EXHIBIT 10.26
Xxxxxx X. Xxxxx, P.A.
Steel Xxxxxx &
Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
CONSOLIDATED, AMENDED AND RESTATED
FLORIDA MORTGAGE AND SECURITY AGREEMENT
THIS CONSOLIDATED, AMENDED AND RESTATED FLORIDA
MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), made and entered
into as of this 13 day of August, 1996, by and between Orange-Co of
Florida, Inc., a Florida corporation having a mailing address at 0000 X.X.
Xxxxxxx 00 Xxxxx, Xxxxxx, Xxxxxxx 00000, hereinafter referred to as the
"Mortgagor," which term shall be construed to include the successors and
assigns of the Mortgagor, all of whom shall be bound hereby, and Xxxx
Xxxxxxx Mutual Life Insurance Company, a Massachusetts corporation,
having an address of X.X. Xxx 000, Xxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, hereinafter referred to as the "Mortgagee," and the
successors and assigns of the Mortgagee.
WITNESSETH:
WHEREAS, the Mortgagee is presently the owner and holder of the
following described instruments, as well as other loan documents executed
in connection with a mortgage loan (the "Loan Documents") which encumbers
certain personal property and real property situate in Polk County, Florida,
to wit:
1. That certain Renewal Promissory Note dated November 8, 1979,
representing an indebtedness in the original principal amount of SIXTEEN
MILLION THREE HUNDRED
Nota Bene: State of Florida Documentary Stamp Tax in the amount required
by law has been paid and the documentary stamps obtained upon
such payment have been affixed to that certain Loan
Modification Agreement, Notice of Advance and Restated
Florida Mortgage and Security Agreement dated the 8th day of
November, 1979 and recorded in Official Records Book 1911,
Page 1040, and that certain Future Advance Agreement dated as of
April 21, 1993 and recorded in Official Records Book 3226, Page
971, all as recorded in the Public Records of Polk County,
Florida, as well as that certain Florida Second Mortgage and
Security Agreement of even date herewith given by the Borrower
to Xxxx Xxxxxxx, recorded or to be recorded in the Public
Records of Polk County, Florida.
THOUSAND AND NO/100 DOLLARS ($16,300,000.00), which was collateralized by
that certain Loan Modification Agreement, Notice of Advance and Restated
Florida Mortgage and Security Agreement entered into by and between
Mortgagor and Mortgagee as of the 8th day of November, 1979 and recorded in
Official Records Book 1911, Page 1040, Public Records of Polk County, Florida
and Amended and Restated pursuant to that certain Amended and Restated
Florida Mortgage & Security Agreement and Spreader Agreement entered into
by and between Mortgagor and Mortgagee as of the 21st day of April, 1993 and
recorded in Official Records Book 3226, Page 937, Public Records of Polk
County, Florida (collectively, the "Amended and Restated Mortgage").
2. That certain Future Advance Promissory Note dated April 21, 1993,
executed by Mortgagor in favor of Mortgagee in the original principal amount
of EIGHT MILLION SEVEN HUNDRED FORTY-THREE THOUSAND ONE HUNDRED NINETY-ONE
AND NO/100 DOLLARS ($8,743,191.00), which was collateralized by that certain
Future Advance Agreement entered into by and between Mortgagor and Mortgagee
as of the 21st day of April, 1993 and recorded in Official Records Book 3226,
Page 971 of the Public Records of Polk County, Florida (the "Future Advance
Agreement").
3. That certain Renewal Note (the "Renewal Note") dated as of April
21, 1993 and executed by Mortgagor in favor of Mortgagee in the original
amount of $12,000,000.00 which combines and renews that certain Renewal
Promissory Note given by Mortgagor to Mortgagee dated November 8, 1979 in
the original principal amount of $16,300,000.00 of which the unpaid principal
balance was $3,256,809.00 and the Future Advance Promissory Note dated as of
the 21st day of April, 1993, and given by Mortgagor to Mortgagee in the
principal amount of $8,743,191.00, which notes were collateralized by the
Amended and Restated Mortgage and the Future Advance Agreement.
4. That certain Promissory Note (the "Second Promissory Note") dated
August 13 , 1996, executed by Mortgagor in favor of Mortgagee in the original
principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), which
was collateralized by that certain Florida Second Mortgage and Security
Agreement (the"Second Mortgage") executed by Mortgagor in favor of
Mortgagee on August 13, 1996 and recorded under Clerk's File No.
__________________, Public Records of Polk County, Florida.
WHEREAS, the principal balance remaining under the Renewal Note is
EIGHT MILLION ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($8,100,000.00)
and the principal balance remaining unpaid on the Second Promissory Note is
TEN MILLION AND NO/100 DOLLARS ($10,000,000.00).
WHEREAS, Mortgagor has agreed to consolidate the Amended and Restated
Mortgage, the Future Advance Agreement and the Second Mortgage as well as to
modify and restate the terms and conditions of said documents, as set forth
in this Mortgage, and has agreed that the Renewal Note and the Second
Promissory Note are collateralized by this Mortgage.
