Exhibit 99.4
This instrument was prepared by and
after recording should be returned to:
Xxxxxxx X. Xxxxxx, Esq.
XXXXXX & XXXXXXXX LLP
Bank of America Plaza, Suite 3500
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
TROPICAL SPORTSWEAR INT'L CORPORATION,
a Florida corporation,
Mortgagor
to
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
a New York corporation,
as agent for itself and various other financial institutions,
Agent
AMENDED AND RESTATED FLORIDA MORTGAGE, fixture filing,
SECURITY AGREEMENT and assignment of rents and leases
(THE "MORTGAGE")
Dated: As of June 17, 2004
LOCATION OF PREMISES
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Hillsborough County, Florida
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NOTE TO RECORDER: THIS AMENDED AND RESTATED MORTGAGE SECURES (A) CERTAIN AMENDED AND RESTATED REVOLVING CREDIT
NOTES OF EVEN DATE HEREWITH AND (B) AMENDS AND RESTATES THE ORIGINAL MORTGAGE AS HEREINAFTER DEFINED. FLORIDA
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $91,000 (LEVIED ON AN APPROXIMATE AGGREGATE TOTAL INDEBTEDNESS OF
$26,000,000) AND FLORIDA NON-RECURRING INTANGIBLE TAXES IN THE AMOUNT OF $52,000 (LEVIED ON AN APPROXIMATE
AGGREGATE TOTAL INDEBTEDNESS OF $26,000,000) HAVE BEEN PAID IN CONNECTION WITH THE ORIGINAL MORTGAGE-REVOLVER (AS
THAT TERM IS DEFINED BELOW) WHICH ORIGINAL MORTGAGE-REVOLVER IS AMENDED AND RESTATED HEREBY. NO ADDITIONAL
DOCUMENTARY STAMP TAXES OR INTANGIBLE TAXES ARE DUE IN CONNECTION WITH THE RECORDATION HEREOF.
THE AMOUNT SECURED BY THIS MORTGAGE IS LIMITED TO $19,800,000.
THIS MORTGAGE IS INTENDED TO BE A FIXTURE FILING WHICH IS TO BE RECORDED IN THE REAL PROPERTY RECORDS OF THE
COUNTY OF HILLSBOROUGH, FLORIDA, AND INDEXED AS A FIXTURE FILING IN SUCH RECORDS. FOR THE PURPOSE OF USING THIS
MORTGAGE AS A FIXTURE FILING, THE MORTGAGOR IS THE DEBTOR, MORTGAGEE IS THE SECURED PARTY, EACH IS AN INDIVIDUAL
OR AN ENTITY OF THE TYPE SET FORTH IN THE INTRODUCTORY PARAGRAPH OF THIS MORTGAGE, THE ADDRESSES OF THE DEBTOR
AND THE SECURED PARTY ARE SET FORTH IN THE NOTICE PROVISION OF THIS MORTGAGE, THE COLLATERAL COVERED BY THIS
FIXTURE FILING IS SET FORTH IN THIS MORTGAGE, THE PORTION OF THE COLLATERAL DESCRIBED IN THIS MORTGAGE WHICH ARE
OR ARE TO BECOME FIXTURES ARE OR WILL BE AFFIXED TO THE LAND DESCRIBED IN EXHIBIT A WHICH IS ATTACHED HERETO AND
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INCORPORATED HEREIN, AND THE DEBTOR IS THE RECORD OWNER OF THE REAL PROPERTY.
THIS AMENDED AND RESTATED MORTGAGE, FIXTURE FILING, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES AMENDS
AND RESTATES THE TERMS AND PROVISIONS OF THAT CERTAIN SECOND FLORIDA MORTGAGE, FIXTURE FILING, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS AND LEASES EXECUTED BY MORTGAGOR IN FAVOR OF FLEET CAPITAL CORPORATION, A RHODE ISLAND
CORPORATION ("FLEET"), AS AGENT (IN SUCH CAPACITY, THE "ORIGINAL AGENT") FOR ITSELF AND VARIOUS OTHER FINANCIAL
INSTITUTIONS (THE "ORIGINAL LENDERS"), AND RECORDED IN OFFICIAL RECORDS BOOK 13091, PAGE 927, PUBLIC RECORDS OF
HILLSBOROUGH COUNTY, FLORIDA (THE "RECORDS"), AS AMENDED BY FIRST AMENDMENT TO SECOND FLORIDA MORTGAGE, FIXTURE
FILING, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES, DATED JANUARY 12, 2004, BETWEEN MORTGAGOR AND
ORIGINAL AGENT, AND RECORDED IN OFFICIAL RECORDS BOOK 13485, PAGE 251 OF THE RECORDS (THE "ORIGINAL MORTGAGE" OR
THE "ORIGINAL MORTGAGE-REVOLVER"). THE ORIGINAL MORTGAGE SECURED REVOLVING LOANS UP TO A MAXIMUM AGGREGATE
AMOUNT OUTSTANDING AT ANY ONE TIME OF $26,000,000 UNDER THE SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (THE "ORIGINAL LOAN AGREEMENT") AMONG THE MORTGAGOR AND CERTAIN OF ITS SUBSIDIARIES, AS BORROWERS, THE
ORIGINAL LENDERS AND THE ORIGINAL AGENT. IMMEDIATELY PRIOR TO THE EXECUTION OF THIS MORTGAGE, THE CIT
GROUP/COMMERCIAL SERVICES, INC. ("CIT") PURCHASED FROM THE ORIGINAL LENDERS ALL OF THEIR OUTSTANDING REVOLVING
LOANS AND REVOLVING LOAN COMMITMENTS UNDER THE ORIGINAL LOAN AGREEMENT, AND CIT WAS SUBSTITUTED AS THE "AGENT"
UNDER THE ORIGINAL LOAN AGREEMENT. THE MORTGAGOR AND CERTAIN OF ITS SUBSIDIARIES, AS BORROWERS, THE AGENT, CIT
AND FLEET HAVE AMENDED AND RESTATED THE ORIGINAL LOAN AGREEMENT AND DESIRE TO AMEND AND RESTATE THE ORIGINAL
MORTGAGE AS HEREINAFTER DESCRIBED.
AMENDED AND RESTATED FLORIDA MORTGAGE, FIXTURE FILING,
SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES
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THIS AMENDED AND RESTATED FLORIDA MORTGAGE, FIXTURE FILING, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
AND LEASES ("Mortgage"), made and executed this 17th day of June, 2004, by TROPICAL SPORTSWEAR INT'L CORPORATION,
a Florida corporation (hereinafter called "Mortgagor"); and THE CIT GROUP/COMMERCIAL SERVICES, INC., a New York
corporation, as administrative agent (in such capacity, hereinafter called "Agent") for the lender parties from
time to time (the "Lenders") to the Loan Agreement (as defined below);
WITNESSETH:
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NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable
consideration, the receipt and sufficiency whereof is hereby expressly acknowledged, and in order to secure the
indebtedness and other obligations of Mortgagor hereinafter set forth, Mortgagor does hereby grant, bargain,
sell, convey and mortgage to Agent for the benefit of the Lenders, and Agent's successors and assigns, the
following:
(A) THE LAND: The land (the "Land") situated in the County of Hillsborough, State of Florida,
which is described in detail in Exhibit A attached hereto and made a part hereof.
(B) THE IMPROVEMENTS: TOGETHER WITH (1) all the buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and (2) all fixtures, machinery, appliances, equipment,
furniture and personal property of every nature whatsoever now or hereafter owned by Mortgagor and located in or
on, attached to, and used or intended to be used in connection with or with the operation of, the Land,
buildings, structures or other improvements, or in connection with any construction being conducted or which may
be conducted thereon, and owned by Mortgagor, and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to any of the foregoing, and all of the right, title and interest of Mortgagor in
and to any such personal property or fixtures, which, to the fullest extent permitted by law, shall be
conclusively deemed fixtures and a part of the real property encumbered hereby (hereinafter called the
"Improvements").
(C) CROPS AND TIMBER: TOGETHER WITH all right, title and interest of Mortgagor in and to all
crops, trees, timber, wood products, cut timber and other emblements now or hereafter located on or generated by
or produced from the Land, or any part or parcel thereof whether before or after severance from the Land.
