".
2. "CONSTRUCTION CONSULTANT" means the construction consultant, if any,
engaged by Lender with respect to the Project.
3. "DEFAULT" is defined in Section 3.1 of this Agreement.
4. "ENVIRONMENTAL AGREEMENT" means the Environmental Indemnity
Agreement of even date herewith between Borrower and Lender.
5. "EXCUSABLE DELAYS" means unusually adverse weather conditions which
have not been taken into account in the construction schedule, fire, earthquake
or other acts of God, strike, lockout, acts of public enemy, riot or
insurrection or any unforeseen circumstances or events (except financial
circumstances or events or matters which may be resolved by the payment of
money) beyond the control of Borrower, not to exceed a total of thirty (30)
days, provided Borrower shall notify Lender in writing within five (5) days
after such occurrence, but no Excusable Delay shall extend the Completion Date
or suspend or xxxxx any obligation of Borrower or any Guarantor or any other
person to pay any money.
6. "INDEBTEDNESS" means any and all indebtedness to Lender evidenced,
governed or secured by, or arising under, any of the Loan Documents, including
the Loan.
7. "LAND" means the real estate described in EXHIBIT "A".
8. "LOAN DOCUMENTS" means this Agreement (including all exhibits), the
Mortgage, the Note, the Environmental Agreement, any financing statements, the
Budget, each Draw Request and such other documents evidencing, securing or
pertaining to the Loan as shall, from time to time, be executed and/or delivered
by Borrower or any other party to Lender pursuant to this Agreement.
9. "MORTGAGE" means the first Mortgage, Assignment of Rents and
Security Agreement securing repayment of the Indebtedness.
15
10. "NOTE" means the promissory note executed by Borrower in the amount
of $4,500,000.00.
11. "PLANS" means the plans and specifications listed in EXHIBIT "E",
and all permits issued in connection with construction of the Project.
12. "PROPERTY" means the Land, the Improvements and all other property
constituting the "Mortgaged Property," as described in the Mortgage, or subject
to a right, lien or security interest to secure the Loan pursuant to any other
Loan Document.
13. "TITLE INSURANCE" means the title insurance described in
EXHIBIT "C".
16
EXHIBIT "C"
CERTAIN CONDITIONS PRECEDENT TO THE FIRST ADVANCE
1. FEES AND EXPENSES. Lender shall have received any required
Commitment Fee and Borrower shall have paid all other fees, costs and expenses
then required to be paid pursuant to this Agreement and any other Loan
Documents.
2. FINANCIAL STATEMENTS. Lender shall have received and approved the
Financial Statements of Borrower and Guarantor or any other party required by
any loan application or commitment or otherwise required by Lender.
3. APPRAISAL. Lender shall have received and approved a market value
appraisal made within sixty (60) days of the date of this Agreement, which
appraises the Property on a "completed value" basis at not less than the
Appraised Value. The appraiser and appraisal must be satisfactory to Lender
(including satisfaction of applicable regulatory requirements) and the appraiser
must be engaged directly by Lender.
4. DRAW SCHEDULE AND BUDGET. Lender shall have received and approved
Borrower's proposed draw schedule, and construction schedule, for the Project.
5. AUTHORIZATION. Lender shall have received and approved evidence
Lender requires of the existence, good standing, authority and capacity of
Borrower to execute, deliver, and perform the Loan Documents, including but not
limited to:
(a) For each corporation: i) a copy of its articles of incorporation
and by-laws, and all amendments thereto, a certificate of incumbency of all of
its officers who will be authorized to execute or attest any of the Loan
Documents, and a copy of resolutions approving the Loan Documents and
authorizing the transactions contemplated in this Agreement; and ii)
certificates of existence, good standing and qualification to do business in the
state of its creation and if different, in the state where the Project is
located, issued by the appropriate governmental officials.
(b) All certificates, resolutions, and consents required by Lender
applicable to the foregoing.
6. LOAN DOCUMENTS. Borrower, Guarantor and each other person or entity
required by Lender shall have duly executed, acknowledged and/or sworn to as
required, recorded or filed, and delivered to Lender all Loan Documents then
required by Lender, dated the date of this Agreement, all in form and content
satisfactory to Lender.
7. OPINIONS. Lender shall have received the written opinion of counsel
for the Borrower addressed to Lender, dated the date of this Agreement, which
satisfies the requirements of the loan commitment letter issued by Lender to
Borrower dated April 16, 1998, as amended by letters dated September 10, 1998
and December 3, 1998.
8. SURVEY; NO SPECIAL FLOOD HAZARD. Lender shall have received three
(3) prints of an original survey of the Land and improvements thereon dated not
more than sixty (60) days prior to the date of this Agreement (or dated such
earlier date, if any, as is satisfactory to the Title Insurer, but in any event
not more than one hundred eighty (180) days prior to the date of this Agreement)
satisfactory to Lender and the Title Insurer and otherwise complying with
EXHIBIT "G", and otherwise in compliance with the requirements of the Loan
Documents, and containing evidence satisfactory to Lender that none of the Land
is located in a flood hazard area.
9. TITLE INSURANCE. Lender shall have received and approved one or more
title insurance policies or a title insurance commitment marked through the Loan
closing date with all Schedule B-1 requirements deleted, as Lender may require,
issued by the Title Insurer in the maximum amount of the Loan, on a coinsurance
and/or reinsurance basis if and as required by Lender, insuring that the
Mortgage constitutes a valid lien covering the Land and all improvements
thereon, having the priority
17
required by Lender and subject only to those exceptions and encumbrances
(regardless of rank or priority) Lender approves, in a form acceptable to
Lender, and with all "standard" exceptions which can be deleted, including the
exception for matters which a current survey would show, deleted to the fullest
extent authorized under applicable title insurance rules, and Borrower shall
satisfy all requirements therefor; containing no exception for standby fees or
real estate taxes other than those for the year in which the closing occurs to
the extent the same are not then due and payable and endorsed "not yet due and
payable" and no exception for subsequent assessments for prior years; providing
full coverage against mechanics' and materialmen's liens to the extent
authorized under applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring that no restrictive covenants shown in the
Title Insurance have been violated, and that no violation of the restrictions
will result in a reversion or forfeiture of title; insuring that fee simple
indefeasible or marketable (as coverage is available) fee simple title to the
Land and Improvements is vested in Borrower; containing such endorsements as
Lender may require and are available under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; insuring any easements,
leasehold estates or other matters appurtenant to or benefitting the Land and/or
the Improvements as part of the insured estate; insuring the right of access to
the Land to the extent authorized under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; and containing provisions
acceptable to Lender regarding advances of Loan funds after closing. Borrower
and Borrower's counsel shall not have any interest, direct or indirect, in the
Title Insurer (or its agent) or any portion of the premium paid for the Title
Insurance.
10. PLANS. Lender shall have received and approved two (2) true and
correct copies of all existing Plans signed and sealed by the architect
(including the site plan), together with satisfactory evidence that all
applicable governmental authorities, Borrower, Borrower's architect, engineer,
and contractors and Construction Consultant have approved the same, and
Construction Consultant has reviewed the Plans.
11. CONTRACTS. Lender shall have received and approved (a) a list
containing the names and addresses of all existing contractors, architects,
engineers, and other suppliers of services and materials for the Project (but
only to the extent such information is supplied to Borrower by the Contractor),
their respective contract amounts, and a copy of their contracts; and (b) duly
executed, acknowledged and delivered originals from each contractor, architect,
engineer, subcontractor, or supplier of services or materials required by
Lender, of i) consents or other agreements satisfactory to Lender and ii)
agreements satisfactory to Lender subordinating all rights, liens, claims and
charges they may have or acquire against Borrower or the Property to the rights,
liens and security interests of Lender.
12. INSURANCE POLICIES. Lender shall have received and approved
insurance evidence certificates or other certificates deemed acceptable to
Lender of the insurance policies required by Lender, pursuant to the Loan
Documents, together with evidence satisfactory to Lender that all premiums
therefor have been paid and that the policies are in full force and effect; such
insurance policies shall include the following, and Borrower shall cause them to
be maintained in full force and effect at all times throughout the term of the
Loan:
(a) Hazard insurance insuring the Improvements and all Personal
Property, which now or hereafter may constitute part of the Property, against
loss or damage by fire and other hazards included within the term "all risk" or
"extended coverage" and against such other hazards as Lender may require in the
full insurable value thereof (or such lesser amount as Lender may authorize in
writing), with an insurer satisfactory to Lender. Such policy shall include a
Replacement Cost and Agreed Amount/Stipulated Value Endorsement and a Sinkhole
Endorsement, if deemed necessary by Lender.
(b) a "Broad Form Comprehensive General Liability" insurance
coverage for both Borrower and any contractor performing services to the
Property in the minimum coverage amount of One Million Dollars ($1,000,000.00)
per occurrence and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00 or CSL of Ten
Million Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00 or
greater.
18
(c) if at any time the Land or any portion thereof is located in a
"Flood Hazard Area" pursuant to the Flood Disaster Protection Act of 1973 or any
successor or supplemental act thereto, flood insurance in the maximum amount
available under the Flood Insurance Act or such other amount as Lender may
reasonably request. Lender may require additional flood insurance from the
secondary market.
(d) an "All risk", non-reporting, completed value builder's risk
insurance policy, which policy shall include Agreed Amount, Replacement Cost,
Permit to Occupy and Vandalism/Malicious Mischief Endorsements.
(e) boiler and machinery insurance, worker's compensation insurance,
wind damage insurance, and other insurance coverages as Lender may reasonably
require.
The policy or policies of insurance shall i) be from companies and in
coverage amounts acceptable to Lender, ii) contain a standard mortgagee clause
in favor of Lender naming Lender 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 Lender, and iv) be evidenced
by original policies or certified copies of policies deposited with Lender, as
Lender may elect, to be held by Lender until the Indebtedness shall have been
fully paid and discharged. Borrower shall furnish Lender 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 Lender at:
000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01)
Xxxxx, Xxxxxxx 00000
Attn: Loan Administration Section,
Real Estate Banking Group
13. ENVIRONMENTAL COMPLIANCE/REPORT. Lender shall have received and
approved evidence satisfactory to Lender that no portion of the Land is
"wetlands" under any applicable law and that the Land does not contain and is
not within or near any area designated as a hazardous waste site by any
governmental authority, that neither the Property nor any adjoining property
contains or has ever contained any substance classified as hazardous or toxic
(or otherwise regulated, such as, without limitation, asbestos, radon and/or
petroleum products) under, and that neither the Property nor any use or activity
thereon violates or is or could be subject to any response, remediation,
clean-up or other obligation under, any law or governmental requirement
pertaining to health or the environment, including without limitation, a written
report of an environmental assessment of the Property, made within one hundred
eighty (180) days prior to the date of this Agreement, by an engineering firm,
and of a scope and in form and content satisfactory to Lender, complying with
Lender's established guidelines, showing that there is no evidence of any such
substance which has been generated, treated, stored, released or disposed of in
the Property, and such additional evidence as may be required by Lender. All
reports, drafts of reports, and recommendations, whether written or oral, from
such engineering firm shall be made available and communicated to Lender.
14. SOIL REPORTS. Lender and Construction Consultant shall have
received and reviewed a soil composition and test boring report and a foundation
report satisfactory to Lender regarding the Land, by a licensed professional
engineer satisfactory to Lender. Any recommendations of the engineer in the soil
report shall be incorporated into the Plans.
15. ACCESS, UTILITIES, AND LAWS. Lender shall have received and
approved (a) satisfactory evidence that the Property abuts and has fully
adequate direct and free access to one or more public streets, dedicated to
public use, fully installed and accepted by the appropriate governmental
authority, that all costs and expenses of the installation and acceptance
thereof have been paid in full, and that there are no restrictions on the use
and enjoyment of such streets which would adversely
19
affect the Project; (b) letters from the applicable utility companies or
governmental authorities confirming that all utilities necessary for the
Improvements are available at the Land in sufficient capacity, together with
evidence satisfactory to Lender of paid impact fees or utility reservation
deposits or connection fees required to assure the availability of such
services; (c) satisfactory evidence that all applicable zoning ordinances,
restrictive covenants and governmental requirements affecting the Property
(including those relating to the local government Comprehensive Planning and
Land Development Regulation Act, ss. 163.3161, ET SEQ., FLORIDA STATUTES) permit
the use for which the Property is intended and have been or will be complied
with without the necessity of variance and without the Property being a
nonconforming use; (d) evidence satisfactory to Lender that the Land and
Improvements comply and will comply with all laws and governmental requirements
regarding subdivision and platting and would so comply if the Land and the
Improvements thereon were conveyed as a separate parcel; (e) a true and correct
copy of a valid building permit for the Improvements, together with all other
permits and approvals necessary for construction of the Improvements; and (f)
evidence satisfactory to Lender of compliance by Borrower and the Property, and
the proposed construction, use and occupancy of the Improvements, with such
other applicable laws and governmental requirements as Lender may request,
including all laws and governmental requirements regarding access and facilities
for handicapped or disabled persons including, without limitation and to the
extent applicable, Part V of the Florida Building Construction Standards Act
entitled "Accessibility by Handicapped Persons", Chapter 553, FLORIDA STATUES;
The Federal Architectural Barriers Act (42 U.S.C. ss. 4151 ET SEQ.), The Fair
Housing Amendments Act of 1988 (42 U.S.C. ss. 3601 ET SEQ.), The Americans With
Disabilities Act of 1990 (42 U.S.C. ss. 12101 ET SEQ.), The Rehabilitation Act
of 1973 (29 U.S.C. ss. 794) and any applicable state requirements.