(D) EASEMENTS: TOGETHER WITH all easements, rights-of-way, gores of land, streets, ways, alleys,
passages, sewer rights, water courses, water rights and powers, and all appurtenances whatsoever, in any way
belonging, relating or appertaining to any of the property described in paragraphs (A), (B) and (C) hereof, or
which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor.
(E) CONDEMNATION: TOGETHER WITH (i) all of the estate, right, title and interest of Mortgagor of,
in and to all judgments, insurance proceeds, awards of damages and settlements hereafter made resulting from
condemnation proceedings or the taking of the property described in paragraphs (A), (B), (C) and (D) hereof or
any part thereof under the power of eminent domain, or for any damage (whether caused by such taking or
otherwise) to the property described in paragraphs (A), (B), (C) and (D) hereof or any part thereof, or to any
rights appurtenant thereto, and all proceeds of any sales or other disposition of the property described in
paragraphs (A), (B), (C) and (D) hereof or any part thereof; and Agent is hereby authorized to collect and
receive said awards and proceeds and to give proper receipts and acquittances therefor, and (if it so elects) to
apply the same toward the payment of the indebtedness and other sums secured hereby, notwithstanding the fact
that the amount owing thereon may not then be due and payable; (ii) all contract rights, general intangibles,
actions and rights in action, including without limitation all rights to insurance proceeds and unearned premiums
arising from or relating to the property described in paragraphs (A), (B), (C) and (D) above; and (iii) all
proceeds, products, replacements, additions, substitutions, renewals and accessions of and to the property
described in paragraphs (A), (B), (C) and (D).
(F) RENTS AND PROFITS: TOGETHER WITH all rents, income and other benefits to which Mortgagor may
now or hereafter be entitled from the property described in paragraphs (A), (B), (C) and (D) hereof to be applied
against the indebtedness and other sums secured hereby; provided, however, that permission is hereby given to
Mortgagor, so long as no Event of Default (as defined in Section 2.01) has occurred and is continuing hereunder,
to collect and use such rents, income and other benefits as they become due and payable, but not in advance
thereof. Upon the occurrence of any such Event of Default, the permission hereby given to Mortgagor to collect
such rents, income and other benefits from the property described in paragraphs (A), (B), (C) and (D) hereof
shall terminate and such permission shall not be reinstated upon a cure of such Event of Default without Agent's
specific written consent.
The foregoing provisions hereof shall constitute an absolute and present assignment of the rents, income
and other benefits from the property described in paragraphs (A), (B), (C) and (D) above, subject, however, to
the conditional permission given to Mortgagor to collect and use such rents, income and other benefits as
hereinabove provided; and the existence or exercise of such right of Mortgagor shall not operate to subordinate
this assignment to any subsequent assignment, in whole or in part, by Mortgagor, and any such subsequent
assignment by Mortgagor shall be subject to the rights of Agent hereunder.
(G) LEASES: TOGETHER WITH all right, title and interest of Mortgagor in and to any and all leases
now or hereafter on or affecting the property described in paragraphs (A), (B), (C) and (D) hereof, together with
all security therefor and all monies payable thereunder, and all books and records which contain payments made
under the leases and all security therefor.
(H) OTHER RIGHTS: TOGETHER WITH (i) Mortgagor's rights further to encumber the property described
in paragraphs (A) through (G) above for debt, and (ii) all of Mortgagor's rights to enter into any lease or lease
agreement.
All of the property described in paragraphs (A) through (H) above, and each item of property therein
described, is hereinafter referred to as the "Property".
TO HAVE AND TO HOLD the Property and all parts thereof unto Agent for the benefit of the Lenders, and
Agent's successors and assigns, to its own proper use and benefit forever, subject, however, to the terms and
conditions contained herein.
This Mortgage is executed and delivered by Mortgagor to secure the following described obligations,
liabilities and indebtedness of Mortgagor to Agent and Lenders (hereinafter collectively referred to as the
"Obligations"):
(a) All loans, advances, indebtedness, obligations and liabilities now or from time to
time hereafter owing by Mortgagor to Lenders under that certain Loan and Security Agreement, dated of even date
herewith, among Mortgagor, the other borrower parties thereto, Agent and Lenders (such Loan and Security
Agreement, as it may hereafter be amended from time to time, being hereinafter called the "Loan Agreement"), or
under any agreement, instrument or document executed or delivered to Agent or Lenders in respect of the Loan
Agreement or the transactions contemplated thereby, pursuant to which Lenders have agreed to make a $60,000,000
revolving line of credit available to Mortgagor pursuant to which revolving loans may be made, repaid and
readvanced in accordance with the Loan Agreement and which loans are evidenced by Mortgagor's Revolving Credit
Notes (the "Notes") in the aggregate principal amount of $60,000,000;
(b) All obligations, liabilities and indebtedness of Mortgagor arising under this Mortgage;
(c) Any and all advances made by Agent or Lenders to protect or preserve the Property or
the security interest created hereby on the Property or for taxes, assessments or insurance premiums as
hereinafter provided or for the performance of any of the obligations hereunder or for any other purpose provided
herein (whether or not the original Mortgagor remains the owner of the Property at the time of such advances);
(d) Any and all renewals, extensions, modifications, substitutions, replacements or
consolidations of the Notes or any other indebtedness, liabilities and obligations described in paragraphs (a),
(b) and (c) above; and
(e) All other obligations, liabilities and indebtedness of every kind and character now or
hereafter owing by Mortgagor to Agent or Lenders, however created, incurred or evidenced, direct or indirect,
absolute or contingent, and whether owing under the Loan Agreement, the Notes, this Mortgage or any other
agreement, instrument or document executed in connection with the Loan Agreement or otherwise or the consummation
of the transactions contemplated by the Loan Agreement, including, without limitation, all "Obligations" of
Mortgagor to Agent and Lenders.
The Loan Agreement, the Notes and any and all renewals, extensions, modifications, substitutions,
replacements or consolidations thereof, this Mortgage and all other instruments, agreements and documents
referred to or contemplated by the Loan Agreement are hereinafter called the "Loan Documents".
Notwithstanding any term or provision contained in this Mortgage to the contrary, the maximum amount of
the Obligations which shall be secured hereby at any one time shall not exceed the principal sum of $19,800,000,
and all interest, fees, costs and advances made by Agent or Lenders to protect or preserve the Property or the
lien hereof on the Property, or for taxes, assessments or insurance premiums as herein provided, owed by
Mortgagor to Agent or Lenders.
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or cause to be paid to Agent and Lenders the
Obligations secured hereby according to the tenor and effect thereof when or before the same shall become due and
payable and shall keep, perform and observe all covenants and promises in accordance with the Loan Agreement
contained in the Loan Documents and in this Mortgage and in all other instruments securing the Obligations, to be
kept, performed or observed by Mortgagor, then, upon complete satisfaction and payment thereof, Agent shall
release and reconvey the Property unto the parties legally entitled thereto at the cost of Mortgagor.
ARTICLE ONE
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COVENANTS OF MORTGAGOR
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Mortgagor covenants and agrees with Agent, or any successor in title as holder of the Obligations
secured hereby, as follows:
1.01 Performance of Loan Documents. Mortgagor shall cause to be performed, observed and complied
with all provisions of the Loan Document.
1.02 General Representations, Covenants and Warranties. Mortgagor represents, warrants and
covenants that (a) subject only to the rights of others provided in the instruments described in Exhibit B
attached hereto and incorporated herein and made a part hereof, Mortgagor is seized of an indefeasible estate in
fee simple in, and has good and absolute title to, the Property, and has good right, full power and lawful
authority to mortgage and pledge the same as provided herein and Agent may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the Property in accordance with the terms hereof; (b) the Property is free and
clear of all liens, security interests, charges and encumbrances whatsoever except those described in Exhibit B;
(c) the Mortgagor will maintain and preserve the lien of this Mortgage until the Obligations secured hereby have
been paid in full; (d) the Property is improved with those improvements described in Exhibit C attached hereto
and incorporated herein and made a part hereof and has frontage on, and direct access of ingress, egress, and
regress to, the street(s) described therein; (e) electric, gas, sewer, water facilities and any other necessary
utilities are, and at all times hereafter shall be, available in sufficient capacity to service the Property
satisfactorily as it is presently used or improved by Mortgagor, and any easements necessary to the furnishing of
such utility service by Mortgagor have been obtained; and (f) the representations, warranties and covenants made
by Mortgagor in the Loan Documents are incorporated herein by reference and made a part hereof.