16. PRIORITY. Lender shall have received and approved (a) evidence
satisfactory to Lender that prior to and as of the time the Mortgage was filed
for record i) no activity or circumstance was visible on or near the Land which
would constitute inception of a mechanic's or materialman's lien against the
Property, ii) no contract, or memorandum thereof, for construction, design,
surveying, or any other service relating to the Project has been filed for
record in the county where the Property is located; iii) no mechanic's or
materialman's lien claim or notice, lis pendens, judgment, or other claim or
encumbrance against the Property has been filed for record in the county where
the Property is located or in any other public record which by law provides
notice of claims or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to Lender, reflecting the results
of searches made not earlier than ten (10) days prior to the date of this
Agreement, i) of the central and local Uniform Commercial Code records, showing
no filings against any of the collateral for the Loan or against Borrower
otherwise except as consented to by Lender; and ii) if required by Lender, of
the appropriate judgment and tax lien records, showing no outstanding judgment
or tax lien against Borrower or any Guarantor.
17. BONDS. Lender shall have received and approved (a) a performance
bond for the Contractor, in form and content satisfactory to Lender and in an
amount equal to 100% of the construction price; and (b) a payment bond for the
Contractor, in form and content satisfactory to Lender and in an amount equal to
100% of the construction contract price; and if required by Lender duly recorded
before any construction is commenced. Each bond shall be issued by a corporate
surety acceptable to Lender and authorized and admitted to do business and to
execute bonds in the state where the Project is located and shall name Lender as
an additional obligee.
18. PAID TAX RECEIPTS. Lender shall have received and approved
satisfactory evidence (a) that all taxes, standby fees and any other similar
charges have been paid, including copies of receipts or statements marked "paid"
by the appropriate authority; and (b) that the Land is or will be prior to the
issuance of the first tax xxxx coming due after the date of this Agreement, a
separate tax lot or lots with separate assessment or assessments of the Land and
Improvements, independent of any other land or improvements. For purposes of
this Agreement, appropriate notations of paid taxes in the Title Insurance
information described above shall satisfy the requirements of (a) herein.
19. NOTICE TO CONTRACTOR AND LIENORS OF HARD COST REALLOCATION. If the
Draw Request requires an amendment to the Budget or reallocation of hard cost
items which would require contractor and lienor notice under Section
713.3471(2), Florida Statutes, Borrower, as owner, shall serve the Contractor
and all required lienors, written notice in compliance with Section 713.3471(2),
20
Florida Statutes, and shall deliver such notice to Lender, countersigned by the
Contractor and any lienors who have provided notices to owner.
20. OTHER DOCUMENTS. Borrower and any other person or entity, shall
have delivered to Lender, in form and content satisfactory to Lender, such other
documents and certificates as Lender may reasonably request.
21
EXHIBIT "D"
BUDGET
22
EXHIBIT "E"
IDENTIFICATION OF PLANS AND SPECIFICATIONS
23
EXHIBIT "F"
ADVANCES
1. DRAW REQUEST. A "DRAW REQUEST" means a properly completed and
executed written application by Borrower to Lender in the form of EXHIBIT "F-1"
(or in another form approved by Lender) setting forth the amount of Loan
proceeds desired, together with such schedules, affidavits, releases, waivers,
statements, invoices, bills, and other documents, certificates and information
required by Lender. At least five (5) business days before the requested date of
each advance, Borrower shall deliver a Draw Request to Lender. Borrower shall be
entitled to an advance only in an amount approved by Lender in accordance with
the terms of this Agreement and the Loan Documents. Lender shall not be required
to make advances more frequently than once each calendar month. Lender shall,
only upon the satisfaction of all applicable conditions of this Agreement and
the Loan Documents, make the requested advance to Borrower on a business day
within five (5) business days after such satisfaction. Each Draw Request, and
Borrower's acceptance of any advance, shall be deemed to ratify and confirm that
all representations and warranties in the Loan Documents remain true and correct
as of the date of the Draw Request and the advance, respectively. Borrower
hereby designates Xxxxxx X. XxXxxxxxx or Xxxxx X. Xxxxxx as having authority to
sign all Draw Requests on Borrower's behalf.
2. ADVANCES. Borrower shall disburse all advances made to Borrower, for
payments of the costs and expenses specified in the Budget for which the
advances were made, and for no other purpose. Following receipt and approval of
a Draw Request, all supporting documentation and information, and receipt and
approval of a written or verbal report from Construction Consultant, Lender will
determine the amount of the advance it will make in accordance with this
Agreement, the Loan Documents, the Budget, and the following standards:
(a) An initial advance in the amount of the Initial Land Advance
will be made for the acquisition of the Land.
(b) For construction work, advances will be made on the basis of
ninety percent (90%) of the costs shown on the application for payment from the
contractor reviewed and approved by Lender and the Lender's Construction
Consultant of the work or material in place on the Improvements that comply with
the terms of the Loan Documents, minus all previous advances and all amounts
required to be paid by Borrower, as described in Columns (B) and (C) of the
Budget.
(c) Loan disbursements will be made for the cost of non-construction
items on the basis of one hundred percent (100%) of the costs of all approved
invoices therefor, up to the maximum amount of such costs set forth in the Loan
Budget.
(d) Advances will not be made for building materials or furnishings
that are not yet incorporated into the Improvements ("stored materials") unless
the stored materials are in Borrower's possession and satisfactorily stored on
the Land, no materials are stored for a time period exceeding forty-five (45)
days, Lender has a lien on such materials which is prior to the lien of any
other secured party, Lender has received and approved all invoices for the
materials to be stored on-site and the aggregate of advances for stored
materials that have not yet been incorporated into the Improvements does not
exceed the Stored Materials Advance Limit. The advances for stored materials
will be limited to 90% of the invoice cost of the materials.
(e) Lender will not make advances for any Borrower "developer fees".
3. CONDITIONS TO THE FIRST ADVANCE. As conditions precedent to the
first advance hereunder: (a) there shall then exist no Default or any event
which, with the giving of notice or the lapse of time, or both, could become a
Default; (b) the representations and warranties made in the Loan Documents shall
be true and correct; (c) each contract to be made by Borrower for any labor,
materials, services and/or other work for or in connection with construction of
the Improvements shall have been duly executed and delivered by all parties
thereto and shall be fully effective, and Lender shall have received a true,
complete executed original counterpart of each such contract;
24
(d) Borrower must have satisfied the conditions required under the Loan
Documents, including those identified in EXHIBIT "C" and Section 4 below; (e)
Borrower must have paid all amounts required to be paid by Borrower as described
in Columns (B) and (C) of the Budget, and (f) Borrower must have delivered to
Lender a Draw Request.
4. CONDITIONS TO ALL ADVANCES. As conditions precedent to each advance
made pursuant to a Draw Request in addition to all other requirements contained
in the other Loan Documents, Borrower must satisfy the following conditions, and
deliver to Lender evidence of such satisfaction:
(a) All conditions precedent to the first advance have been and
continue to be satisfied.
(b) No Default or any event which, with the giving of notice or the
lapse of time, or both, could become a Default exists.
(c) The representations and warranties made in the Loan Documents
must be true and correct on and as of the date of each advance.
(d) Each subcontract or other contract for labor, materials,
services and/or other work included in a Draw Request shall have been duly
executed and delivered by all parties thereto and shall be effective, and Lender
shall have received a true, complete copy of a fully executed copy of each such
subcontract or other contract as Lender may have requested.
(e) No mechanics or materialmen's lien or other encumbrance shall
have been filed and remain in effect against the Property, and releases or
waivers of mechanics' liens and receipted bills showing payment of all amounts
due to all parties who have furnished materials or services or performed labor
of any kind in connection with the Property shall have been obtained.
Additionally, Borrower shall provide an affidavit stating that the advances made
up to the date of the signing of the affidavit have been paid to the appropriate
parties.
(f) The Title Insurance shall have been endorsed and down-dated in a
manner satisfactory to Lender to increase the coverage by the amount of each
advance through the date of each such advance with no additional title change or
exception not approved by Lender.
(g) Lender shall have received written certification by Borrower's
Construction Consultant, and if required by Lender by the architect, that to the
best of such party's knowledge, information, and belief, construction is in
accordance with the Plans, the quality of the work for which the advance is
requested is in accordance with the applicable contract, the amount of the
advance requested represents work in place based on onsite observations and the
data compromising the Draw Request, the work has progressed as indicated, and
the applicable contractor is entitled to payment of the amount certified.
(h) Lender shall have received a foundation survey made immediately
after, but in no event later than fifteen (15) days after, the laying of the
foundation of each building or structure of the Improvements satisfactory to
Lender complying with EXHIBIT "G", and certifying as to the absence of
encroachments from, or onto, the Property and compliance of the Improvements, as
then-constructed, with zoning laws and other relevant restrictions.
(i) Lender shall have received within fifteen (15) days after the
pouring of concrete for any Improvements, a report satisfactory to Lender and
Construction Consultant of the results of concrete tests made at the time the
concrete is poured. The concrete tests shall not be made by any of the
contractors working on the Improvements.
(j) Lender shall have received within fifteen (15) days after the
compaction of any soil for construction, a report satisfactory to Lender and
Construction Consultant of the results of soil tests.
(k) As of the date of making such advance, no event shall have
occurred, nor shall any condition exist, that could have an adverse effect on
the enforceability of the Loan Documents,
25
be materially adverse to the financial condition of Borrower, impair the ability
of Borrower to fulfill its material obligations under the Loan Documents, or
otherwise have any adverse effect whatsoever on the Property.
(l) The Improvements shall not have been damaged and not repaired.
(m) Borrower shall have paid all amounts required to be paid by
Borrower under Columns (B) and (C) of the Budget.
(n) Borrower shall have made the Borrower's Deposit if required by
Section 1.4 of this Agreement.
(o) Borrower shall have delivered to Lender such other information,
documents and supplemental legal opinions as may be required by Lender.
(p) With respect to any advance to pay a contractor, Lender shall
have received original applications for payments in form approved by Lender,
containing a breakdown by trade and/or other categories acceptable to Lender,
executed and certified by each contractor and the architect, accompanied by
invoices, and approved by Construction Consultant. Copies of invoices or other
acceptable documentation shall be submitted to substantiate Borrower's requests
for payment of Project-related "soft costs".
5. FINAL ADVANCE FOR IMPROVEMENTS. In the case of the final Draw
Request, Lender shall have received the following as additional conditions
precedent to the requested advance:
(a) Certificates (on a form to be provided by Lender) from the
Borrower, the Contractor and, if required by Lender, from the Construction
Consultant, certifying that the Improvements (including any off-site
improvements) have been completed in accordance with, and as completed comply
with, the Plans and all laws and governmental requirements, together with the
AIA G704 Certificate of Substantial Completion form from each of said
professionals; and Lender shall have received two (2) sets of detailed signed
and sealed "as built" Plans approved in writing by Borrower, the Lender's
Construction Consultant, and Contractor. The Plans must include plans and
specifications for architectural, structural, mechanical, plumbing, electrical
and site development work (including storm drainage, utility lines and
landscaping).
(b) Final affidavits (in a form approved by Lender) from Borrower
and the Contractor certifying that each of them and their subcontractors,
laborers, and materialmen, as applicable, have been paid in full for all labor
and materials for construction of the Improvements; and final lien releases or
waivers (in a form approved by Lender) by Borrower, Contractor, and all
subcontractors, materialmen, and other parties who have supplied labor,
materials, or services for the construction of the Improvements, or who
otherwise might be entitled to claim a contractual, statutory or constitutional
lien against the Property.
(c) The Title Insurance shall be endorsed to remove any exception
for mechanics' or materialmen's liens or pending disbursements, with no
additional title change or exception objectionable to Lender, and with such
other endorsements required by Lender.
(d) Evidence satisfactory to Lender that all laws and governmental
requirements have been satisfied, including receipt by Borrower of all necessary
governmental licenses, certificates and permits (including certificates of
occupancy) with respect to the completion, use, occupancy and operation of the
Improvements, together with evidence satisfactory to Lender that all such
licenses, certificates, and permits are in full force and effect and have not
been revoked, canceled or modified.
(e) Evidence satisfactory to Lender that all impact fees for the
Project have been paid.
(f) Three (3) copies of a final as-built survey of the Property
satisfactory to Lender, showing all Improvements in place, including striping of
parking areas and a statement as to the number of parking spaces, and otherwise
complying with EXHIBIT "G".
26
(g) A certification by the surety that it has approved the final
Loan disbursement to the contractor, on an AIA form G707 or such other form as
shall be acceptable to Lender.
(h) At such time as the Improvements are occupied, an evidence
certificate of an "all risk" permanent hazard insurance policy must be submitted
to Lender. The policy: shall be from a company satisfactory to Lender with an
A-XII Best's Rating or better; shall be in an amount satisfactory to Lender;
shall include a Replacement Cost and Agreed Amount/Stipulated Value Endorsement;
shall include a Sinkhole Endorsement, if appropriate; and shall include
provisions for a minimum 30-day advance written notice to Lender of any intended
policy cancellation, non-renewal or material modifications; and shall designate
Lender as mortgagee and loss payee. Borrower shall submit satisfactory evidence
that all insurance premiums have been paid.
6. DIRECT ADVANCES. Borrower hereby irrevocably authorizes Lender (but
Lender shall have no obligation) to advance Loan funds directly to itself to pay
interest due on the Loan. Each such direct advance (except for application of a
Borrower's Deposit) shall be added to the outstanding principal balance of the
Loan and shall be secured by the Loan Documents. Unless Borrower pays such
interest from other resources, Lender may advance Loan funds pursuant to this
Section for interest payments as and when due. Nothing contained in this
Agreement shall be construed to permit Borrower to defer payment of interest on
the Loan beyond the date(s) due. The allocation of Loan funds in the Budget for
interest shall not affect Borrower's absolute obligation to pay the same in
accordance with the Loan Documents. Lender may hold, use, disburse and apply the
Loan and the Borrower's Deposit for payment of any obligation of Borrower under
the Loan Documents. Borrower hereby assigns and pledges the proceeds of the Loan
and any Borrower's Deposit to Lender for such purposes. Lender may advance and
incur such expenses as Lender deems necessary for the completion of the
Improvements and to preserve the Property and any other security for the Loan,
and such expenses, even though in excess of the amount of the Loan, shall be
secured by the Loan Documents and shall be payable to Lender on demand. Lender
may disburse any portion of any advance at any time, and from time to time, to
persons other than Borrower for the purposes specified in this Section and the
amount of advances to which Borrower shall thereafter be entitled shall be
correspondingly reduced.