1.03 Compliance with Laws. Except as otherwise disclosed in the Loan Agreement or in the
Environmental Reports (as such term is defined in the Loan Agreement), Mortgagor covenants and warrants that the
Property presently complies in all material respects with and will continue to comply with all applicable
restrictive covenants, applicable zoning and subdivision ordinances and building codes, all applicable health and
environmental laws and regulations and all other applicable laws, rules and regulations which affect the Property
and the operations of Mortgagor on the Property. If Mortgagor receives notice from any federal, state or other
governmental body that it is not in compliance with any such covenant, ordinance, code, law or regulation,
Mortgagor will provide Agent with a copy of such notice promptly and Mortgagor shall promptly comply with the
provisions of such notice.
1.04 Taxes and Other Charges.
1.04.1 Taxes and Assessments. Mortgagor shall pay promptly when due all taxes, assessments,
rates, dues, charges, fees, levies, fines, impositions, liabilities, obligations and encumbrances of every kind
whatsoever now or hereafter imposed, levied or assessed upon or against the Property or any part thereof, or upon
or against this Mortgage or the Obligations secured hereby, or upon or against the interest of Agent in the
Property, as well as all income taxes, assessments and other governmental charges levied and imposed by the
United States of America or any state, county, municipality or other taxing authority upon or against Mortgagor
or in respect of the Property or any part thereof; provided, however, that Mortgagor may contest the payment of
any such tax, assessment or other charges in the manner set forth in the Loan Agreement.
1.04.2 Mechanic's and Other Liens. Mortgagor shall not permit or suffer any mechanic's,
laborer's, materialman's, statutory or other lien (other than any lien for taxes not yet due) to be created upon
the Property; provided, however, if such lien is bonded in a manner satisfactory to Agent for the full amount
thereof, the validity and amount of the claims secured thereby may be actively contested by Mortgagor in good
faith and by appropriate lawful proceedings; provided, further, however, any such lien shall not materially
detract from the value of the Property or materially impair the use thereof in Mortgagor's business.
1.04.3 Taxes Affecting Agent's Interest. If any state, federal, municipal or other governmental law,
order, rule or regulation, passed subsequent to the date hereof, in any manner changes or modifies existing laws
governing the taxation of deeds of trust, mortgages or debts secured by deeds of trust, mortgages, or the manner
of collecting taxes so as materially, adversely to affect Agent's security in the Property for the benefit of
Lenders, the entire balance of the Obligations secured by this Mortgage and all interest accrued thereon shall
without notice become due and payable forthwith at the option of Agent.
1.04.4 Tax Escrow. In order to secure the performance and discharge of Mortgagor's
obligations under this paragraph 1.04, but not in lieu of such obligations, Mortgagor, upon Agent's request after
the occurrence of an Event of Default, will pay over to Agent for the benefit of Lenders an amount equal to
one-twelfth (1/12th) of the next maturing annual ad valorem taxes, assessments and charges (which taxes,
assessments and charges, for purposes of this paragraph, shall include without limitation water and sewer rents
and shall hereinafter be collectively called "Taxes") of the nature described in paragraph 1.04 for each month
that has elapsed since the last date to which such Taxes were paid; and Mortgagor will, in addition, upon Agent's
request after the occurrence of an Event of Default, pay over to Agent for the benefit of Lenders together with
each installment on the Obligations sufficient funds (as estimated from time to time by Agent in its sole
discretion) to permit Agent to pay when due the Taxes. Upon Agent's request, Mortgagor shall also deliver to
Agent for the benefit of Lenders such additional monies as are required to make up any deficiencies in the
amounts necessary to enable Agent to pay the Taxes. Such deposits shall not be, nor be deemed to be, trust funds
but may be commingled with the general funds of Agent, and no interest shall be payable in respect thereof. Upon
the occurrence of an Event of Default, Agent may apply to the reduction of the Obligations secured hereby, in
such manner as Agent shall determine, any amount under this paragraph 1.04.4 remaining to Mortgagor's credit.
1.04.5 No Credit Against the Obligations Secured Hereby. The Mortgagor shall not claim, demand
or be entitled to receive any credit, against the principal or interest payable on the Obligations for so much of
the Taxes assessed against the Property or any part thereof or that are applicable to the Obligations secured
hereby or to Agent's interest in the Property. No deduction shall be claimed from the taxable value of the
Property or any part thereof by reason of the Obligations, this Mortgage or any other instrument securing the
Obligations.
1.04.6 Insurance.
(a) Mortgagor shall, at its sole expense, keep the Property insured in such amounts and
against such risks and damages as is required by the Loan Agreement.
(b) In order to secure the performance and discharge of Mortgagor's obligations under this
paragraph 1.04.6, but not in lieu of such obligations, Mortgagor, upon Agent's request after the
occurrence of an Event of Default, will pay over to Agent for the benefit of Lenders an amount equal to
one-twelfth (1/12th) of the next maturing annual insurance premiums for each month that has elapsed
since the last date to which such premiums were paid; and Mortgagor will, in addition, upon Agent's
request after the occurrence of an Event of Default, pay over to Agent for the benefit of Lenders
sufficient funds (as estimated from time to time by Agent in its sole discretion) to permit Agent to pay
said premiums when due. Such deposits shall not be, nor be deemed to be, trust funds but may be
commingled with the general funds of Agent, and no interest shall be payable in respect thereof. Upon
Agent's request, Mortgagor shall also deliver to Agent for the benefit of Lenders such additional monies
as are necessary to make up any deficiencies in the amounts necessary to enable Agent to pay such
premiums when due.
(c) Pursuant to its rights granted hereunder in all proceeds from any insurance policies,
Agent is hereby authorized and empowered at its option to adjust or compromise any loss under any
insurance policies on the Property and to collect and receive the proceeds from any such policy or
policies; provided, however, that Agent agrees to consult in good faith with Mortgagor prior to finally
making, settling, or adjusting claims under such policies of insurance and to settle and adjust in good
faith all such claims. Each insurance company is hereby authorized and directed to make payment for all
such losses directly to Agent alone and not to Mortgagor and Agent jointly. After deducting from such
insurance proceeds any expenses incurred by Agent in the collection or handling of such funds, the net
proceeds received by Agent shall be applied as described in Section 8.6(c) of the Loan Agreement. If
Agent determines that such net proceeds shall be used to rebuild, restore or replace the destroyed
Property, then such net proceeds may, at the option of Agent, be held by Agent for Mortgagor's benefit
(subject to the lien of Agent therein as security for the Obligations) and advanced to Mortgagor from
time to time, but not more often than monthly, against such requisition or other evidence of restoration
or repair of the Property, including architect's or engineer's certificates and copies of bills and
invoices for work and materials used in connection therewith, as Agent may reasonably require, without
affecting the lien of this Mortgage for the full amount of the Obligations secured hereby. In no event,
however, shall any advance be made which will result in the funds remaining with Agent being less than
the cost of completion of restoration of the Property as estimated by an architect or engineer
reasonably satisfactory to Agent. If, upon completion of restoration of the Property there remain funds
with Agent, Agent shall apply the remaining funds to the Obligations secured hereby. Any funds applied
against the Obligations secured hereby shall be applied to particular Obligations, whether then matured
or to mature in the future, in such order and in such manner as Agent in its discretion determines.
1.04.7 Non-Impairment of Agent's Rights. Nothing contained in either of paragraphs 1.04.4
and 1.04.6(b) shall be deemed to affect any right or remedy of Agent under any provision of this Mortgage or of
any statute or rule of law to pay any amount required to be paid by paragraphs 1.04.1 and 1.04.6 and to add the
amount so paid to the Obligations hereby secured. Although Agent intends to use its best efforts to make such
payments in a timely fashion, the arrangements provided for in paragraphs 1.04.4 and 1.04.6 are solely for the
added protection of Agent and entail no responsibility on Agent's part beyond the allowing of due credit, without
interest, for sums actually received by it. Upon assignment of this Mortgage, any funds on hand shall be turned
over to the assignee and any responsibility of Agent with respect thereto shall terminate.
1.05 Condemnation. Agent, on behalf of Lenders, shall be entitled to all compensation awards,
damages, claims, rights of action and proceeds of, or on account of, any damage or taking through condemnation
and is hereby authorized, at its option, to commence, appear in and prosecute in its own or the Mortgagor's name
any action or proceeding relating to any condemnation and to settle or compromise any claim in connection
therewith; provided, however, that Agent agrees to consult in good faith with Mortgagor prior to settling or
compromising any such claim and to settle and compromise in good faith any such claim. All such compensation
awards, damages, claims, rights of action and proceeds, and any other payments or relief, and the right thereto,
are included in the Property and Agent, after deducting therefrom all of its expenses including attorneys' fees
incurred in the collection or handling of such funds, shall apply the net proceeds thereof in the same manner as
described for insurance proceeds in Section 1.04.6(c) of this Mortgage. If Agent determines that such net
proceeds shall be used to rebuild, restore or replace the destroyed Property, then such net proceeds may, at the
option of Agent, be held by Agent for Mortgagor's benefit (subject to the lien of Agent therein as security for
the Obligations) and advanced to Mortgagor from time to time, but not more often than monthly, against such
requisition or other evidence of restoration or repair of the Property, including architect's or engineer's
certificates and copies of bills and invoices for work and materials used in connection therewith, as Agent may
reasonably require, without affecting the lien of this Mortgage for the full amount of the Obligations secured
hereby. In no event, however, shall any advance be made which will result in the funds remaining with Agent
being less than the cost of completion of restoration of the Property as estimated by an architect or engineer
reasonably satisfactory to Agent. If, upon completion of restoration of the Property there remain funds with
Agent, Agent shall apply the remaining funds to the Obligations secured hereby. Any funds applied against the
Obligations secured hereby shall be applied to particular Obligations, whether then matured or to mature in the
future, in such order and in such manner as Agent in its discretion determines. Mortgagor agrees to execute such
further assignments of any compensation awards, damages, claims, rights of action and proceeds as Agent may
require. Notwithstanding any such condemnation, Mortgagor shall continue to pay interest, computed at the rate
provided in the Loan Documents, on the entire unpaid principal amount thereof.
1.06 Care of Property.
(a) Mortgagor shall preserve and maintain the Property in good condition and repair,
ordinary wear and tear excepted. Mortgagor shall not permit, commit or suffer any waste, impairment or
deterioration of the Property or of any part thereof, and will not take any action which will increase the risk
of fire or other hazard to the Property or to any part thereof.
(b) No part of the Property shall be removed, demolished or altered, without the prior
written consent of Agent, with the exception of the extraction of minerals in the ordinary course of Mortgagor's
business.
(c) Agent or any Lender may enter upon and inspect the Property at any reasonable time
during the life of this Mortgage.
(d) If any part of the Property shall be lost, damaged or destroyed by fire or any other
cause, Mortgagor will give immediate written notice thereof to Agent and shall promptly restore the Property to
the equivalent of its original condition regardless of whether or not there shall be any insurance proceeds
therefor. If a part of the Property shall be lost, physically damaged, or destroyed through condemnation,
Mortgagor will promptly restore, repair or alter the remaining property in a manner satisfactory to Agent.
(e) No work required to be performed under this paragraph shall be undertaken until plans
and specifications therefor have been submitted to and approved in writing by Agent.
1.07 Further Assurances. At any time and from time to time, upon Agent's request, Mortgagor shall
make, execute and deliver, or cause to be made, executed and delivered, to Agent and where appropriate shall
cause to be recorded or filed, and from time to time thereafter to be re-recorded and refiled at such time and in
such offices and places as shall be deemed desirable by Agent, any and all such further mortgages, deeds of
trust, instruments or further assurance, certificates and other documents as Agent may consider necessary or
desirable in order to effectuate, complete, or perfect, or to continue and preserve the obligations of Mortgagor
under this Mortgage and the other Loan Documents, and the lien of this Mortgage as a lien upon all of the
Property, whether now owned or hereafter acquired by Mortgagor. Upon any failure by Mortgagor to do so, Agent
may make, execute, record, file, re-record or refile any and all such deeds of trust, instruments, certificates
and documents for and in the name of Mortgagor, and Mortgagor hereby irrevocably appoints Agent the agent and
attorney-in-fact of Mortgagor to do so.
1.08 Security Agreements and Financing Statements. Mortgagor (as Debtor) hereby grants to Agent for
the benefit of Lenders (as Creditor and Secured Party) a security interest in (i) all fixtures, machinery,
appliances, equipment, furniture and personal property of every nature whatsoever constituting part of the
Property and (ii) all crops, trees, timber, timber or wood products, cut timber and other emblements now or
hereafter located on or generated by or produced from the Land, or any part or parcel thereof whether before or
after severance from the Land (the "Collateral").
Mortgagor shall execute any and all such documents, including without limitation, financing statements
pursuant to the applicable Uniform Commercial Code, as Agent may request, to preserve and maintain the priority
of the lien created hereby on property which may be deemed personal property or fixtures, and shall pay to Agent
on demand any expenses incurred by Agent in connection with the preparation, execution and filing of any such
documents. Mortgagor hereby authorizes and empowers Agent to execute and file, on Mortgagor's behalf, all
financing statements and refilings and continuations thereof as Agent deems necessary or advisable to create,
preserve and protect said lien. When and if Mortgagor and Agent shall respectively become the Debtor and Secured
Party in any Uniform Commercial Code financing statement affecting the Property, this Mortgage shall be deemed a
security agreement as defined in said Uniform Commercial Code and the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall be (i) as prescribed herein, (ii) by
general law, or (iii) as to such part of the security which is also reflected in said financing statement by the
specific statutory consequences now or hereafter enacted and specified in the Uniform Commercial Code, all at
Agent's sole election.
Mortgagor and Agent agree that the filing of a financing statement in the records normally having to do
with personal property shall never be construed as in any way derogating from or impairing the express
declaration and intention of the parties hereto, hereinabove stated, that everything used in connection with the
production of income from the Property and/or adapted for use therein and/or which is described or reflected in
this Mortgage is, and at all times and for all purposes and in all proceedings both legal or equitable, shall be
regarded as part of the real estate encumbered by this Mortgage irrespective of whether (i) any such item is
physically attached to the Improvements, (ii) serial numbers are used for the better identification of certain
equipment items capable of being thus identified in a recital contained herein or in any list filed with Agent,
or (iii) any such item is referred to or reflected in any such financing statement so filed at any time.
Similarly, the mention in any such financing statement of (1) rights in or to the proceeds of any fire and/or
hazard insurance policy, or (2) any award in eminent domain proceedings for a taking or for loss of value, or (3)
Mortgagor's interest as lessor in any present or future lease or rights to income growing out of the use and/or
occupancy of the Property, whether pursuant to lease or otherwise, shall never be construed as in any way
altering any of the rights of Agent as determined by this instrument or impugning the priority of Agent's lien
granted hereby or by any other recorded document, but such mention in the financing statement is declared to be
for the protection of Agent in the event any court or judge shall at any time hold with respect to (1), (2) and
(3) that notice of Agent's priority of interest to be effective against a particular class of persons, including
but not limited to the federal government and any subdivisions or entity of the federal government, must be filed
in the Uniform Commercial Code records.
1.09 Assignment of Rents. The assignment contained in paragraph (F) of this Mortgage shall be fully
operative without any further action on the part of either party and specifically Agent shall be entitled, at its
option, upon the occurrence of an Event of Default hereunder, to all rents, income and other benefits from the
property described in paragraphs (A), (B), (C), (D) and (E) hereof whether or not Agent takes possession of such
property. Upon the occurrence of an Event of Default, Mortgagor hereby further grants to Agent the right (i) to
enter upon and take possession of the Property for the purpose of collecting the said rents, income and other
benefits, (ii) to dispossess by the usual summary proceedings any tenant defaulting in the payment thereof to
Agent, (iii) to let the Property or any part thereof, and (iv) to apply said rents, income and other benefits,
after payment of all necessary charges and expenses, on account of the Obligations secured hereby. Such
assignment and grant shall continue in effect until the Obligations secured hereby are paid, the execution of
this Mortgage constituting and evidencing the irrevocable consent of Mortgagor to the entry upon and taking
possession of the Property by Agent pursuant to such grant, whether or not foreclosure has been instituted.