7. CONDITIONS AND WAIVERS. All conditions precedent to the obligation
of Lender to make any advance are imposed hereby solely for the benefit of
Lender, and no other party may require satisfaction of any such condition
precedent or be entitled to assume that Lender will refuse to make any advance
in the absence of strict compliance with such conditions precedent. Any
requirement of this Agreement may be waived, in whole or in part, in a specific
written waiver intended for that purpose and signed by Lender. Lender shall have
the right to approve and verify the periodic progress, costs incurred by
Borrower, and the estimated costs remaining to be incurred, after consultation
with the Construction Consultant. No advance shall constitute an approval or
acceptance by Lender of any construction work, a waiver of any condition
precedent to any further advance, or preclude Lender from thereafter declaring
the failure of Borrower to satisfy such condition precedent to be a Default. No
waiver by Lender of any condition precedent or obligation shall preclude Lender
from requiring such condition or obligation to be met prior to making any other
advance or from thereafter declaring the failure to satisfy such condition or
obligation to be a Default.
8. FUNDING. Borrower shall establish and maintain a special account
with Lender into which advances funded directly to Borrower (but no other
funds), and excluding direct disbursements made to or by Lender pursuant to this
Agreement, shall be deposited by Borrower, and against which checks shall be
drawn only for the payment of costs specified in the Budget, but which special
account shall not be used for any other purpose. Borrower hereby irrevocably
authorizes Lender to deposit each advance requested by Borrower to the credit of
Borrower in that account, by wire transfer or other deposit. Advances may also
be made, in addition to other methods contemplated herein, at Lender's option,
by direct or joint check payment to any or all persons entitled to payment for
work or services performed or material furnished in connection with the Project
or the Loan, or by having the proceeds thereof made available to the Title
Insurer (or its agent) for disbursement. Lender shall not be required to, and
has no responsibility to, supervise the proper application or distribution of
funds to third parties.
27
9. COMPLIANCE WITH PROMPT PAYMENT LAW. Borrower shall comply with the
Construction Contract Prompt Payment Law contained in the Florida Construction
Lien Law, Chapter 713, FLORIDA STATUTES, notwithstanding Lender's failure or
delay in funding any Draw Requests or Lender's cessation of funding Draw
Requests in accordance with the terms of this Agreement.
10. CONSTRUCTION LIEN LAW NOTIFICATION REQUIREMENTS. Borrower hereby
authorizes Lender to provide written notices to Contractor and lienors providing
notices to owner pursuant to ss. 713.3471(1)(a), FLORIDA STATUTES, and ss.
713.3471(2)(b), FLORIDA STATUTES, to the extent such notices are required by
law. Borrower hereby releases Lender and waives all claims it may have against
Lender for damages Borrower may incur as a result of Lender's failure to deliver
said notices. Borrower hereby agrees to provide all required notices to the
Contractor and all lienors providing notices to owner in compliance with ss.
713.3471(2)(a), FLORIDA STATUTES, in a timely fashion.
11. POST-CLOSING ENVIRONMENTAL ASSESSMENTS. In addition to the
environmental report required to be furnished to Lender as a condition precedent
to the Loan closing and the First Advance, Lender may, at Lender's sole option,
and at the Borrower's expense, require an environmental assessment or updated
assessment of the Property by an engineering firm, and of a scope and in form
and content satisfactory to Lender, complying with Lender's established
guidelines, showing that there is no evidence of any hazardous or toxic
substances which have been generated, treated, stored, released or disposed of
in the Property, except for such hazardous or toxic substances lawfully used by
the Borrower in the ordinary course of Borrower's business operations on the
Property, and such additional evidence as may be required by Lender. Borrower
agrees at its sole expense to provide such environmental assessments when
requested by Lender. If any environmental assessment indicates the past or
present use, handling, storage, transportation or disposal of hazardous or toxic
materials, except for such hazardous or toxic substances lawfully used by the
Borrower in the ordinary course of Borrower's business operations on the
Property, such shall constitute a Default by the Borrower under the Loan
Documents. Notwithstanding anything contained herein to the contrary, Lender
shall not request updated environmental assessments pursuant to this Section
unless: (a) the Loan is in Default, or (b) if required by any governmental law
or regulation or (c) no more than once in any calendar year for good cause (i.e.
Lender has reason to believe the Property has been or is presently being used
for the handling, storage, transportation or disposal of hazardous or toxic
materials in violation of any governmental law or regulation).
28
EXHIBIT "F-1"
DRAW REQUEST
AIA G702 and G703 Application for Payment forms
29
EXHIBIT "G"
SURVEY REQUIREMENTS
BOUNDARY SURVEY AND FOUNDATION SURVEY
These items are to be included and shown:
1. The complete and correct legal description of the Mortgaged Premises as shown
on the title insurance commitment. (NOTE: It must be possible to trace the legal
description of the Mortgaged Premises on the survey by following the bearings
and dimensions around the boundaries of the Mortgaged Premises.)
2. The location of all recorded easements and unrecorded easements ascertainable
by an inspection of the Mortgaged Premises, which benefit or burden the
Mortgaged Premises. (NOTE: All recorded easements are to be (1) identified by a
document recording number or other document reference or (2) identified as not
plottable with the reason stated.)
3. The location of all adjoining streets, roads, highways and alleys, with
names, rights-of-way widths, and distances from the Mortgaged Premises noted. If
none adjoin the Mortgaged Premises, then the location of the nearest public
street, road or highway and its distance from the Mortgaged Premises.
4. The location of public access to the Mortgaged Premises.
5. A directional indicator.
6. The street address, if known, of any existing improvements.
7. The dimensions of the Mortgaged Premises and the dimensions and location of
existing improvements as measured in all directions from property lines.
8. The perimeter dimensions of existing improvements.
9. Interior lot lines, if any.
10. All applicable governmental set-back lines.
11. The location of existing connections and on-site utility and service lines
for natural gas, electricity, water, and sanitary storm.
12. The area of the Mortgaged Premises.
13. State whether or not the property appears on any U.S. Department of H.U.D.
FLOOD INSURANCE BOUNDARY MAP and, if so, further state the map number, map date
and the property's flood zone as determined from the map.
14. Ingress and egress easements over the property, curb cuts, and driveways as
may be shown on site plan.
15. Identify mineral rights and if there is right to subsurface entry.
30
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
16. The following certificate of surveyor:
"The undersigned hereby certifies to NATIONSBANK, N.A., PLASMA-THERM,
INC., AND FIRST AMERICAN TITLE INSURANCE COMPANY that (a) this survey
is true and correct and was made on the ground under my supervision as
per the field notes shown hereon and correctly shows the boundary
lines, dimensions and area of the land indicated hereon and each
individual parcel thereof indicated hereon; (b) all monuments shown
hereon actually exist, and the location, size and type of such
monuments are correctly shown; (c) this survey correctly shows the
size, location and type of all buildings, structures, other
improvements and visible items on the subject Property; (d) this survey
correctly shows the location and dimensions of all alleys, streets,
roads, rights-of-way, easements, building setback lines and other
matters of record of which the undersigned has been advised affecting
the subject Property according to the legal description in such
easements and other matters (with instrument, book, and page number
indicated); (e) except as shown, there are not visible (1)
improvements, easements, rights-of-way, party walls, drainage ditches,
streams, uses, discrepancies or conflicts, (2) encroachments onto
adjoining premises, streets, or alleys by any of said buildings,
structures, or other improvements, (3) encroachments onto the subject
Property by buildings, structures, or other improvements on adjoining
premises, or (4) encroachments on any easement, building setback line
or other restricted area by any buildings, structures or other
improvements on the subject property, (f) the subject property abuts a
dedicated public street or road as shown hereon, and (g) meets the
minimum technical standards set forth by the Florida Board of Land
Surveyors pursuant to ss. 472.027, FLORIDA STATUTES and Chapter 61G17-6
Florida Administrative Code."
(SEAL) Dated this _____ day of ______________, 1998
(LICENSED SURVEYOR'S NAME)
--------------------------------------------
By: (ORIGINAL SIGNATURE)
--------------------------------------------
AS-BUILT SURVEY:
In addition to the requirements listed above, include these items:
1. Location of walkways.
2. Street address of each building.
3. Location and size of all paved parking areas with striping and
indicating number of parking spaces.
31
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
SURVEYOR'S REPORT AND CERTIFICATION
I hereby certify to NationsBank, N.A. and First American Title Insurance
Company, as of ____________________, 1998, that I am a duly registered land
surveyor of the State of Florida; that the attached plat of survey is made at
least in accordance with the minimum standards established by the State of
Florida for surveys and land surveyors; that I have made an accurate survey of
the premises situated at _____________________________________________ (See
Exhibit "A" attached hereto) known as Street Numbers ________________________
and shown on the attached plat of survey dated _______________________, under
Order No. ______________. In connection with such survey, I made a careful
inspection of said premises on __________________, 199___, and at the time of
inspection, I found to be in possession of said premises
_______________________________________ as ________________________. (Tenant or
Owner).
I made a specific examination with respect to (and the survey correctly shows
the location of) the following items and report the existence of evidence of the
following (if none, state "none"):
1. Rights of way, including those for roads, lanes, driveways or walks across
said premises serving other property:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Streams, ponds or lakes located, bordering on or running through said
premises:_______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Telephone, telegraph or electric power poles or wires overhanging or crossing
said premises and serving other property or properties:_________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
4. Underground installations such as sewers, water pipes, gas or oil pipe lines,
conduits, across said premises:_________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5. Drainage ditches or underground drain tile across said premises:_____________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. Joint driveways or walkways; party or curtain walls, beam rights, porches;
steps or roofs used in common or joint garages:_________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
32
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
7. Encroachments, or overhanging projections. (If a building or its xxxxx, fire
escapes, bay windows, doors, flue pipes, stoops, or areaways, or signs affixed
thereto, or its fences, walks, drives, gates or entrances encroach upon or
overhang adjoining properties, or similar adjoining properties, or similar
adjoining structures encroach upon or overhang the subject premises, specify all
of same, and if buildings are substantially on property lines, indicate if walls
are plumb and if foundations and footings are within required building setback
lines:__________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. Physical evidence of boundary lines on all sides. (Be specific as to
how boundary lines are evidenced, that is, by fences, plantings, etc.;
indicate whether same differ from deed lines and whether there is
evidence of disagreement as to boundaries):____________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
9. Any unusual elements of use or possession affecting said premises
(cemeteries, parks, etc.):______________________________________________________
________________________________________________________________________________
10. Evidence of contemplated, commenced, or newly completed construction (be
specific as to what has been done):_____________________________________________
________________________________________________________________________________
________________________________________________________________________________
I have examined the Flood Insurance Rate map for ______________ County,_________
_________________ Community Panel Number ________ Panel _________ of ___________
dated _______________ and hereby certify that this property (IS/IS NOT) located
in a Special Flood Hazard Area as determined by the Department of Housing and
Urban Development.
By: ___________________________
Signature of Surveyor
Registered Number:
(Official Seal)
33
PROMISSORY NOTE
$4,500,000.00 February 18, 0000
Xx. Xxxxxxxxxx, Xxxxxxx
1. PAYMENT SCHEDULE AND MATURITY DATE. FOR VALUE RECEIVED, the undersigned
(herein called "Maker," whether one or more) hereby promises to pay to the order
of NATIONSBANK, N.A., a national banking association ("Lender") without offset,
in immediately available funds in lawful money of the United States of America,
at Real Estate Loan Administration, 000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01), in
the City of Tampa, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx 00000, the principal sum of FOUR
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($4,500,000.00) (or the unpaid
balance of all principal advanced against this Note, if that amount is less)
together with interest on the unpaid principal balance of this Note from day to
day outstanding as hereinafter provided, as follows:
The entire principal balance of this Note then unpaid shall be due and
payable and shall be paid on April 18, 2000, the final maturity of this
Note (the "Maturity Date"). Accrued unpaid interest for the preceding
month shall be due and payable and shall be paid commencing on the last
day of March, 1999, and on the last day of each succeeding month
thereafter immediately following the month for which said interest has
accrued until the Maturity Date.
At Maker's option, the Maturity Date may be extended to April 18, 2005 (the
"Extension Maturity Date"), if on or before the Maturity Date the following
conditions have been satisfied:
a. Maker has delivered written notice of its intention to exercise
the extension option to extend the Maturity Date no less than 30 days prior to
the Maturity Date.
b. Maker has complied with all terms and conditions of the Loan
Agreement and Loan Documents (as defined below), including, without limitation,
that construction of the Improvements, and the installation of any required
items of tangible property, have been completed; and Maker has submitted an
acceptable title policy or current "update" endorsement thereto to Lender;
c. At the time Maker delivers its written notice of intention to
exercise the extension option and as of the Maturity Date, no Default then
exists, nor any condition or state of facts which after notice and/or lapse of
time would constitute a Default under this Note, the Loan Agreement, or the Loan
Documents (as defined below);
d. If required by Lender, Maker has executed an extension agreement
and such other documentation as Lender may require;
e. There has been no adverse change in the financial condition of
Maker or any guarantors of this Note or with respect to the Property which is
the collateral for this Note.
f. All applicable regulatory requirements, including appraisal
requirements as determined by Lender, shall have been satisfied with respect to
the extension of the Maturity Date.
The time period between the Maturity Date and the Extension Maturity Date is
referred to as the "Term Phase." During the Term Phase equal monthly payments of
principal and interest in an amount calculated based upon the applicable
interest rate as applied to the outstanding principal amount of this Note, and
amortized over a fifteen (15) year period shall be due and payable and shall be
paid commencing on the earlier of (i) the last day of the fourteenth (14th)
month following the date of this Note, or (ii) the last day of the first (1st)
month following the first (1st) day of the Term Phase, and shall continue on the
last day of each subsequent month thereafter until the Extension Maturity Date.