Neither the exercise of any rights under this paragraph by Agent nor the application of any such rents, income or
other benefits to the Obligations secured hereby, shall cure or waive any default or notice of default hereunder
or invalidate any act done pursuant hereto or to any such notice, but shall be cumulative of all other rights and
remedies.
1.10 Leases Affecting Property. Mortgagor represents that the schedule of leases set forth in
Exhibit C is true and correct; that all such leases are presently in effect and that no default by Mortgagor
exists in such leases. As any such lease shall expire or terminate or as any new lease shall be made, Mortgagor
shall so notify Agent in order that at all times Agent shall have a current list of all leases affecting the
property described in paragraphs (A), (B), (C) and (D). The assignment contained in paragraph (G) hereof shall
not be deemed to impose upon Agent any of the obligations or duties of Mortgagor provided in any such lease
(including, without limitation, any liability under the covenant of quiet enjoyment contained in any lease in the
event that any tenant shall have been joined as a party defendant in any action to foreclose this Mortgage and
shall have been barred and foreclosed thereby of all right, title and interest and equity of redemption in the
Property or any part thereof), and Mortgagor shall comply with and observe its obligations as landlord under all
leases affecting the Property or any part thereof. Mortgagor, if required by Agent, shall furnish promptly to
Agent original or certified copies of all such leases now existing or hereafter created. Mortgagor shall not,
without the express prior written consent of Agent, amend, modify, extend, terminate or cancel, accept the
surrender of, subordinate, accelerate the payment of rent as to, or change the terms of any renewal option of any
such lease now existing or hereafter created, or permit or suffer an assignment or sublease. Mortgagor shall not
accept payment of rent more than one (l) month in advance without the prior written consent of Agent.
With respect to the assignment contained in paragraph (G), Mortgagor shall, from time to time upon
request of Agent, specifically assign to Agent as additional security hereunder, by an instrument in writing in
such form as may be approved by Agent, all right, title and interest of Mortgagor in and to any and all leases
now or hereafter on or affecting the Property, together with all security therefor and all monies payable
thereunder, subject to the conditional permission hereinabove given to Mortgagor to collect the rentals under any
such lease. Mortgagor shall also execute and deliver to Agent any notification, financing statement or other
document reasonably required by Agent to perfect the foregoing assignment as to any such lease.
1.11 Agent's Performance of Defaults. If Mortgagor defaults in the payment of any tax, assessment,
encumbrance or other imposition, in its obligation to furnish insurance hereunder, or in the performance or
observance of any other covenant, condition or term in this Mortgage or the Loan Documents, Agent may (after the
expiration of any applicable cure periods specifically provided for in the Loan Documents), to preserve its
interest in the Property, perform or observe the same, and all payments made (whether such payments are regular
or accelerated payments) and costs and expenses incurred or paid by Agent in connection therewith shall become
due and payable immediately. The amounts so incurred or paid by Agent together with interest thereon from the
date incurred until paid by Mortgagor, shall be added to the Obligations and secured by the lien of this
Mortgage. Agent is hereby empowered to enter and authorize others to enter upon the Property or any part thereof
for the purpose of performing or observing any such defaulted covenant, condition or term, without thereby
becoming liable to Mortgagor or any person in possession holding under Mortgagor.
1.12 Use of Property. Mortgagor covenants that the Property will be used for the purposes set forth
in Exhibit C.
1.13 Required Notices. Mortgagor shall notify Agent promptly of the occurrence of any of the
following: (i) receipt of notice from any governmental authority relating to the Property; (ii) receipt of a
notice from any tenant leasing all or any portion of the Property; (iii) any change in the occupancy of the
Property; (iv) receipt of any notice from the holder of any other lien or security interest in the Property; or
(v) commencement of any judicial or administrative proceedings by or against or otherwise affecting the Property.
1.14 Future Advances. This Mortgage is given to secure not only existing Obligations, but also such
future advances, whether such advances are obligatory or are to be made at the option of Agent and Lenders, or
otherwise, as are made within twenty (20) years from the date hereof, to the same extent as if such future
advances were made on the date of the execution of this Mortgage, provided that such future advances are
evidenced by promissory notes, guarantees or other written agreements which make express reference to this
Mortgage and which expressly state that such future advances are secured by this Mortgage. The total amount of
indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid principal
balance so secured at one time shall not exceed $19,800,000, plus interest thereon, and any disbursements made
for the payment of taxes, levies or insurance on the Property, with interest on such disbursements.
ARTICLE TWO
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DEFAULTS
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2.01 Event of Default. The term "Event of Default", wherever used in this Mortgage, shall have the
meaning ascribed to such term in the Loan Agreement.
ARTICLE THREE
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REMEDIES
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3.01 Acceleration of Maturity. If an Event of Default shall have occurred, then all of the
Obligations secured hereby shall, at Agent's option, immediately become due and payable without notice or demand,
time being of the essence hereof; and no omission on the part of Agent to exercise such option when entitled to
do so shall be construed as a waiver of such right.
3.02 Agent's Power of Enforcement. If an Event of Default shall have occurred, Agent may, either
with or without entry or taking possession as hereinabove provided or otherwise, and without regard to whether or
not the Obligations shall be due and without prejudice to the right of Agent thereafter to bring an action of
foreclosure or any other action for any default existing at the time such earlier action was commenced, proceed
by any appropriate action or proceeding: (a) to enforce payment of the Obligations or the performance of any term
hereof or any other right; (b) to foreclose this Mortgage and to sell, as an entirety or in separate lots or
parcels, the Property under the power of sale hereinafter provided or the judgment or decree of a court or courts
of competent jurisdiction; and (c) to pursue any other remedy available to it. Agent shall take action either by
such proceedings or by the exercise of its powers with respect to entry or taking possession, or both, as Agent
may determine.
3.03 Agent's Right to Enter and Take Possession, Operate and Apply Income.
(a) If an Event of Default shall have occurred, (i) the Mortgagor upon demand of Agent
shall forthwith surrender to Agent the actual possession and if and to the extent permitted by law, Agent itself,
or by such officers or agents as it may appoint, may enter upon and take possession of the Property and may
exclude Mortgagor and its agents and employees wholly therefrom and may have joint access with Mortgagor to the
books, papers and accounts of Mortgagor; and (ii) Mortgagor will pay monthly in advance to Agent on Agent's entry
into possession, or to any receiver appointed to collect the rents, income and other benefits of the Property,
the fair and reasonable rental value for the use and occupation of such part of the Property as may be in
possession of Mortgagor, and upon default in any such payment will vacate and surrender possession of such part
of the Property to Agent or to such receiver and, in default thereof, Mortgagor may be evicted by summary
proceedings or otherwise.
(b) If Mortgagor shall for any reason fail to surrender or deliver the Property or any
part thereof after Agent's demand, Agent may obtain a judgment or decree conferring on Agent the right to
immediate possession or requiring Mortgagor to deliver immediate possession of all or part of the Property to
Agent, to the entry of which judgment or decree Mortgagor hereby specifically consents. Mortgagor shall pay to
Agent, upon demand, all costs and expenses of obtaining such judgment or decree and compensation to Agent, its
attorneys and agents, and all such costs, expenses and compensation shall, until paid, be secured by the lien of
this Mortgage.
(c) Upon every such entering upon or taking of possession, Agent may hold, store, use,
operate, manage and control the Property and conduct the business thereof, and, from time to time:
(i) Make all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property;
(ii) Insure or keep the Property insured;
(iii) Manage and operate the Property and exercise all the rights and powers of
Mortgagor in its name or otherwise with respect to the same;
(v) Enter into agreements with others to exercise the powers herein granted Agent,
all as Agent from time to time may determine; and Agent may collect and receive all the rents, income
and other benefits thereof, including those past due as well as those accruing thereafter; and shall
apply the monies so received by Agent in such priority as Agent may determine to (1) the payment of the
Obligations; (2) the deposits for taxes and assessments and insurance premiums due; (3) the cost of
insurance, taxes, assessments and proper charges upon the Property or any part thereof; (4) expenses of
operating, maintaining, repairing and improving the Property, including without limitation renting
commissions paid to an agent of Agent or of the receiver; and (5) the compensation expenses and
disbursements of the agents, attorneys and other representatives of Agent. All costs, expenses and
liabilities of every character incurred by Agent in managing, operating and maintaining the Property,
not paid out of rent as hereinabove provided, shall constitute additional Obligations secured hereby.