Whether or not the extension becomes effective, Maker shall pay all
out-of-pocket costs and expenses incurred by Lender in connection with
processing Maker's request to exercise its extension option, and all costs and
expenses incurred by Maker in connection with documenting the extension (both
pre- and post-closing), including but not limited to such costs and expenses as
are outlined and described in Section 4.7 of the Loan Agreement, and all such
costs and expenses shall be due and payable upon the Lender's demand.
2. SECURITY; LOAN DOCUMENTS. The security for this Note includes a
Mortgage, Assignment of Rents and Security Agreement which, as it may have been
or may hereafter be amended, restated, modified or supplemented from time to
time, is herein called the "Mortgage" dated February 18, 1999, from
PLASMA-THERM, INC., a Florida corporation to Lender, encumbering certain
property in Pinellas County, Florida described therein (the "Property"). This
Note, the Mortgage, the loan commitment letter from Lender to Maker dated April
16, 1998, as amended by letters dated September 10, 1998 and December 3, 1998,
the construction loan agreement between Maker and Lender of even date herewith
and the Credit Agreement between Lender and Maker dated April 18, 1997, as
amended by Amendment to Credit Agreement dated March 25, 1998, and a Second
Amendment to Credit Agreement executed simultaneously herewith (collectively,
the "Loan Agreement"), UCC Financing Statements of even date to be filed for
record in the public records of Pinellas County, Florida and in the Office of
the Secretary of State of the State of Florida (the "Financing Statements"),
Collateral Assignment of General Construction Contract, Subcontracts, Plans and
Specifications and Permits, Collateral Assignment of Professional Agreements and
Plans and Specifications and Permits and any other documents now or hereafter
securing, guaranteeing or executed in connection with the loan evidenced by this
Note, are, as the same have been or may be amended, restated, modified or
supplemented from time to time, herein sometimes called individually a "Loan
Document" and together the "Loan Documents." All of the terms, definitions,
conditions and covenants of the Loan Documents are expressly made a part of this
2
Note by reference in the same manner and with the same effect as if set forth
herein at length, and any holder of this Note is entitled to the benefit of and
remedies provided in the Loan Documents. Subject to the terms and conditions of
this Note and the Loan Documents, Lender shall advance funds to Maker pursuant
to the terms of the Loan Agreement.
3. INTEREST RATE. Subject to the further provisions of this Section 3, the
unpaid principal balance of this Note from day to day outstanding which is not
past due shall bear interest at a rate per annum equal to the lesser of (i) the
Maximum Rate (hereinafter defined) or (ii) the Stated Rate (hereinafter defined)
computed on the Annual Basis (hereinafter defined). The term "Stated Rate" as
used in this Note means the following:
A floating rate equal to 225 basis points above the "Variable Adjusted
LIBOR Rate", adjusted daily. Prior to commencement of the Term Phase,
Maker will be required to execute an Interest Rate Swap Protection
Agreement to hedge the risk of variable interest rate volatility or
fluctuations of interest rates, which Agreement shall be in form and
content acceptable to Lender. Interest shall be computed based upon the
actual number of days the Loan is outstanding and as if each year were
composed of 360 days.
For purposes of this Note, the "LIBOR Rate" for a particular day shall be
the interest rate as published in the final New York edition of THE WALL
STREET JOURNAL as the appropriate London InterBank Offered Rate (LIBOR)
for such particular day for a non-domestic certificate of deposit in an
amount approximately equal to the amount of the Note having a term of
thirty (30) days, or if THE WALL STREET JOURNAL is not published on any
such date, then as published therein for the immediately preceding
business day provided, however, that in the event that THE WALL STREET
JOURNAL is not published, or does not report the London InterBank Offered
Rate, for three consecutive business days, then the "LIBOR Rate" shall be
deemed to the interest rate which it would be necessary for Lender to pay
in connection with a sale by Lender, if possible, of a certificate of
deposit for a non-domestic deposit in an amount approximately equal to the
amount of the Note and having a term of thirty (30) days. The "Variable
Adjusted LIBOR Rate" for a particular day shall be equal to the quotient
of (1) the LIBOR Rate divided by (2) the difference of (a) one minus (b)
the maximum rate (expressed as a decimal) of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable from time to time to any member bank
of the Federal Reserve System, in respect to Eurocurrency liabilities as
specified in Regulation D (or any successor category of liabilities under
Regulation D). The computation of the Variable Adjusted LIBOR Rate shall
also include such adjustments as may be necessary in respect to
impositions on Lender for Federal Deposit Insurance Corporation insurance
and other insurance, fees, assessments and surcharges which occur because
of Lender's sale of a certificate of deposit which would establish the
LIBOR Rate or for insuring time deposits. The LIBOR Rate used in
determining the Variable Adjusted LIBOR Rate
3
for a particular day shall be the LIBOR Rate for such day if the interest
rate is published in THE WALL STREET JOURNAL as specified above, and
otherwise shall be the LIBOR Rate which is two "business days" prior to
the date of determination, or if such day is not a business day, then the
next preceding business day.
If a Variable Rate applies, then (i) the Stated Rate shall, unless otherwise
specified herein and subject to clause (ii) following, change with each change
in such Variable Rate as of the date of any such change, without notice, subject
always to the limitations set out in this Section 3; and (ii) if on any day the
Variable Rate shall exceed the maximum permitted by application of the Maximum
Rate in effect on that day, the Variable Rate shall be limited to, but shall
remain at and vary with, the maximum permitted by application of the Maximum
Rate on that day and on each day thereafter until the total amount of interest
accrued at the Variable Rate on the unpaid balance of this Note equals the total
amount of interest which would have accrued if there were no limitation by the
Maximum Rate, or until the earlier payment in full of this Note.
The interest rate charged hereunder is authorized by FLORIDA STATUTES ss. 687.12
(1997).
The "Annual Basis" referred to in this Note means computation of interest for
the actual number of days elapsed and as if each year were composed of 360 days.
However, use of the Annual Basis is subject always to limitation by the Maximum
Rate and in no event shall any such computation result in an amount of interest
in excess of the Maximum Amount (hereinafter defined). In any event, all
interest at the Maximum Rate shall be computed on the Annual Basis of 365 days
(366 in a leap year).
Any principal of, and to the extent permitted by applicable law, any interest on
this Note, and any other sum payable hereunder, which is not paid when due shall
bear interest, from the date due and payable until paid, payable on demand, at a
rate per annum (the "Default Rate") equal to the lesser of (i) three percent
(3%) above the Stated Rate or (ii) the Maximum Rate.
The term "Maximum Rate" as used in this Note means the maximum nonusurious rate
of interest per annum permitted by whichever of applicable United States federal
law or the law of the state indicated in Paragraph 10 hereof permits the higher
interest rate, including to the extent permitted by applicable law, any
amendments thereof hereafter or any new law hereafter coming into effect to the
extent a higher Maximum Rate is permitted thereby. The Maximum Rate shall be
applied by taking into account all amounts characterized by applicable law as
interest on the debt evidenced by this Note, so that the aggregate of all
interest does not exceed the maximum nonusurious amount permitted by applicable
law (the "Maximum Amount").
4. LATE CHARGES. Should Maker fail to pay the installments of interest or
principal (if applicable) on any due date provided herein, the Maker further
promises to pay a late payment charge equal to four percent (4%) of the amount
of the unpaid installment as liquidated compensation to Lender for the extra
expense to Lender to process and administer the late payment, Maker agreeing,
4
by execution hereof, that any other measure of compensation for a late payment
is speculative and impossible to compute. This provision for late charges shall
not be deemed to extend the time for payment or be a "grace period" or "cure
period" that gives Maker a right to cure a Default. Imposition of late charges
is not contingent upon the giving of any notice or lapse of any cure period
provided for in the Mortgage or other Loan Documents and shall not be deemed a
waiver of any right or remedy of Lender including without limitation,
acceleration of this Note.
5. PREPAYMENT. The Maker may prepay the principal balance of this Note, in
full at any time or in part from time to time, without payment of any prepayment
fee, provided that (i) Lender shall have actually received from Maker at least
five (5) business days' prior written notice of Maker's intent to prepay, of the
amount of principal which will be prepaid (the "Prepaid Principal") and of the
date on which the prepayment will be made; (ii) each prepayment shall be in the
amount of $1,000.00 or a larger integral multiple of $1,000.00 (unless the
prepayment retires the outstanding balance of this Note in full); and (iii) each
prepayment shall be in the amount of 100% of the Prepaid Principal, plus any due
and unpaid interest thereon to the date of prepayment, plus any other sums which
have become due to Lender under the Loan Documents on or before the date of
prepayment but have not been paid.
If this Note is prepaid in full, any commitment of Lender for further advances
shall automatically terminate. Any partial prepayment shall be applied in
accordance with Paragraph 6 below and shall not postpone the due date of any
subsequent installments or the Maturity Date, or change the amount of such
installments due, unless Lender shall otherwise agree in writing, and further
except that any prepayments which represent partial release fees in accordance
with the terms of the Loan Agreement, shall be credited to the then next due
principal paydown required in this Note.
6. CERTAIN PROVISIONS REGARDING PAYMENTS. All payments made as scheduled
on this Note shall be applied, to the extent thereof, to any due and unpaid
interest, unpaid principal, and any other sums due and unpaid to Lender under
the Loan Documents, in such manner and order as Lender may elect in its
discretion. All prepayments on this Note shall be applied, to the extent
thereof, first, to any due and unpaid interest on the amount prepaid, next to
the remaining principal installments, and last to any other sums due and unpaid
to Lender under the Loan Documents. Except to the extent that specific
provisions are set forth in this Note or another Loan Document with respect to
application of payments, all payments received by the holder hereof shall be
applied, to the extent thereof, to the indebtedness secured by the Mortgage in
such manner and order as Lender may elect in its discretion, any instructions
from Maker or anyone else to the contrary notwithstanding. Remittances in
payment of any part of the indebtedness other than in the required amount in
immediately available U.S. funds shall not, regardless of any receipt or credit
issued therefor, constitute payment until the required amount is actually
received by the holder hereof in immediately available U.S. funds and shall be
made and accepted subject to the condition that any check or draft may be
handled for collection in accordance with the practice of the collecting bank or
banks. Acceptance by the holder hereof of any payment in an amount less than the
amount then due on any indebtedness shall be deemed an acceptance on account
only and shall not in any way excuse the existence of a Default (hereinafter
defined).
5
7. DEFAULT/ACCELERATION. It shall be a default ("Default") under this Note
and each of the other Loan Documents if (a) any principal, interest or other
amount of money due under this Note is not paid in full when due, regardless of
how such amount may have become due; or (c) there shall occur any default or
Event of Default under the Mortgage or any other Loan Document. Upon the
occurrence of a Default, the holder hereof shall have the right to declare the
unpaid principal balance and accrued but unpaid interest on this Note at once
due and payable (and upon such acceleration, the same shall be at once due and
payable without presentation, demand, protest or notice of any kind, which are
all hereby waived by Maker, and this Note shall thereafter bear interest at the
Default Rate), to foreclose any liens and security interests securing payment
hereof and to exercise any of its other rights, powers and remedies under this
Note, under any other Loan Document, or at law or in equity.
All of the rights, remedies, powers and privileges (together, "Rights") of the
holder hereof provided for in this Note and in any other Loan Document are
cumulative of each other and of any and all other Rights at law or in equity.
The resort to any Right shall not prevent the concurrent or subsequent
employment of any other appropriate Right. No single or partial exercise of any
Right shall exhaust it, or preclude any other or further exercise thereof, and
every Right may be exercised at any time and from time to time. No failure by
the holder hereof to exercise, nor delay in exercising any Right, including but
not limited to the right to accelerate the maturity of this Note, shall be
construed as a waiver of any Default or as a waiver of the Right. Without
limiting the generality of the foregoing provisions, the acceptance by the
holder hereof from time to time of any payment under this Note which is past due
or which is less than the payment in full of all amounts due and payable at the
time of such payment, shall not (i) constitute a waiver of or impair or
extinguish the right of the holder hereof to accelerate the maturity of this
Note or to exercise any other Right at the time or at any subsequent time, or
nullify any prior exercise of any such Right, or (ii) constitute a waiver of the
requirement of punctual payment and performance or a novation in any respect.
If any holder of this Note retains an attorney in connection with any Default or
at the Maturity Date or to collect, enforce or defend this Note or any other
Loan Document in any lawsuit, at trial, or in any appellate, probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any holder in
connection with this Note or any other Loan Document and does not prevail, then
Maker agrees to pay to each such holder, in addition to principal, interest and
any other sums owing to Lender under the Loan Documents, all reasonable costs
and expenses incurred by such holder in trying to collect this Note or in any
such suit or proceeding, including without limitation reasonable attorneys'
fees, paralegals' fees and costs.
8 CONTROLLING AGREEMENT. All parties to the Loan Documents intend to
comply with applicable usury law. All existing and future agreements regarding
the debt evidenced by this Note are hereby limited and controlled by the
provisions of this Section. In no event (including but not limited to
prepayment, default, demand for payment, or acceleration of maturity) shall the
interest taken, reserved, contracted for, charged or received under this Note or
under any of the other Loan Documents or otherwise, exceed the maximum
nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from
any possible construction of any document, interest would otherwise
6
be payable in excess of the Maximum Amount, then IPSO FACTO, such document shall
be reformed and the interest payable reduced to the Maximum Amount, without
necessity of execution of any amendment or new document. If the holder hereof
ever receives interest in an amount which apart from this provision would exceed
the Maximum Amount, the excess shall, without penalty, be refunded to the payor,
or at the option of such payor, be applied to the unpaid principal of this Note
in inverse order of maturity of installments and not to the payment of interest.
The holder hereof does not intend to charge or receive unearned interest on
acceleration. All interest paid or agreed to be paid to the holder hereof shall
be spread throughout the full term (including any renewal or extension) of the
debt so that the amount of interest does not exceed the Maximum Amount.
9. 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 Note 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), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes of Judicial Arbitration and Mediation Services, Inc.
(J.A.M.S.), and 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 Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this Note applies in any court
having jurisdiction over such action.
(a) SPECIAL RULES. The arbitration shall be conducted in Pinellas
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 Note shall be deemed to
(i) limit the applicability of any otherwise applicable statutes of limitation
or repose and any waivers contained in this Note; or (ii) be a waiver by the
Lender of the protection afforded to it by 12 U.S.C. ss. 91 or any substantially
equivalent state law; or (iii) limit the right of the bank 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 Lender 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 Note. At Lender's option, foreclosure under
a deed of trust or mortgage may be accomplished by any of the following: the
exercise of a power of sale under the deed of trust or mortgage, or by judicial
sale under the deed of trust or 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.
7
10. GENERAL PROVISIONS. Time is of the essence hereunder. If more than one
person or entity executes this Note as Maker, all of said parties shall be
jointly and severally liable for payment of the indebtedness evidenced hereby.
Maker and all sureties, endorsers, guarantors and any other party now or
hereafter liable for the payment of this Note in whole or in part, hereby
severally (i) waive demand, presentment for payment, notice of dishonor and of
nonpayment, protest, notice of protest, notice of intent to accelerate, notice
of acceleration and all other notices (except any notices which are specifically
required by this Note or any other Loan Document), filing of suit and diligence
in collecting this Note or enforcing any of the security herefor; (ii) agree to
any substitution, subordination, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon; (iii) agree that
the holder hereof shall not be required first to institute suit or exhaust its
remedies hereon against Maker or others liable or to become liable hereon or to
perfect or enforce its rights against them or any security herefor; (iv) consent
to any extensions or postponements of time of payment of this Note for any
period or periods of time and to any partial payments, before or after maturity,
and to any other indulgences with respect hereto, without notice thereof or
further consent of Maker or any guarantors to any of them; and (v) submit (and
waive all rights to object) to non-exclusive personal jurisdiction in the State
of Florida, and venue in the county in which payment is to be made as specified
in Section 1 of this Note or in Pinellas County, Florida, for the enforcement of
any and all obligations under this Note and the Loan Documents.
A determination that any provision of this Note is unenforceable or invalid
shall not affect the enforceability or validity of any other provision and the
determination that the application of any provision of this Note to any person
or circumstance is illegal or unenforceable shall not affect the enforceability
or validity of such provision as it may apply to other persons or circumstances.
The remaining provisions of this Note shall remain operative and in full force
and effect and shall in no way be affected prejudiced, or disturbed thereby.
This Note may not be amended except in a writing specifically intended for the
purpose and executed by the party against whom enforcement of the amendment is
sought. In the event any provisions of this Note are inconsistent with the
provisions of the Loan Documents, or any other agreements or documents executed
in connection with this Note, this Note shall control. The holder of this Note
may, from time to time, sell or offer to sell the loan evidenced by this Note,
or interests therein, to one or more assignees or participants and is hereby
authorized to disseminate any information it has pertaining to the loan
evidenced by this Note, including, without limitation, any security for this
Note and credit information on Maker, any of its principals and any guarantor of
this Note, to any such assignee or participant or prospective assignee or
prospective participant, and to the extent, if any, specified in any such
assignment or participation, such assignee(s) or participant(s) shall have the
rights and benefits with respect to this Note and the other Loan Documents as
such person(s) would have if such person(s) were Lender hereunder. Maker
warrants and represents to Lender and all other holders of this Note that the
loan evidenced by this Note is and will be for business or commercial purposes
and not primarily for personal, family, or household use. The terms, provisions,
covenants and conditions hereof shall be binding upon Maker and the heirs,
devisees, representatives, successors and assigns of Maker. Captions and
headings in this Note are for convenience only and shall be disregarded in
construing it. The pronouns used in this instrument shall be construed as
masculine, feminine or neuter as the occasion may require. Use of the singular
includes the plural, and vice versa. Any reference herein to a day
8
or business day shall be deemed to refer to a banking day which shall be a day
on which Lender is 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. Notwithstanding such timely performance,
interest shall continue to accrue hereunder until such payment or performance
has been made.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE
GOVERNED BY FLORIDA LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES)
AND APPLICABLE UNITED STATES FEDERAL LAW.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the date first
above written.
MAKER:
PLASMA-THERM, INC., a Florida corporation
By: /s/ XXXXX X. XXXXXX
---------------------------------
Xxxxx X. Xxxxxx, Vice President
and Chief Financial Officer
(CORPORATE SEAL)
9
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (the
"Mortgage"), made as of the 18th day of February, 1999, between PLASMA-THERM,
INC., a Florida corporation (the "Mortgagor"), as mortgagor and debtor, whose
principal place of business is 10050 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx
00000, and NATIONSBANK, N.A., a national banking association (the "Mortgagee"),
as mortgagee and secured party, whose address is 400 North Ashley Drive
(FL1-010-07-01), Xxxxx, Xxxxxxx 00000.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 DEFINITIONS. As used in this 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
Mortgagor dated April 16, 1998, as amended by letters dated September 10, 1998
and December 3, 1998.
(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 Mortgagor or against or with
respect to the Mortgaged Property or any condition, use or activity on the
Mortgaged Property (including any such action against Mortgagee), and any claim
at any time threatened or made by any person against Mortgagor or against or
with respect to the Mortgaged Property or any condition, use or activity on the
Mortgaged Property (including any such claim against Mortgagee), 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. ss. 6901 ET SEQ.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 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. ss. 1801 ET SEQ.; the
Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 ET SEQ.; the Clean Air
Act, 42 U.S.C. ss. 7401 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 ET SEQ.; the Safe Drinking Water Act, 42 U.S.C. ss. 300f ET SEQ.; the
Florida Resource Recovery and Management Act, the 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 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.
(f) EVENTS OF DEFAULT: Those events described in Article VII
hereof.
This instrument prepared by and returned to:
XXXX XX XXXXXX
Powell, Carney, Xxxxx & Xxxxxxxxxxx, P.A.
Xxxx xxxxxx Xxx 0000
Xx. Xxxxxxxxxx, XX 00000-0000
(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
Mortgagor made within twenty (20) years from the date hereof. The total amount
of such loan or loans may decrease or increase from time to time, but the total
unpaid aggregate balance secured by this Mortgage at any one time shall not
exceed $9,000,000.00, plus interest thereon, and any disbursements made for the
payment of the Impositions (whether taxes, levies or otherwise), insurance, or
other liens on the Mortgaged Property, with interest on such disbursements. The
Mortgagee has no obligation, whatsoever, to make a Future Advance.
(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.
(k) 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.
(l) 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
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 any of its properties and (iii)
taxes levied or assessed upon this Mortgage, the Note, and the other
Obligations, or any of them.
(m) 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.
(n) JUNIOR MORTGAGE: 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 Mortgage, which term shall
collectively refer to all such mortgages and the note or notes secured thereby.
(o) 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 rights, streets, ways, alleys, and
strips and gores of land now or hereafter in any way belonging, adjoining,
crossing or pertaining to the Land.
(p) 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.
(q) LOAN: $4,500,000.00 as evidenced by the Note.
(r) LOAN AGREEMENT: The construction loan agreement of even date
herewith between Mortgagor and Mortgagee and that certain Credit Agreement
between Mortgagee and Mortgagor dated April 18, 1997, as amended on March 25,
1998, and on even date herewith.
(s) LOAN DOCUMENTS: Those items required by the Commitment and
any other document or instrument executed, submitted, or to be submitted by
Mortgagor or others in connection with the Loan, including but not limited to
the: i) Note, ii) Mortgage, iii) Loan Agreement, iv) financing statements, v)
Environmental
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Indemnity Agreement, vi) any Interest Rate Swap Protection Agreement, and vii)
any other document or instrument executed by Mortgagor in connection with the
Loan.
(t) 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;
(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 pursuant to this 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, 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.
(u) MORTGAGEE: NationsBank, N.A., a national banking
association, its successors and assigns.
(v) MORTGAGOR: Plasma-Therm, Inc., a Florida corporation.
(w) NOTE: The promissory note dated of even date herewith from
Mortgagor to Mortgagee, in the amount of $4,500,000.00, by this reference made a
part hereof to the same extent as though set out in full 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. As used
herein the term "Note" shall refer to all of said notes collectively, as well as
to each of said notes individually, as the context may require.
(x) 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, of Mortgagor to Mortgagee, evidenced by,
secured by, under and as set forth in the Note, this Mortgage, the Guaranty or
the other Loan Documents;
(ii) Any and all other indebtedness, liabilities and
obligations of every nature whatsoever (whether or not otherwise secured or to
be secured) of Mortgagor (whether as maker, endorser, surety, guarantor or
otherwise) to Mortgagee or any of Mortgagee's affiliates, whether now existing
or hereafter created or arising or now owned or howsoever hereafter acquired by
Mortgagee or any of the Mortgagee's affiliates, whether such indebtedness,
liabilities and obligations are or will be joint or several, direct or indirect,
absolute or contingent, liquidated or unliquidated, matured or unmatured,
including, but not limited to, any letter of credit issued by Mortgagee for the
account of Mortgagor; 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; and
(iii) Any and all Future Advances.
(iv) Any and all of the indebtedness, liabilities,
covenants, promises, agreements, terms, conditions and other obligations of any
nature whatsoever, whether joint or general, direct or indirect, absolute or
contingent, liquidated or unliquidated, of Mortgagor, Guarantor, or any of them,
to Mortgagee under any Interest Rate Protection Agreements, including, but not
limited to, any and all unpaid accrued payments due Mortgagee, under any
Interest Rate Protection Agreement, the present value of future benefits lost by
Mortgagee's nonreceipt of future payments in excess of corresponding future
liabilities under any Interest Rate Swap Protection Agreements, and the costs of
collection of all such amounts.
(y) PARTNERSHIP: Any general or limited partnership, joint
venture, or other form of partnership, howsoever designated.
(z) PERMITTED TITLE EXCEPTIONS: Those matters, if any, described
in Schedule B to the title insurance policy insuring Mortgagee's interest in
this Mortgage.
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(aa) 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.
(bb) PERSONAL PROPERTY: All of the following property of
Mortgagor whether now owned or existing, or hereafter acquired or arising,
whether 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) all machinery, equipment, furniture, furnishings,
building supplies and materials, appliances, business machines, tools, and all
warranties and guaranties for any of the foregoing, but specifically excluding
all goods (including, without limitation, equipment and machinery) held for sale
or lease or to be furnished under contracts of service, or raw materials,
work-in-process or materials used or consumed in a business;
(iv) all general intangibles and documents relating to the
construction, maintenance or operation of the Improvements (but not related to
the Mortgagor's business conducted in the Improvements), including without
limitation, corporate or other business records and books, computer records
whether on tape, disc or otherwise stored, blueprints, surveys, architectural or
engineering drawings, plans and specifications, licenses, governmental
approvals, franchises, permits, payment and performance bonds, tax refund
claims, and agreements with utility companies, together with any deposits,
prepaid fees and charges paid thereon;
(v) all Leases and Rents (to the extent same are not deemed
to be real property);
(vi) 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;
(vii) all insurance policies required by this Mortgage, the
unearned premiums therefor and all loss proceeds thereof;
(viii) all construction contracts, architectural contracts,
service contracts, engineering contracts, contracts for purchase and sale of any
of the Mortgaged Property, equipment leases, monies in escrow accounts,
reservation agreements, prepaid expenses, deposits and down payments 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 (including any rights of first refusal to purchase lands
adjacent to the Mortgaged Property), end-loan commitments, abstracts of title,
all brochures, advertising materials, condominium documents and prospectuses;
and
(ix) all proceeds, products, replacements, additions,
betterments, extensions, improvements, substitutions, renewals and accessions of
any and all of the foregoing.
Provided, however, that trade secrets and other proprietary information owned by
Mortgagor, such as trademarks, copyrights and patents shall not be included
within the definition of Personal Property, and shall not be encumbered by the
lien of this Mortgage.
(cc) RENTS: All rents, revenues, rental income and profits from
leases, franchises, concessions or licenses of or on any part of the Mortgaged
Property.
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 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 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 Mortgage or of any financing
statement shall be sufficient as a financing statement. The debtor's principal
place of business and the secured party's address is set forth in the
introduction to this Mortgage.
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ARTICLE II
GRANT
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
these presents give, transfer, grant, bargain, sell, alien, remise, release,
assign, 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. Subject to the provisions of this Mortgage,
the condition of these presents is such that if Mortgagor 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
Mortgage and the estates, interests, rights and assignments granted hereby shall
be null and void, but otherwise shall remain in full force and effect.
2.3 SUBROGATION. 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 Mortgage
notwithstanding that such claims or liens may have been canceled and satisfied
of record.
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 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; however such permission shall be reinstated upon a cure of the Event
of Default with 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.
3.4 LEASES IN GOOD STANDING. All Leases are in full force and
effect, and there are no defaults thereunder or any defenses or offsets thereto
on the part of any tenant.
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3.5 PROVISIONS OF LEASES AND APPROVAL OF TENANTS. All Leases shall
be inferior and subordinate to the lien of this 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 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.
3.8 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.
3.9 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.
3.10 ATTORNEY-IN-FACT. To further effectuate Mortgagee's rights
under this Article III, 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 (i) collect and receive the Rents and to issue receipts therefor, (ii) to
make, enter into, extend, modify, amend, terminate, consent to the cancellation
or surrender of any Lease, or permit any tenant to assign or sublet its rights
thereunder, (iii) to execute, acknowledge and deliver any and all instruments
and documents that Mortgagee may deem necessary or proper to implement its
rights as provided in this Article III, and (iv) to perform and discharge any
and all obligations and undertakings of Mortgagor under any Lease.
3.11 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.
Any transaction prohibited under this Section shall be null and void.
3.12 SECTION 697.07 OF THE FLORIDA STATUTES. The assignments of
Leases and Rents contained in this Mortgage are intended to provide Mortgagee
with all the rights and remedies of mortgagees pursuant to ss. 697.07 of thE
FLORIDA STATUTES (hereinafter "ss. 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 Article VIII, Section 8.1(e)
herein, nor shall any provision in this Section 3.12 diminish, alter, impair or
affect any rights or powers of the receiver in law or equity or as set forth in
Article VIII, 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 ss. 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 ss. 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.