While in possession of the Property, Agent or the receiver shall be liable to account only for the
rents, issues and profits actually received.
Agent shall surrender possession of the Property to Mortgagor only when all Obligations secured hereby
and all amounts under any of the terms of this Mortgage shall have been paid and all defaults made good. The
same right of taking possession, however, shall exist if any subsequent Event of Default shall occur and be
continuing.
3.04 Foreclosure. If an Event of Default shall have occurred, regardless of whether Agent has declared
the Obligations secured hereby to be immediately due and payable, Agent may, in any combination, foreclose this
Mortgage and take such other action as the law allows to enforce this Mortgage, to realize upon the security
hereof and to enforce any or all of the Loan Documents. In any such foreclosure proceeding, the Property may be
sold in one or more parcels, at Agent's option, and without obligation to have the Property marshalled. The
proceeds of any such sale (or sales) shall be applied as follows:
FIRST, to the payment of all necessary costs and expenses incident to such foreclosure sale,
including but not limited to all court costs and charges of every character in the event foreclosed by
suit, and reasonable attorneys fees;
SECOND, to the payment in full of the Obligations secured as provided in Section 12.3 of the
Loan Agreement;
THIRD, to discharge junior liens, if the Court so directs; and
FOURTH, the remainder, if any there shall be, shall be paid to Mortgagor or to Mortgagor's
successors or assigns.
In the event there is a foreclosure sale hereunder and at the time of such sale the Mortgagor or the Mortgagor's
successors or assigns are occupying the Property, or any part thereof, each and all shall immediately become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy at sufferance, terminable at will of
either landlord or tenant, at a reasonable rental based upon the value of the property occupied, such rental to
be due to the purchaser. An action of unlawful detainer shall lie if the tenant holds over after a demand in
writing for possession of said property and premises.
3.05 Leases. Agent, at its option, is authorized to foreclose this Mortgage subject to the rights
of any tenants of the Property, and the 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 Mortgagor to be, a defense
to any proceedings instituted by Agent to collect the sums secured hereby or to collect any deficiency remaining
unpaid after the foreclosure sale of the Property. Unless otherwise agreed by Agent in writing, all leases and
tenancies of the Property executed subsequent to the date hereof, or any part thereof, shall be subordinate and
inferior to the lien of this Mortgage, except that from time to time Agent may execute and record among the land
records of the jurisdiction where this Mortgage is recorded, subordination statements with respect to such of
said leases as Agent may designate, whereby the leases so designated by Agent will be superior to the lien of
this Mortgage. From and after the recordation of such subordination statements, the leases therein referred to
shall be superior to the lien of this Mortgage and shall not be affected by any foreclosure hereof. All such
leases and tenancies shall contain a provision to the effect that the tenant recognizes the right of Agent to
effect such subordination of this Mortgage and consents thereto.
3.06 Purchase by Agent. Upon any sale held by Agent or by any receiver or public officer, Agent may
bid for and purchase the Property for the benefit of Lenders and, upon compliance with the terms of sale, may
hold, retain and possess and dispose of the Property in its own absolute right for the benefit of Lenders without
further accountability.
3.07 Application of Obligations Toward Purchase Price. Upon any such sale, Agent may, if permitted
by law, and after allowing for costs and expenses of the sale, compensation and other charges, in paying the
purchase price, apply any portion or all of the Obligations due to Agent and Lenders under the Loan Documents, in
lieu of cash, to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon,
to the extent of the purchase price.
3.08 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. Mortgagor agrees to
the full extent permitted by law that in case of a default in its part hereunder, neither Mortgagor nor anyone
claiming through or under it shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay of execution, notice of election to mature or declare due the whole of the Obligations secured
hereby, extension of redemption laws now or hereafter in force, in order to prevent or hinder the enforcement or
foreclosure of this Mortgage or the absolute sale of the Property or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereat, and Mortgagor, for itself and all who
may at any time claim through or under it, hereby waives, to the full extent that it may lawfully so do, the
benefit of all such laws, and any and all right to have the assets comprising the Property marshaled upon any
foreclosure of the lien hereof and agrees that Agent or any court having jurisdiction to foreclose such lien may
sell the Property in part or as an entirety. If any law referred to in this paragraph and now in force, of which
Mortgagor, its successors and assigns, might take advantage despite this paragraph, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed to preclude the application of this paragraph.
Without limiting the foregoing, Mortgagor hereby waives all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on its own behalf and all persons beneficially interested in the Property
and each and every person except decree and judgment creditors of Mortgagor (in its representative capacity), who
may acquire any interest in or title to the Property subsequent to the date thereof.
3.09 Receiver. If an Event of Default shall have occurred, Agent, to the extent permitted by law and
without regard to the value or adequacy of the security for the Obligations secured hereby, shall be entitled as
a matter of right if it so elects to the appointment of a receiver to enter upon and take possession of the
Property and to collect all rents, income and other benefits thereof and apply the same as the court may direct,
and any such receiver shall be entitled to hold, store, use, operate, manage and control the Property and conduct
the business thereof as would Agent pursuant to Paragraph 3.03(c) above. The expenses, including receiver's
fees, attorney's fees, costs and agent's compensation, incurred pursuant to the powers herein contained shall be
secured by this Mortgage. The right to enter and take possession of and to manage and operate the Property and
to collect all rents, income and other benefits thereof, whether by a receiver or otherwise, shall be cumulative
to any other right or remedy hereunder or afforded by law and may be exercised concurrently therewith or
independently thereof. Agent shall be liable to account only for such rents, income and other benefits actually
received by Agent, whether received pursuant to this paragraph or paragraph 3.03. Notwithstanding the
appointment of any receiver or other custodian, Agent shall be entitled as pledgee to the possession and control
of any cash, deposits, or instruments at the time held by, or payable or deliverable under the terms of this
Mortgage to, Agent.
3.10 Suits to Protect the Property. Agent shall have the power and authority to institute and
maintain any suits and proceedings as Agent may deem advisable (a) to prevent any impairment of the Property by
any acts which may be unlawful or any violation of this Mortgage, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any legislation or other government
enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement or compliance with
such enactment, rule or order might impair the security hereunder or be prejudicial to Agent's interest.
3.11 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings affecting Mortgagor or its creditors or its
property, Agent, 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 claims allowed in such proceedings for the entire
amount due and payable by Mortgagor under this Mortgage, the Loan Agreement and any other instrument securing the
Obligations at the date of the institution of such proceedings, and for any additional amounts which may become
due and payable by Mortgagor after such date.
3.12 Application of Monies by Agent.
(a) Upon the occurrence of an Event of Default, Agent shall be entitled to xxx for and to
recover judgment against the Mortgagor for the whole amount of the Obligations due and unpaid together with costs
and expenses, including without limitation, the reasonable compensation, expenses and disbursements of Agent's
agents, attorneys and other representatives, either before, after or during the pendency of any proceedings for
the enforcement of this Mortgage, and the right of Agent to recover such judgment shall not be affected by any
taking possession or foreclosure sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the terms of this Mortgage, or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the Property and the application
of the proceeds of sale to the payment of the Obligations secured hereby, Agent shall be entitled to enforce
payment from Mortgagor of all Obligations then remaining due and unpaid and to recover judgment against Mortgagor
for any portion thereof remaining unpaid, with interest.
(c) Mortgagor hereby agrees, to the extent permitted by law, that no recovery of any such
judgment by Agent and no attachment or levy of any execution upon any of the Property or any other property shall
in any way affect the lien of this Mortgage upon the Property or any part thereof or any lien, rights, powers or
remedies of Agent hereunder, but such lien, rights, powers and remedies shall continue unimpaired as before.
(d) Any monies collected or received by Agent under this paragraph 3.12 shall be applied
to the payment of compensation, expenses and disbursements of the agents, attorneys and other representatives of
Agent, and the balance remaining shall be applied to the payment of the Obligations secured hereby.
3.13 Delay or Omission; No Waiver. No delay or omission of Agent to exercise any right, power or
remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy or shall be
construed to waive any such Event of Default or to constitute acquiescence therein. Every right, power and
remedy given to Agent may be exercised from time to time and as often as may be deemed expedient by Agent.