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 (i) if a corporation, (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, and all of its issued and outstanding stock is
fully paid and nonassessable, (C) is qualified to do business in the State of
Florida, (D) is in compliance with all Governmental Requirements, 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.
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(b) VALIDITY OF LOAN DOCUMENTS. (i) The execution, delivery and
performance by Mortgagor of the Loan Documents, and the borrowing evidenced by
the Note, (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 or the
partnership agreement 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) the
Loan Documents, constitute the legal, valid and binding obligations of Mortgagor
and other obligors named therein, if any, in accordance with their respective
terms.
(c) FINANCIAL STATEMENTS. All balance sheets, statements of
profit and loss, and other financial data that have been given to Mortgagee with
respect to the Mortgagor and the Guarantor, (i) are complete and correct in all
material respects, (ii) accurately present the financial condition of said
parties as of the dates, and the results of its or their operations, for the
periods for which the same have been furnished, and (iii) have been prepared in
accordance with generally accepted accounting principles consistently followed
throughout the periods covered thereby; all balance sheets disclose all known
liabilities, direct and contingent, as of their respective dates; and there has
been no change in the condition of the Mortgagor or the Guarantor, financial or
otherwise, since the date of the most recent financial statements given to
Mortgagee with respect to said parties, other than changes in the ordinary
course of business, none of which changes has been materially adverse.
(d) OTHER AGREEMENTS. Mortgagor is not a party to any agreement
or instrument materially and adversely affecting it or its present or proposed
businesses, properties or assets, operation or condition, financial or
otherwise, and Mortgagor is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions set
forth in any agreement or instrument to which it is a party.
(e) OTHER INFORMATION. All other information, including reports,
financial statements, certificates, papers, data and otherwise, given and to be
given to Mortgagee with respect (i) to Mortgagor or any Guarantor, (ii) to the
Loan and (iii) to others obligated under the terms of the Loan Documents, are
true, accurate and correct in all material respects and complete.
(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 the Permitted Title Exceptions. 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. 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 Mortgage against the claims of all persons and parties whomsoever.
(g) NO VIOLATIONS. No Governmental Requirement (including, but
not limited to, 21 U.S.C. xx.xx. 811 and 881, and 18 U.S.C. ss.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 filed all federal, state, county and
municipal income tax returns required to have been filed by it, and has paid all
taxes that have become due pursuant to such returns, pursuant to any assessments
received by it or pursuant to law, and Mortgagor does not know of any basis for
additional assessment with respect to such taxes or additional taxes. The Land
is (or will be prior to the issuance of the first tax xxxx coming due after the
date of this Mortgage) 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 Mortgagor or 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 material adverse change in the business or financial condition of
the Mortgagor or Mortgagor's operation and ownership of the Mortgaged Property,
nor is there any basis for such action, suit, proceeding or investigation.
(j) UTILITIES. There is available to the Land and Improvements
through public or private easements or rights-of-way abutting or crossing the
Land (which would inure to the benefit of Mortgagee in case of enforcement of
this Mortgage) a water supply and a sanitary sewer service approved by all
health and other
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authorities having jurisdiction, and electric, gas (if applicable) and telephone
service, all of sufficient capacity to serve the needs of the Land and
Improvements according to their intended purpose.
(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 Mortgage, are free of any defects in material, structure and
construction and do not violate any Governmental Requirements. 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.
(l) ZONING. The Land is zoned so as to permit the Land and
Improvements to be used for their intended purpose.
(m) NO DEFAULT. No default or Event of Default exists under any
of the Loan Documents; and no event has occurred and is continuing which, with
notice or the lapse of time, or both, would constitute a default under any
provision thereof.
(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, if any, existing as of
the date hereof requires the consent of any of the holders thereof to the Loan,
the execution and delivery of the Loan Documents, or to any transaction
contemplated under the Loan Documents. All Junior Mortgages existing as of the
date hereof, if any, are 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. Mortgagor
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 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. 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 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. 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.
(q) FACILITIES FOR HANDICAPPED: The Improvements comply with all
legal requirements regarding access and facilities for handicapped or disabled
persons, including, without limitation, and to the extent applicable, Part V of
the Florida Building Construction Standards Act entitled "Accessibility by
Handicapped Persons", Chapter 553, FLORIDA STATUTES; the Federal Architectural
Barriers Act of 1988 (42 U.S.C. ss.4151, ET SEQ.), The Fair Housing Amendment
Act of 1988 (42 U.S.C. ss.3601, ET SEQ.), The Americans With Disabilities Act of
1990 (42 U.S.C. ss.12101 ET SEQ.), and The Rehabilitation Act of 1973 (29 U.S.C.
ss.794).
(r) REPRESENTATIONS AND WARRANTIES IN OTHER LOAN Documents. All
of the representations and warranties contained in the other Loan Documents are
true and correct.
Notwithstanding anything contained herein to the contrary, as to the
representations and warranties contained in subsections (f) through and
including (q), all of such representations and warranties are made only to the
best knowledge of the Mortgagor. For purposes of this Mortgage, the phrase "the
best knowledge of Mortgagor" shall be deemed to mean the actual knowledge or
present recollection of the following current officers of Mortgagor: Xxxxxx X.
XxXxxxxxx, Xxxxxx X. XxXxxxxxx, Xxxxx X. Xxxxxx, W. Xxxxxxxx Xxxxx, Xxxxxx X.
Xxxxxxxx and Xxx Xxxxxxxxx.
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, agent, employee or shareholder of
Mortgagee.
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ARTICLE V
AFFIRMATIVE COVENANTS
5.1 PAYMENT AND PERFORMANCE. Mortgagor 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 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 Note and the
Obligations, 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 taxes
levied or assessed upon this Mortgage, the Note, or the Obligations 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, the
Mortgagor shall pay, upon demand, the entire unpaid Obligations notwithstanding
anything in the Note, this Mortgage, or the other Loan Documents to the
contrary.
(b) 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 31 of each year. 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 Mortgagor, Mortgagor shall cause to be maintained, at Mortgagor'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. Mortgagor shall keep the Improvements and
all Personal Property which now or hereafter may constitute part of the
Mortgaged Property insured at all times against loss or damage by fire and other
hazards included within the term "all risk" or "extended coverage" and against
such other hazards as Mortgagee may require in the full insurable value thereof
(or such lesser amount as Mortgagee may authorize in writing), with an insurer
satisfactory to Mortgagee. Such policy shall include a Replacement Cost and
Agreed Amount/Stipulated Value Endorsement and a Sinkhole Endorsement, if deemed
necessary by Mortgagee.
(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 ($1,000,000.00) per
occurrence and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00 or CSL of Ten
Million Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00 or
greater.
(c) FLOOD INSURANCE. If at any time the Land or any portion
thereof is located in a "Flood Hazard Area" pursuant to the Flood Disaster
Protection Act of 1973 or any successor or supplemental act thereto, flood
insurance in the maximum amount available or such other amount as Mortgagee may
reasonably request.
(d) BUILDER'S RISK INSURANCE. An "All risk", non-reporting,
completed value builder's risk insurance policy, which policy shall include
Agreed Amount, Replacement Cost, Permit to Occupy and Vandalism/Malicious
Mischief Endorsements.
(e) 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)
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days' prior written notice to Mortgagee, and (iv) be evidenced by evidence
certificates or other certificates deemed acceptable to Mortgagee, to be held by
Mortgagee until the Obligations 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:
000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01)
Xxxxx, Xxxxxxx 00000
Attn: Loan Administration Section,
Real Estate Banking Group
5.6 RESTORATION FOLLOWING CASUALTY.
(a) If all or any part of the Mortgaged Property shall be
damaged or destroyed by a casualty, Mortgagor shall immediately give written
notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is
authorized and empowered (but not obligated or required) to make proof of loss
and to settle, adjust or compromise any claims for loss, damage or destruction
under any policies of insurance required under this Mortgage. All proceeds of
insurance, as provided in Section 5.5, shall be paid 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
obtaining such proceeds, and second, at the option of Mortgagee, either to the
payment of the Obligations whether or not due, in such order as Mortgagee may
elect, or to the restoration, repair, or replacement of the Mortgaged Property.
If Mortgagee elects to apply the insurance proceeds to the restoration, repair
or replacement of the Mortgaged Property, such proceeds shall be disbursed to
Mortgagor as work progresses pursuant to a construction and disbursing agreement
in form and content satisfactory to Mortgagee in its sole discretion, and
Mortgagor shall promptly and diligently, regardless of whether there shall be
sufficient insurance proceeds therefor, restore, repair and rebuild the
Mortgaged Property to the equivalent of its condition immediately prior to the
casualty. During the period of restoration and repair, Mortgagor shall continue
to duly and promptly pay, perform, observe and comply with all of the
Obligations. The election by Mortgagee to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property shall not affect
the lien of this Mortgage or affect or reduce the Obligations.
(b) If all or any of the Mortgaged Property shall be damaged or
destroyed by a casualty not covered by insurance under Section 5.5, or, if so
covered, the insurer fails or refuses to pay the claim within thirty (30) days
following the filing thereof, Mortgagor shall immediately give written notice
thereof to Mortgagee, and Mortgagor shall promptly and diligently, at
Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior to the casualty.
During the period of restoration and repair, Mortgagor shall continue to duly
and promptly pay, perform, observe and comply with all of the Obligations.
(c) If any work required to be performed under Subsections (a)
or (b) above, or both, shall involve an estimated expenditure of more than
$25,000.00, no such work shall be undertaken until plans and specifications
therefor, prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
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.
(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. The Mortgagee shall be
entitled to all compensation, awards and other payments resulting from such
condemnation and 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. All such compensation, awards, damages, claims, rights of action and
proceeds and the right thereto 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 5.7,
and second, at the option of Mortgagee, either to the payment of the Obligations
whether or not due, in such order as Mortgagee may elect, or to the restoration,
repair or alteration of the Mortgaged Property. If Mortgagee elects to apply the
condemnation awards to the restoration, repair or alteration of the Mortgaged
Property, such awards shall be
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disbursed to Mortgagor as work progresses pursuant to a construction and
disbursing agreement in form and content satisfactory to Mortgagee in its sole
discretion, and Mortgagor shall promptly and diligently, regardless of whether
there shall be sufficient condemnation awards therefor, restore, repair and
alter the Mortgaged Property in a manner satisfactory to Mortgagee. During the
period of restoration, repair and alteration, the Mortgagor shall continue to
duly and promptly pay, perform, observe and comply with all of the Obligations.
The election by Mortgagee to apply the condemnation awards to the restoration,
repair or alteration of the Mortgaged Property shall not affect the lien of this
Mortgage or affect or reduce the Obligations. If any restoration, repair or
alteration of the Mortgaged Property shall involve an estimated expenditure of
more than $25,000.00, same shall not be commenced until plans and specifications
therefor, prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
5.8 MORTGAGOR'S RIGHT TO REBUILD THE MORTGAGED PROPERTY.
(a) Notwithstanding the provisions of Sections 5.6 and 5.7
hereof to the contrary, in the event that any portion or portions of the
Mortgaged Property are damaged or destroyed by fire or by any other casualty, or
are the subject of a "de minimis" (for purposes of this Section 5.8, the term
"de minimis" shall mean an amount, as determined by Mortgagee in its sole
discretion, which does not adversely affect the actual use of the Improvements)
condemnation, and such damage, destruction, or condemnation results in the need
for repair, rebuilding, or restoration work to be performed on the Mortgaged
Property (such repair, rebuilding, or restoration is referred to herein as the
"Work"), Mortgagee shall allow Mortgagor to use the amount by which the proceeds
of all insurance policies, judgments, settlements, or awards collected with
respect to such damage, destruction, or condemnation (except such amounts as are
attributable to a loss of rents) exceed the cost, if any, to Mortgagee for the
recovery of such proceeds (said net amount is defined herein as the
"Reconstruction Funds"), to perform the Work, so long as the following
conditions have been met:
(i) No Event of Default exists hereunder, under the Note, or
under any other of the Loan Documents;
(ii) Mortgagor shall have delivered evidence satisfactory to
Mortgagee that the Improvements may be reconstructed in accordance with all
applicable zoning and building codes, and all rules, regulations, and ordinances
of Governmental Authorities and that, upon completion of the Work, the condition
of the Improvements will be at least equal in value and general utility to that
which existed immediately prior to such casualty or condemnation;
(iii) Mortgagor shall have delivered evidence satisfactory
to Mortgagee that sufficient funds, including the Reconstruction Funds, are
available to perform the Work and that the Work is capable of completion prior
to the then effective maturity date of the Note; and
(iv) Mortgagee shall be satisfied, in its sole discretion,
that the work can be completed and the Improvements can be ready for occupancy
at least three (3) months prior to the maturity of the Loan;
(v) All parties having existing or expected possessory
interest in the Property agree in a manner satisfactory to Mortgagee that they
will continue or extend their intent and arrangements for the contract terms
then in effect following the work;
(vi) All parties having operating, management, or franchise
interest in, and arrangement concerning the Property agree that they will
continue their interest and arrangements for the contract terms then in effect
following the work; and
(vii) Mortgagee shall be satisfied that it will not incur
any liability to any other person as a result of such use or release of
insurance proceeds.
(b) In the event that the conditions set forth in Section 5.8(a)
above are satisfied, Mortgagee shall make the Reconstruction Funds available to
Mortgagor for the Work only under the following procedures, terms, and
conditions:
(i) Mortgagor shall execute and deliver to Mortgagee a copy
of a contract with a licensed contractor acceptable to Mortgagee setting forth a
fixed price for the Work and a completion date acceptable to Mortgagee;
(ii) Mortgagor shall demonstrate to Mortgagee that the
Reconstruction Funds are at least equal to the fixed price of the Work as set
forth in said contract or shall deposit with Mortgagee funds in the amount by
which such fixed price exceeds the Reconstruction Funds;
(iii) The Work shall be supervised by an architect or
engineer and performed in accordance with plans and specifications prepared by
such architect or engineer and approved by Mortgagee;
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(iv) The Reconstruction Funds, plus any additional funds
deposited by Mortgagor, shall be received and held by Mortgagee and disbursed in
accordance with the terms and conditions used by Mortgagee in connection with
the a loan disbursing agreement to be prepared by Mortgagee and Mortgagor's
expense, and Mortgagor shall reimburse Mortgagee for costs and expenses incurred
in connection with such disbursements;
(v) Upon completion of and final payment for the Work, any
remaining Reconstruction Funds shall, at the option of Mortgagee, be applied to
the Obligations in such order as Mortgagee shall elect or paid over to
Mortgagor; provided, however, that in either event, any remaining additional
funds deposited by Mortgagor for excess costs shall be refunded to Mortgagor;
and
(vi) Mortgagor shall otherwise comply with the terms and
conditions of this Mortgage and the other Loan Documents during the performance
of the Work.
(c) In the event any one or more of the conditions set forth in
Subsection 5.8(a) and 5.8(b) above is not satisfied, Mortgagee may elect, in its
sole discretion, to apply the Reconstruction Funds against the balance of the
Obligations, whether or not due, in such manner as Mortgagee shall elect.
(d) If an Event of Default shall occur hereunder, or if
Mortgagor shall fail diligently to pursue and complete the Work, Mortgagee may,
in its sole discretion, apply any undisbursed Reconstruction Funds and any of
Mortgagor's deposits against the balance of the Obligations, whether or not due,
in such manner as Mortgagee shall elect.
5.9 TAX AND INSURANCE ESCROW. Supplementing the provisions of
Sections 5.4 and 5.5 hereof, and if required by Mortgagee, Mortgagor shall pay
to Mortgagee on the payment date of installments of interest as provided in the
Note, together with and in addition to such installments of interest, an
installment of the Impositions and insurance premiums for such insurance as is
required hereunder, next due on the Mortgaged Property in an amount sufficient,
as estimated by Mortgagee, to accumulate the sum required to pay such
Impositions and insurance, as applicable, thirty (30) days prior to the due date
thereof. Amounts held hereunder shall not be, nor be deemed to be, trust funds,
but may be commingled with the general funds of Mortgagee, and no interest shall
be payable with respect thereto. Upon demand of Mortgagee, Mortgagor shall
deliver to Mortgagee, within ten (10) days after such demand, such additional
money as is necessary to make up any deficiencies in the amounts necessary to
enable Mortgagee to pay such Impositions and insurance premiums when due. In
case of an Event of Default, Mortgagee may apply any amount under this Section
remaining to Mortgagor's credit to the reduction of the Obligations, at such
times and in such manner as Mortgagee shall determine. Notwithstanding anything
contained herein to the contrary, Mortgagee will not enforce its rights to
require an escrow hereunder unless an Event of Default has occurred or if a
material adverse change in the financial condition of Mortgagor shall occur.
5.10 REPAIR. Mortgagor shall keep the Mortgaged Property in good
order and condition and make all necessary or appropriate repairs and
replacements thereof and betterments and improvements thereto, ordinary and
extraordinary, foreseen and unforeseen, and use its best efforts to prevent any
act that might impair the value or usefulness of 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.
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, 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) Mortgagor shall pay all costs and expenses in connection
with the Loan and the preparation, execution, and delivery of the Loan Documents
including, but not limited to, fees and disbursements of counsel appointed by
Mortgagee, and all recording costs and expenses, documentary stamp tax and
intangible tax on the entire amount of funds disbursed under the Loan, and other
taxes, surveys, appraisals, premiums for policies of title and other insurance
and all other fees, costs and expenses, if any, set forth in the Commitment, the
Loan Agreement, or otherwise connected with the Loan transaction.
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(b) Mortgagor shall pay or reimburse Mortgagee for all costs,
charges, expenses, and reasonable attorneys' fees paid or incurred by Mortgagee
pursuant to this Mortgage including but not limited to those costs, charges,
expenses and fees paid or incurred for the payment of the Impositions,
insurance, completion of construction, repairs, appraisal fees, environmental
assessment fees, or any other fees paid or incurred in any action, proceeding or
dispute of any kind in which Mortgagee is a party because of any Obligation not
being duly and promptly performed or being violated, including, but not limited
to, the foreclosure or other enforcement of this 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, arbitration, or forfeiture in rem. 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 Mortgage and
shall be due and payable by Mortgagor immediately, whether or not there be
notice or demand therefor.
(c) Any reference in this 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.
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 cost, performance, maintenance or condition of the
Mortgaged Property. Upon advance notice to Mortgagor, 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 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) an incorrect legal description of the Land; (ii) any action, or
inaction of Mortgagee in connection with the Note, this Mortgage, the other Loan
Documents or the Mortgaged Property; (iii) the construction of any Improvements;
(iv) the use and operation of the Mortgaged Property; (v) any acts or omissions
of Mortgagor or any other Person at, on or about the Mortgaged Property
regarding the contamination of air, soil, surface waters or groundwaters over,
on or under the Mortgaged Property; (vi) the presence, whether past, present or
future, of any Hazardous Material on, in or under the Mortgaged Property; or
(vii) any past, present or future events, conditions, circumstances, activities,
practices, incidents, actions or plans involving the manufacture, processing,
distribution, use, transport, handling, treatment, storage, disposal, cleanup,
emission, discharge, seepage, spillage, leakage, release or threatened release
of any Hazardous Material on, in, under or from the Mortgaged Property, in
connection with Mortgagor's operations on the Mortgaged Property, or otherwise;
all of the foregoing regardless of whether within the control of Mortgagee.
(b) The indemnifications of this Section 5.17 shall survive the
full payment and performance of the Obligations and the satisfaction of this
Mortgage.
5.18 MORTGAGOR TO FURNISH FINANCIAL STATEMENTS. Mortgagor shall
submit annual and interim financial statements and other accounting data as
required in the Loan Agreement. Such statements shall include, at a minimum: a
balance sheet; an income and expense statement; and a statement showing
contingent liabilities. Each unaudited statement must contain a certification to
Mortgagee of the statement's accuracy and completeness signed by an authorized
officer or the individual, as applicable. Unless otherwise specified in the Loan
Agreement, annual statements of business entities (including corporations) shall
be audited and bear the unqualified opinion of an acceptable certified public
accountant. The annual statements shall be submitted when required in the Loan
Agreement, or if not specified then no later than April 30 of each year of the
Loan term. Interim statements shall be submitted as required in the Loan
Agreement.
5.19 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 Mortgage and to subject
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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.
5.20 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) duly and promptly make all payments required by the
terms of the Junior Mortgage, (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 make any payment required under the
Junior Mortgage as and when due, or 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 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 5.20 shall in any manner be
construed as consent by Mortgagee to the further encumbering or mortgaging of
the Mortgaged Property.
5.21 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
rerecorded, 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.
5.22 WITHHOLDING TAXES.
(a) If under any applicable law or regulation or the
interpretation thereof by any Governmental Authority charged with the
administration thereof, Mortgagor shall be required to make any withholding or
deduction from any payment of the Obligations (whether of principal, interest or
otherwise) to be made by or on behalf of Mortgagor to Mortgagee for or in
respect of any present or future taxes, levies, imposts, duties, charges, or
fees of any nature (excepting only Mortgagee's income taxes of the United States
of America and its political subdivisions), the amount due to Mortgagee from
Mortgagor in respect of such payment shall be increased to the extent necessary
to ensure that after making such withholding or deduction and any withholdings
or deductions required to be made in respect to any such increase, Mortgagee
shall receive an amount equal to the amount which Mortgagee would have received
had no such withholding or deduction been required to be made. In the event of
any such withholding or deduction, Mortgagor shall deliver to Mortgagee
forthwith after receipt thereof the official receipt or other official
documentation evidencing the payment of the amount so withheld or deducted.
(b) If Mortgagor shall fail to make any withholding or deduction
so required to be made, Mortgagee reserves the right to make payment thereof to
the appropriate Governmental Authority. If Mortgagee makes such payment under
any applicable law or regulation or if as a result of the interpretation thereof
by any Governmental Authority charged with the administration thereof in respect
of any such payment, whether of principal, interest or otherwise made or to be
made by Mortgagor, Mortgagee shall be required to pay any tax, levy, impost,
duty, charge or fee of any nature (excepting only Mortgagee's income taxes of
the United States of America and its political subdivisions), Mortgagor shall
and does hereby indemnify Mortgagee against and shall forthwith upon demand of
Mortgagee pay to Mortgagee the amount of such payment, together with any
interest, penalties, and expenses in
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connection therewith, and interest thereon at the Default Rate; and in the event
any of the aforesaid amounts, interest, penalties or expenses shall be subject
to withholding or deduction, the amount thereof shall be increased to the extent
necessary to ensure that after making such withholding or deduction and any
withholdings or deductions in respect of any such increase, Mortgagee shall
receive an amount equal to the amount which Mortgagee would have received had no
such withholding or deduction been required to be made.
(c) Any increased amount required to be paid by Mortgagor in
accordance with the provisions of this Section 5.22 shall have the same
character as the amount in respect of which such increased amount is determined,
but shall not (i) if characterized as principal, be applied in reduction of the
principal amount outstanding under the Obligations or (ii) if characterized as
interest, be applied in reduction of accrued, unpaid interest under the
Obligations.
5.23 HAZARDOUS MATERIAL. Mortgagor hereby discloses to Mortgagee
that in the course of conducting Mortgagor's business upon the Mortgaged
Property, Mortgagor will use various chemicals in its manufacturing and assembly
processes, some of which may constitute a Hazardous Material, such as by way of
example, chlorine gas. Mortgagee hereby recognizes that such chemicals may be
used in the ordinary course of Mortgagor's business operations upon the
Property. Provided, however, that any such use, handling and storage of
Hazardous Material must be in compliance with all Environmental Requirements and
Environmental Laws, and shall not constitute a violation of such Environmental
Requirements and Environmental Laws or this Mortgage.
(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 except as to Hazardous Material lawfully
used by the Mortgagor in the ordinary course of Mortgagor's business operations
on 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 unlawfully used 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 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 Mortgage. All costs
and expenses incurred by Mortgagee in the exercise of any such rights shall be
secured by this Mortgage and shall be payable by Mortgagor upon demand.
(d) Except as to Hazardous Material lawfully used by the
Mortgagor in the ordinary course of Mortgagor's business operations on the
Mortgaged Property, if Mortgagee shall have reason to believe that any other
Hazardous Material affects the Mortgaged Property, or if required by any
Governmental Authority or Governmental Requirement, or if any Environmental
Claim is made or threatened, or if an Event of Default shall have occurred
hereunder or under any of the Loan Documents, or if the lien of the Mortgage is
foreclosed upon or upon a conveyance by deed in lieu of foreclosure wherein
possession of the Mortgaged Property has been given to and accepted by the
purchaser or grantee, then Mortgagor shall, within forty-five (45) days of
Mortgagee's written request, cause to be prepared an environmental assessment of
the Mortgaged Property and, if required by Mortgagee, 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 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 forty-five (45) 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 Mortgage and shall be payable by
Mortgagor upon demand or charged to Mortgagor's loan balance at the discretion
of Mortgagee. In the event Mortgagee causes an Environmental Assessment of the
Mortgaged Property to be conducted, Mortgagee agrees to provide a copy of such
Environmental Assessment to Mortgagor, upon Mortgagor's request.
5.24 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
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Mortgagor or the Mortgaged Property which may be 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.
5.25 APPRAISALS. In addition to the appraisals required by Mortgagee
prior to closing of the Loan, updated appraisals shall be prepared at
Mortgagor's expense when requested by Bank or when required in connection with
any extension options in the Note. Such appraisals shall be prepared in
accordance with written instructions from Mortgagee by a professional appraiser
selected and engaged by Mortgagee. Mortgagor shall cooperate fully with the
appraisal process and shall allow the appraisers reasonable access to the
Mortgaged Property and its tenants. Notwithstanding anything contained herein to
the contrary, Mortgagee shall not request updated appraisals pursuant to this
Section unless: (a) an Event of Default has occurred, or (b) if required by any
governmental law or regulation, or (c) no more than once in any calendar year,
for good cause (i.e. Mortgagee has reason to believe the value of the Mortgaged
Property has declined such that the Original Loan-to-Value Ratio [as defined
below] is no longer maintained).
5.26 REAPPRAISAL OF MORTGAGED PROPERTY. Mortgagor acknowledges that
Mortgagee was induced to enter into the subject Loan transaction based upon a
specific loan-to-value ratio (the "Original Loan-to-Value Ratio"). The Original
Loan-to-Value Ratio was based upon the appraised value (the "Original Appraised
Value") of the Mortgaged Property set forth in the appraisal Mortgagor submitted
to Mortgagee prior to the closing of the subject Loan transaction. If any
updated appraisal received by Mortgagee pursuant to Section 5.25 above reflects
that the appraised value of the Mortgaged Property has decreased from the
Original Appraised Value and if such decrease results in a loan-to-value ratio
which is higher than the Original Loan-to-Value Ratio, Mortgagor shall within
ten (10) days of Mortgagee's written request make a principal payment (the
"Prepayment") under the Note in an amount sufficient to maintain the Original
Loan-to-Value Ratio. Such Prepayment shall not entitle Mortgagor to a release of
any of the Mortgaged Property.
5.27 PERFORMANCE OF LOAN DOCUMENTS. Mortgagor shall duly and
punctually perform all covenants, terms and agreements expressed as binding upon
it under all of the Loan Documents.
5.28 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.
5.29 CONSTRUCTION LOAN AGREEMENT. The Loan evidenced by the Note and
secured by this Mortgage is to be disbursed in accordance with the terms and
provisions of the Loan Agreement. The Note, this Mortgage and the Loan Agreement
shall always be taken and read together as constituting parts of one
transaction. All sums disbursed pursuant to the terms of the Loan Agreement
shall be secured by this Mortgage with the same priority as if advanced on the
date hereof. Mortgagor shall fully, duly and promptly discharge each and every
of its agreements contained in the Loan Agreement and comply with, abide by and
perform all of the provisions and conditions thereof.