3.14 No Waiver of One Default to Affect Another. 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. If Agent (a) grants forbearance or an extension of time for the payment of any
Obligations secured hereby; (b) takes other or additional security for the payment thereof; (c) waives or does
not exercise any right granted in the Loan Agreement; (d) releases any part of the Property from the lien of this
Mortgage; (e) consents to the filing of any map, plat or replat of the Land; (f) consents to the granting of any
easement on the Land; or (g) makes or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall release, discharge, modify, change or
affect the Obligations of Mortgagor. No such act or omission shall preclude Agent from exercising any right,
power or privilege herein granted or intended to be granted in case of any Event of Default then existing or of
any subsequent Event of Default nor shall the lien of this Mortgage be altered hereby, except to the extent of
releases as described in subparagraph (d) above of this paragraph 3.14.
3.15 Discontinuance of Proceedings; Position of Parties Restored. If Agent shall have proceeded to
enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise and such proceedings shall
have been discontinued or abandoned for any reason, or such proceedings shall have resulted in a final
determination adverse to Agent, then and in every such case Mortgagor and Agent shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Agent shall continue as if no such
proceedings had occurred or had been taken.
3.16 Remedies Cumulative. No right, power or remedy conferred upon or reserved to Agent by the Loan
Documents is exclusive of any other right, power or remedy, but each and every such right, power and remedy shall
be cumulative and concurrent and shall be in addition to any other right, power and remedy given under the Loan
Documents, or now or hereafter existing at law, in equity or by statute.
ARTICLE FOUR
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TRANSFER OR FURTHER ENCUMBRANCE OF THE PROPERTY
-----------------------------------------------
4.01 Transfer or Further Encumbrance of the Property. Except as may be permitted by the Loan
Agreement, in the event of any sale, conveyance, transfer, lease, pledge or further encumbrance of the Property
or any interest in or any part of the Property, or any further assignment of rents from the Property without the
prior written consent of Agent then, at Agent's option, Agent may declare all Obligations of Mortgagor to be due
and payable immediately without demand or notice. Agent's consent shall be within its sole and absolute
discretion, and Agent specifically reserves the right to condition its consent upon (by way of illustration but
not of limitation) its approval of the financial management ability of the purchaser, transferee, lessee, pledgee
or assignee, upon an agreement to escalate the interest rate on the Obligations to Agent's then current interest
rate for similarly situated properties, upon the assumption of the Obligations and this Mortgage by the
purchaser, transferee, lessee, pledgee or assignee, upon the receipt of guaranties of the indebtedness
satisfactory to Agent or upon payment to Agent for the benefit of Lenders of a reasonable assumption fee. Any
purchaser, transferee, lessee, pledgee or assignee shall be deemed to have assumed and agreed to pay the
Obligations secured by this Mortgage and to have assumed and agreed to be bound by the terms and conditions of
this Mortgage, including the terms of this paragraph, unless Agent specifically agrees in writing to the
contrary. Mortgagor agrees that in the event the ownership of the Property or any part thereof becomes vested in
a person other than Mortgagor, Agent may, without notice to Mortgagor, deal in any way with such successor or
successors in interest with reference to this Mortgage and the Obligations hereby secured without in any way
vitiating or discharging the Mortgagor's liability hereunder or under the Loan Documents. No transfer or
encumbrance of the Property or any interest therein and no forbearance or assumption by any person with respect
to this Mortgage and no extension to any person of the time for payment of the Obligations hereby secured given
by Agent shall operate to release, discharge, modify, change or affect the liability of Mortgagor either in whole
or in part, unless Agent specifically agrees in writing to the contrary.
ARTICLE FIVE
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MISCELLANEOUS PROVISIONS
------------------------
5.01 Successors and Assigns Included in Parties. Whenever one of the parties hereto is named or
referred to herein, the successors and assigns of such party shall be included and all covenants and agreements
contained in this Mortgage, by or on behalf of Mortgagor or Agent shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed or not.
5.02 Addresses for Notices, Etc.
(a) Any notice, report, demand or other instrument authorized or required to be given or
furnished under this Mortgage to the Mortgagor or Agent shall be given or furnished in the same manner and
pursuant to the same limitations as provided in the Loan Agreement.
(b) Either party may change the address to which any such notice, report, demand or other
instrument is to be delivered or mailed, by furnishing written notice of such change to the other party, but no
such notice of change shall be effective unless and until received by such other party.
5.03 Headings. The headings of the articles, sections, paragraphs and subdivisions of this Mortgage
are for convenience of reference only, are not to be considered a part hereof, and shall not limit or expand or
otherwise affect any of the terms hereof.
5.04 Invalid Provisions to Affect No Others. In the event that any of the covenants, agreements,
terms or provisions contained in the Loan Documents shall be deemed invalid, illegal or unenforceable in any
respect, the validity of the remaining covenants, agreements, terms or provisions contained in the Loan Documents
shall be in no way affected, prejudiced or disturbed thereby; and if any application of any term, restriction or
covenant to any person or circumstances is deemed illegal or unenforceable, the application of such term,
restriction or covenant to other persons and circumstances shall remain unaffected to the extent permitted by law.
5.05 Changes, Etc. Neither this Mortgage nor any term hereof may be changed, waived, discharged or
terminated orally, or by any action or inaction, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is sought. The modification hereof or
of any of the Loan Documents or the release of any part of the Property from the lien hereof shall not impair the
priority of the lien of this Mortgage.
5.06 Governing Law. Notwithstanding anything contained in Section 15.15 of the Loan Agreement to
the contrary, this Mortgage shall be construed, interpreted, enforced and governed by and in accordance with the
laws of the State of Florida.
5.07 Waivers. MORTGAGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREUNDER, AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE, AND CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING CONTAINED HEREIN SHALL AFFECT
THE RIGHT OF AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF AGENT TO
BRING ANY ACTION OR PROCEEDING AGAINST MORTGAGOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
5.08 Conflict of Terms. Except as otherwise provided in the Loan Agreement and except as otherwise
provided in this Mortgage by specific reference to the applicable provisions of the Loan Agreement, if any
provision contained in this Mortgage is in conflict with, or inconsistent with, any provision of the Loan
Agreement, the provision contained in the Loan Agreement shall govern and control.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed under seal by its duly
authorized officers on the day and year first above written.
Signed, Sealed and Delivered TROPICAL SPORTSWEAR INT'L
In the Presence of CORPORATION
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxx
(Type or Print Name) Title: Executive Vice President, Chief Financial Officer
and Treasurer
/s/ Xxxxx X. Xxxxxxxx [CORPORATE SEAL]
Name: Xxxxx X. Xxxxxxxx
(Type or Print Name)
Address of Mortgagor:
Tropical Sportswear Int'l Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
STATE OF NORTH CAROLINA
COUNTY OF
The foregoing Mortgage and Security Agreement was acknowledged before me this 17TH day of June, 2004, by
Xxxxx X. Xxxxx as Executive Vice President, Chief Financial Officer and Treasurer of TROPICAL SPORTSWEAR INT'L
CORPORATION, a Florida corporation, on behalf of the corporation. He is personally known to me or has produced
his driver's license as identification and did take an oath.
Given under my hand and notarial seal this 17th day of June, 2004.