5.30 INTEREST RATE SWAP PROTECTION AGREEMENTS. Mortgagor shall duly
and punctually perform all covenants, terms and agreements expressed as binding
upon it under any Interest Rate Protection Agreements. Mortgagor acknowledges
that its obligations under any Interest Rate Protection Agreement are
obligations secured by this Mortgage. Further, Mortgagor acknowledges and agrees
that the occurrence of any event of default under any 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) or take or permit any action
that will in any way increase any ordinary fire or other hazard arising out of
the construction or operation thereof.
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(b) Mortgagor shall not, without the prior written consent of
Mortgagee, remove, demolish or substantially alter, or permit the removal,
demolishment or substantial alteration of, any Improvements on the Land. In the
event such consent is given and if any work to be performed shall involve an
estimated expenditure of more than $25,000.00, no such work shall be undertaken
until plans and specifications therefor, prepared by an architect satisfactory
to Mortgagee, shall have been submitted to and approved by Mortgagee.
(c) Mortgagor shall not permit any of the Fixtures or Personal
Property to be demolished or to be removed from the Land, without the prior
written consent of Mortgagee. In the event such consent is given, the Mortgagee
may require that said Fixture or Personal Property be replaced by an article of
equal suitability and value, owned by Mortgagor free and clear of any vendor's
lien, chattel mortgage, or security interest of any kind, except such as may be
approved in writing by Mortgagee, and that such replacement article be
encumbered by the lien of this Mortgage. Notwithstanding the foregoing, the
Mortgagor may remove or demolish any Fixture or Personal Property without first
obtaining the Mortgagee's prior written consent provided (i) the value of such
article does not exceed in value at the time of disposition thereof $50,000.00
for any single item, or a total of $150,000.00 in any one year for all such
items and (ii) that said article is replaced and subject to the lien of this
Mortgage as aforesaid.
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 Mortgage or the other Loan Documents) the Mortgaged Property or
income therefrom, other than this Mortgage, the other Loan Documents and the
Permitted Title Exceptions. Any transaction prohibited under this Section shall
be null and void.
(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.
6.4 TRANSFER OF MORTGAGED PROPERTY. Except as may otherwise be
expressly permitted in the Loan Agreement (if any) executed in connection with
this Mortgage, 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 MORTGAGOR'S CERTIFICATE OF INCORPORATION AND PARTNERSHIP
AGREEMENT. Mortgagor, if a corporation or a Partnership, shall not, without the
prior written consent of Mortgagee, materially amend or modify its articles or
certificate of incorporation or bylaws or its certificate of Partnership or
Partnership agreement.
6.6 ENVIRONMENTAL CONTAMINATION/HAZARDOUS MATERIAL. Mortgagor and
the Mortgaged Property shall at all times remain in full compliance with all
Environmental Laws. Except as to Hazardous Material lawfully used by the
Mortgagor in the ordinary course of Mortgagor's business operations on the
Mortgaged Property, 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.
ARTICLE VII
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT. An "Event of Default", as used in this
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 as and when due and payable;
(b) FAILURE TO PERFORM. If any Obligation other than an
Obligation requiring the payment of money or the occurrence of an event
described in Subsections 7.1(e), (g), (i), (l) or (m) below is not duly and
promptly performed or is violated and such non-performance or violation is not
curable, or if curable continues for a period of ten (10) days after written
notice thereof from Mortgagee to Mortgagor, provided, however, if such
non-performance or violation may not reasonably be cured within such ten (10)
day period, an Event of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be cured.
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Notwithstanding the foregoing, it shall be an Event of Default if such
non-performance or violation has not been cured within sixty (60) days after
notice thereof;
(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 breached;
(d) JUDGMENT. If a final judgment for the payment of money is
rendered against Mortgagor or any Guarantor, 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 any 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 any Guarantor or for all or any part of their
respective properties without their respective consents and such appointment is
not vacated within one hundred twenty (120) days, or if a petition is filed
against Mortgagor or any Guarantor 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 one
hundred twenty (120) days after the filing thereof;
(g) DISSOLUTION. If Mortgagor or any Guarantor voluntarily or
involuntarily dissolves or liquidates;
(h) FINANCIAL CONDITION. If a material adverse change has
occurred, at any time or times subsequent to the date hereof, in the financial
condition, results of operations, operations, business, properties, or prospects
of Mortgagor, its subsidiaries, parent or affiliates;
(i) DEFAULT UNDER LOAN DOCUMENTS. If any default occurs under
any of the other Loan Documents or if any obligation of Mortgagor under any of
the other Loan Documents is not fully performed;
(j) 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;
(k) NOTICE LIMITING FUTURE ADVANCES. If Mortgagor, pursuant to
FLORIDA STATUTES ss. 697.04(1)(b) as amended from time to time, files for record
a notice limiting the maximum amount which may be secured by this Mortgage;
(l) DEFAULT UNDER JUNIOR MORTGAGE. If any default or any event
of default occurs under any permitted Junior Mortgage, whether or not
foreclosure or other proceedings have been instituted thereunder; or
(m) OTHER EVENTS OF DEFAULT. If a general partner of Mortgagor,
if Mortgagor is a limited partnership, or any partner of Mortgagor, if Mortgagor
is a general partnership, is the subject of any occurrence described in
Subsections (d) through (h), inclusive, of this Article.
(n) DEFAULT UNDER INTEREST RATE PROTECTION AGREEMENT. If any
default or any event of default occurs under any Interest Rate Protection
Agreement or if Mortgagor fails to pay any sum due under any Interest Rate
Protection Agreement when due.
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
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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.
Notwithstanding anything to the contrary contained herein, the surrender of
possession of the Mortgaged Property by Mortgagor herein shall under no
circumstances be construed to mean Mortgagor's surrender of the business
operated on the Mortgaged Property.
(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) continue and
complete construction of, hold, store, use, operate, manage and control the
Mortgaged Property and conduct the business thereof; (B) make all reasonably
necessary maintenance, repairs, renewals, replacements, additions, betterments
and improvements thereto and thereon and purchase or otherwise acquire
additional Fixtures and Personal Property; (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.
(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, 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, Mortgagee shall be entitled to xxx for and to recover
judgment against the Mortgagor for the amount so due and unpaid together with
all costs and expenses (including, without limitation, 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. All such costs and expenses shall be secured by this Mortgage and
shall be due and payable by Mortgagor immediately.
(ii) If Mortgagor shall fail to pay upon the Mortgagee's
demand, after acceleration as provided in Subsection 8.1(a), all of the unpaid
Obligations, together with all accrued interest thereon, Mortgagee shall be
entitled to xxx for and to recover judgment against the Mortgagor for the entire
amount so due and unpaid together with all costs and expenses (including,
without limitation, 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. All such costs and
expenses shall be secured by this Mortgage and shall be payable by Mortgagor
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 Mortgage, including appellate proceedings.
(iii) No recovery of any judgment as provided in Subsections
(i) and (ii) above and no attachment or levy of any execution upon any of the
Mortgaged Property or any other property shall in any way affect the lien of
this 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 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, together with interest thereon, and to recover a
judgment against the Mortgagor therefor.
(iii) The Mortgagee is authorized to foreclose this 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
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proceedings instituted by the Mortgagee to collect the unpaid Obligations or to
collect any deficiency remaining unpaid after the foreclosure sale of the
Mortgaged Property.
(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 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.
(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 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 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 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, 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.
8.5 SALE. Any sale or sales made under or by virtue of this
Article shall operate to divest all the estate, right, title, interest, claim
and demand whatsoever at law or in equity, 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 may be 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:
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(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. Mortgagor shall be and remain liable to
Mortgagee for any difference between the net proceeds of sale and the amount of
the Obligations until all of the Obligations have been paid in full.
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 rights, 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 8.10 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 the terms of the Note, this
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) 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 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 Mortgage or the lien of any other
security interest in any other collateral now or hereafter held as security for
the Obligations; (g) join in the execution of a plat or replat of the Land; (h)
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) 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 Mortgage, now or hereafter, may be
limited or regulated by such Governmental Authorities, Mortgagee is hereby
excused from such performance.
9.2 MORTGAGEE'S FAILURE TO PERFORM. If Mortgagee fails to perform
its obligations (if any) under this 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 MORTGAGOR'S RIGHTS AND REMEDIES. The giving of the Notice and
the expiration of the Mortgagee Cure Period shall be conditions precedent to any
right of the Mortgagor to bring an action against Mortgagee. Mortgagor hereby
expressly agrees that its sole remedy against Mortgagee in any such action shall
be that of specific performance.
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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 the
Mortgagor 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 the Mortgagor 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 the Mortgagor or such other parties liable for such payments, as
applicable, shall notify the Mortgagee, in writing, that the Mortgagor or such
other party elects to have such excess sum returned to it forthwith, it being
the intent of the parties hereto that under no circumstances shall the Mortgagor
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 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 all of the
Obligations have been paid and performed in full; until Mortgagee has no further
obligation to make any advances under the Loan; and until Mortgagee, upon the
request of the Mortgagor, has executed a satisfaction of mortgage. Furthermore,
if for any reason no Obligations are owing, notwithstanding such occurrence,
this Mortgage shall remain valid and in full force and effect as to subsequent
Obligations, so long as Mortgagee has not executed a satisfaction of mortgage;
provided, however, that the indemnifications set forth in Article V of this
Mortgage shall survive the satisfaction of this Mortgage.
10.3 SURVIVAL OF WARRANTIES AND COVENANTS. The warranties,
representations, covenants and agreements set forth in this 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 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 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 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 at its address set forth
in the introduction to this Mortgage. 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.
10.6 MORTGAGEE'S RIGHT TO PAY AND PERFORM. If Mortgagor shall fail
to duly pay or perform any of the Obligations required by this 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 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 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 Mortgage shall be binding on the Mortgagor and shall run with the Land.
10.8 SUCCESSORS AND ASSIGNS. All of the terms of this 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.
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10.9 INVALIDITY.
(a) If any one or more of the provisions contained in this
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 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.
10.11 APPLICABLE LAW. This 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 REPLACEMENT OF NOTE. Upon receipt of evidence reasonably
satisfactory to Mortgagor of the loss, theft, destruction or mutilation of the
Note, or any amendment or modification thereto, including without limitation any
renewal note or additional note, and in the case of any such loss, theft, or
destruction, upon delivery of any indemnity agreement, reasonably satisfactory
to Mortgagor or, in the case of any such mutilation, upon surrender of such
mutilated note, Mortgagor will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the Note and dated as of
the date of the Note and upon such execution and delivery all references in any
of the Loan Documents to the Note shall be deemed to refer to the replacement
Note.
10.13 STRICT PERFORMANCE. It is specifically agreed that time is of
the essence as to all matters provided for in this 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 JOINT AND SEVERAL LIABILITY. If more than one Person executes
this Mortgage, each is and shall be jointly and severally liable hereunder; and
if Mortgagor is a general partnership, then all partners in Mortgagor (and if
Mortgagor is a limited partnership, then all general partners in Mortgagor)
shall be jointly and severally liable hereunder, notwithstanding any contrary
provision in the partnership laws of the State of Florida.
10.15 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 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), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND 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 MORTGAGE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS MORTGAGE APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
PINELLAS 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 MORTGAGE SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS MORTGAGE; OR (II) BE A
WAIVER BY THE MORTGAGEE OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SS. 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
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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 MORTGAGE. AT
MORTGAGEE'S OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE
ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE
DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF TRUST OR
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.
10.16 NO CROSS-COLLATERALIZATION. Notwithstanding anything contained
in this Mortgage or the Loan Documents to the contrary, Mortgagor and Mortgagee
do not intend for the Loan to be cross-collateralized with that certain line of
credit loan from Mortgagee to Mortgagor as evidenced by that certain Line of
Credit Consolidation Promissory Note in the amount of $10,000,000.00 dated March
25, 1998; provided, however, that said loans are intended to be cross-defaulted.
IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the
day and year first above written.
Mortgage, Assignment of Rents and Security Agreement Signed, sealed and
delivered in the presence of:
PLASMA-THERM, INC., a Florida corporation
/s/ XXXXXXXXX XXXXXXXX
------------------------------ By: /s/ XXXXX X. XXXXXX
Xxxxxxxxx Xxxxxxxx -------------------------------------
Signature of Witness Xxxxx X. Xxxxxx
Vice President and Chief
/s/ XXXXXXXXX XXXXXXXX Financial Officer
------------------------------
Xxxxxxxxx Xxxxxxxx (CORPORATE SEAL)
Legibly Print Name of Witness
/s/ XXXX XX XXXXXX
------------------------------
Xxxx Xx Xxxxxx
Signature of Witness
/s/ XXXX XX XXXXXX
------------------------------
Xxxx Xx Xxxxxx
Legibly Print Name of Witness
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 18th day
of February, 1999, by XXXXX X. XXXXXX, as the Vice President and Chief Financial
Officer of PLASMA-THERM, INC., a Florida corporation, on behalf of the
corporation. She [x] is personally known to me or [ ] has produced _____________
_____________ as identification.
/s/ XXXX XX XXXXXX
----------------------------------
/s/ XXXX XX XXXXXX
----------------------------------
(SEAL) Legibly Print Name of Notary Public
Notary Public
My Commission Expires:
XXXX XX XXXXXX XXXX XX XXXXXX
(SEAL) MY COMMISSION CC691150 (SEAL) MY COMMISSION CC691150
EXPIRES NOVEMBER 11, 2001 EXPIRES NOVEMBER 11, 2001
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EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I
Xxx 00, Xxxxx X xx XXXXXXXXXXX XXXXXXXX XXXX XXXXX II, according to the
plat thereof recorded in Plat Book 103, Pages 25 and 26 of the Public
Records of Pinellas County, Florida, less the North 130.00 feet thereof,
together with Xxx 00, Xxxxx X xx Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxx II,
according to a plat thereof as recorded in the Public Records of Pinellas
County, Florida recorded in Plat Book 103, Pages 25 and 26.
PARCEL II
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all in Block C
of METROPOINTE COMMERCE PARK PHASE II, according to the map or plat
thereof recorded in Plat Book 103, pages 25 and 26, Public Records of
Pinellas County, Florida.