/s/ Xxxxx X. Xxxxxxx
Notary Public
Xxxxx X. Xxxxxxx
(Print, Type or Stamp Name)
My commission expires: 8/1/07
EXHIBIT A
TO
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
Legal Description
-----------------
PARCEL 1: The part of Xxxxx 0, Xxxxx Xxxx Xxxxxxxxxx Xxxx Phase I, as recorded in Plat Book 46, Page 29, of
the Public Records of Hillsborough County, Florida, being described as follows:
Commence at the Northwest corner of said Tract 7; Thence South 00 degrees 35 minutes 43 seconds West along
the West boundary of said Tract 7, a distance of 40.23 feet to a point on the North boundary of Railroad
Easement as recorded in Official Records Book 3590, Page 1097, of the Public Records of Hillsborough County,
Florida, and the Point of Beginning; Thence along said North boundary of Railroad Easement South 89 degrees
24 minutes 17 seconds East a distance of 148.86 feet to a point of curvature; Run thence along the arc of a
curve subtended by a chord to the right (radius - 456.68 feet) a distance of 434.78 feet (chord 418.54 feet,
chord bearing South 62 degrees 07 minutes 50 seconds East) to a point on the West right-of-way boundary of
the Seaboard Coastline Railroad, said point also being on the East boundary line of said Tract 7, as shown
on said Tampa West Industrial Park Phase I; Thence South 00 degrees 35 minutes 43 seconds West, along said
West boundary of railroad, being the East boundary of said Tract 7, 728.25 feet, to a point of intersection
with the South boundary of Railroad Easement as recorded in Official Records Book 3590, Page 1094, of the
Public Records of Hillsborough County, Florida; Thence along said South boundary, Northwesterly along the arc
of a curve subtended by a chord to the left (radius 426.68 feet) a distance of 398.52 feet (chord 384.19 feet
chord bearing North 55 degrees 29 minutes 41 seconds West) to a point of tangency; Run thence North 82
degrees 15 minutes 06 seconds West a distance of 29.06 feet; Run thence North 89 degrees 24 minutes 17
seconds West a distance of 173.22 feet to a point on the West boundary of said Tract 7; Thence leave said
South boundary of Railroad Easement, North 00 degrees 35 minutes 43 seconds East along said West boundary
70.05 feet; Thence leave said West boundary South 89 degrees 42 minutes 30 seconds East 200.00 feet; Thence
North 00 degrees 35 minutes 43 seconds East 474.45 feet; Thence North 89 degrees 42 minutes 30 seconds West
200.00 feet to a point of aforementioned West boundary line of Tract 7; Thence North 00 degrees 35 minutes 43
seconds East along said West boundary 157.51 feet, to the Point of Beginning.
TOGETHER WITH:
PARCEL A: The East 165 feet of Xxxxx 0, Xxxxx Xxxx Xxxxxxxxxx Xxxx Phase I, as recorded in Plat Book 46, Page
29, of the Public Records of Hillsborough County, Florida, Less that part in use as a right-of-way for Waters
Avenue (S.R. 584-State Project 1077-250).
TOGETHER WITH:
PARCEL B: That part of Xxxxx 0, Xxxxx Xxxx Xxxxxxxxxx Xxxx Phase I, as recorded in Plat Book 46, Page 29, of
the Public Records of Hillsborough County, Florida, lying North of the Private Railroad Easement as recorded
in Official Records Book 3590, Page 1097.
TOGETHER WITH:
PARCEL C: That part of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 18 East, Hillsborough
County, Florida, described as follows:
From the Northeast corner of the Northwest 1/4 of Section 29, Township 28 South, Range 18 East run South 89
degrees 40 minutes 29 seconds West 150.00 feet to the West right-of-way line of the Seaboard Coast Line
railroad; Thence South 00 degrees 01 minutes 01 seconds East 48.30 feet to the South right-of-way line of
Waters Avenue for a Point of Beginning; Thence South 00 degrees 01 minutes 01 seconds East 962.00 feet;
Thence South 89 degrees 40 minutes 29 seconds West 522.00 feet; Thence North 00 degrees 01 minutes 01 seconds
West 962 feet to the South right-of-way line of Waters Avenue; Thence North 89 degrees 41 minutes 18 seconds
East, 522.00 feet to the Point of Beginning, Less that part conveyed to Hillsborough County, a political
subdivision of the State of Florida, by Land Trust Agreement Deed recorded October 7, 1987, in Official
Records Book 5242, Page 497, of the Public Records of Hillsborough County, Florida. Said Less Out more
particularly described as follows: Commence at the Southwest corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx
18 East; Thence North 00 degrees 48 minutes 28 seconds East, along the West boundary of said Section 20, 7.54
feet to the centerline of survey of Waters Avenue (State Project 1077-250); Thence South 89 degrees 24
minutes 46 seconds East, along the said centerline 354.77 feet to the PI Station 193+01.14; Thence continue
along said centerline South 89 degrees 29 minutes 07 seconds East, 1,625.42 feet; Thence South 00 degrees 48
minutes 34 seconds West 55.00 feet to the intersection of the South right-of-way line of Waters Avenue and
the East boundary of Tract 1 of Tampa West Industrial Park Phase I, as recorded in Plat Book 46, Page 29, of
the Public Records of Hillsborough County, Florida, and the Point of Beginning; Thence continue South 00
degrees 48 minutes 34 seconds West, along said East boundary of Tract 1, 20.16 feet to the point of curvature
of a non-tangent circular curve concave to the North; Thence along the arc of said curve having a radius of
100,145.13 feet, a central angle of 00 degrees 04 minutes 14 seconds, an arc distance of 123.13 feet, the
chord for which bears South 89 degrees 01 minutes 08 seconds East, a chord distance of 123.13 feet to the end
of said curve; Thence North 00 degrees 56 minutes 45 seconds East, (radial), 2.00 feet to the point of
curvature of a tangent circular curve concave to the North; Thence along the arc of said curve having a
radius of 100,143.13 feet, a central angle of 00 degrees 13 minutes 42 seconds an arc distance of 398.86
feet, the chord which bears South 89 degrees 10 minutes 06 seconds East, a chord distance of 398.86 feet to
the West right-of-way line of the Seaboard System Railroad and the end of said curve; Thence North 00 degrees
48 minutes 34 seconds East, along said West right-of-way line, 21.37 feet to the South right-of-way line of
Waters Avenue; Thence North 89 degrees 29 minutes 07 seconds West, along said right-of-way line 522.00 feet
to the point of beginning.
TOGETHER WITH:
PARCEL D: The West 285.00 feet of the East 450.00 feet of Xxxxx 0, Xxxxx Xxxx Xxxxxxxxxx Xxxx Phase I, as
recorded in Plat Book 46, Page 29, of the Public Records of Hillsborough County, Florida.
Less that part taken for road right-of-way by Hillsborough County, Project No. 85-33-R (Phase I).
And also Less and Except:
A portion of Tract 1 as shown on Tampa West Industrial Park Phase 1, as recorded in Plat Book 46, Page 29,
Sheets 1 through 4, of the Public Records of Hillsborough County, Florida more particularly described as
follows:
Commence at a point on the North right-of-way line of Xxxxxxxx Circle, being on the South line of said Tract
1, said point being a concrete monument on the west end of the South line of said Tract 1; thence S.
89(degree)18'04" E., along the North right-of-way line of Xxxxxxxx Circle, 259.27 feet to a point on the West
line of the East 450.00 feet of said Tract 1; thence leaving said North right -of-way line of Xxxxxxxx Circle,
along the said West line of the East 450.00 feet of Tract 1, N. 00(degree)35'43" E., 206.62 feet to the
intersection of the West line of the East 450.00 feet of Tract 1 and the South Face of an existing Masonry
Building #1, for the POINT OF BEGINNING; thence continue along said West line of the East 450.00 feet of
Tract 1, through two Masonry Buildings, N. 00(degree)35'43" E., 109.38 feet to the intersection of the said
West line of the East 450.00 feet of Tract 1, and the North Face of an existing Masonry Building #2; thence S.
89(degree)12'53" E., 2.68 feet to the Northeast corner of said Masonry Building #2; thence S.
00(degree)30'47" W., 109.38 feet along the face of two said Masonry Buildings, to the Southeast corner of said
Masonry Building #1; thence along the South Face of said Xxxxxxx Xxxxxxxx #0, X. 00(xxxxxx)00'00" W., 2.84
feet to the POINT OF BEGINNING.
EXHIBIT B
TO
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
Permitted Exceptions
--------------------
All of those exceptions to title in respect of the Property that are contained in Schedule B of a certain
policy of title insurance issued by Chicago Title Insurance Company to Agent dated on or about the date hereof
issued pursuant to Commitment No. 630400387.
EXHIBIT C
TO
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
Use of Property
---------------
The Property shall be used for industrial and commercial purposes, including, but not limited to, the operation
on the Property of Mortgagor's business which is the manufacture,cutting, distribution and sale of apparel with
associated administrative offices, and to lease space to a hair salon and for any other use allowed under
applicable governmental regulations.
Improvements to Property
------------------------
Administrative offices, cutting facility, distribution facility, retail store, parking lots and hair salon.
Leases
------
That certain lease to operate a hair salon on the Property for less than $12,000.00 per annum in rental
payments.