NOW, THEREFORE, in consideration of the aforesaid premises, the mutual
benefits and the mutual promises of the parties hereto and other good and
valuable consideration, it is hereby agreed by the Mortgagor and Mortgagee
as follows:
KNOW ALL MEN BY THESE PRESENTS, that Mortgagor does hereby grant,
bargain, sell, assign and convey to Mortgagee and Mortgagee s successors and
assigns
forever, the real estate more particularly described in Exhibit A attached
hereto and made a part hereto, together with all the buildings, structures,
offices, barns, tanks, and all other improvements of whatsoever kind and
nature, now or hereafter erected thereon and located in the County of Polk,
State of Florida, together with all and singular the easements, tenements,
hereditaments, appurtenances and other rights and privileges thereunto
belonging or in any wise now or hereafter appertaining, and the rents,
issues and profits thereof; together with all tangible personal property
and fixtures of Mortgagor whether now owned or in existence of hereafter
acquired or created,including goods (but excluding inventory), accessions,
machinery, equipment, farm products and fixtures, such terms having the
meaning ascribed by the Uniform Commercial Code, including, but not limited
to, all citrus crops now and hereafter growing on the real estate described
on Exhibit A attached hereto and made a part hereof (provided that the
Mortgagee s interest as a first lienor on such citrus crops shall remain in
effect until such time as such citrus crops are harvested, processed or
packed, and thereafter the lien evidenced hereby shall be deemed to be
released and provided further that all of Mortgagor s existing and future
inventories of citrus products are specifically excluded from the lien of
this Mortgage), all minerals or the like (including oil and gas) now and
hereafter situate in, under or on the real estate described on Exhibit A
attached hereto and made a part hereof or extracted therefrom, and all
apparatus, chattels, fixtures, machinery, furniture, furnishings,
installations, equipment and other property (provided that all grove
caretaking and harvesting equipment including, but not limited to,
non-permanent irrigation equipment not necessary for proper irrigation
and care of the real estate described on Exhibit A attached hereto and
made a part hereof, sprayers, tractors, trucks, trailers, hedging and
topping equipment and movable grove caretaking and harvesting equipment of
like nature are specifically excluded from the lien of this Mortgage) now
or hereafter attached to or used or procured for use in connection with the
operation and maintenance of a citrus concentrate plant situate on the
real estate described on Exhibit A attached hereto and made a part hereof
or in connection with the operation, maintenance or protection of any
buildings, structures, offices, barns, tanks and all other improvements of
whatsoever kind and nature, whether real or personal, whether now owned or
hereafter acquired, and whether or not attached to any building, structure,
office, barn, tank, or any other improvements of whatsoever kind and nature,
and all elevators, escalators, vaults, safes, screens, awnings, storm
windows and doors, window blinds and shades, inlaid floor coverings,
shrubbery, plants, fences, gates, stoves, ranges, sinks, drinking fountains,
ventilating, refrigerating, air conditioning, incinerating, dishwashing and
cleaning equipment, pipes, wires, irrigation and sprinkler systems
(including overhead or underground systems and all xxxxx, pumps, motors and
power units which are installed as part of same) and all apparatus associated
with the foregoing located on the real estate described on Exhibit A
attached hereto and made a part hereof, all of which shall be subject to the
lien of this Mortgage. To the extent permitted by law, the foregoing items
shall be considered part of the hereinabove described real estate.
TO HAVE AND TO HOLD said mortgaged premises, with all said tenements,
hereditaments, easements, appurtenances and other rights and privileges
thereunto belonging, or in any wise now or hereafter appertaining unto and
to the use of the Mortgagee, its successors and assigns, forever.
THE MORTGAGOR HEREBY COVENANTS AND AGREES:
1. The recitals set forth in the foregoing "WHEREAS" clauses are true
and correct and are hereby incorporated by reference and made a part hereof
as if fully set forth herein. This Mortgage is given as security for the
performance and observation of the covenants and agreements herein contained
and to secure to the Mortgagee the payment of the Renewal Note according to
its terms, the final payment of the entire indebtedness, including accrued
and unpaid interest, if any, being due and payable on May 1, 1998, unless
the term of the Renewal Note is extended pursuant to its terms and conditions
to May 1, 2003, as well as to secure to Mortgagee the payment of the
principal sum of Ten Million and No/100 Dollars ($10,000,000.00) and
interest thereon evidenced by the Mortgagor s Second Promissory Note,
payable according to its terms, to the order of the Mortgagee, the final
payment of the entire indebtedness, including accrued and unpaid interest,
if any, being due and payable on August 1, 2003. Immediately upon recording
this Mortgage among the Public Records of Polk County, Florida,
the lien of the Amended and Restated Mortgage, the Future Advance
Agreement and the Second Mortgage as consolidated, modified and restated
herein, is and shall be construed to constitute in law one first mortgage
lien on the real property described on Exhibit A attached hereto and made a
part hereof, as well as the improvements and personal property situate
thereon (as described above) securing the obligations set forth in the
Renewal Note and the Second Promissory Note, and although the Amended and
Restated Mortgage, the Future Advance Agreement and the Second Mortgage, as
consolidated, modified and restated herein, shall remain in full force and
effect as a lien and encumbrance in favor of the Mortgagee, henceforth the
recitations, terms, conditions, covenants, promises and provisions of this
Mortgage shall constitute the one first mortgage lien from Mortgagor to
Mortgagee encumbering the real property described on Exhibit A attached
hereto and made a part hereof, as well as the improvements and personal
property situate thereon (as described above), and the recitations, terms,
conditions, covenants, promises and provisions of this Mortgage shall
govern in the event of a conflict between the terms and conditions set
forth in this Mortgage and those set forth in the Amended and Restated
Mortgage, the Future Advance Agreement, the Second Mortgage and/or the
Renewal Note. Any default by the Mortgagor in the payment or performance
of the Renewal Note shall, at the option of Mortgagee, constitute a
default not only with respect to the Renewal Note and this Mortgage, but
also with respect to the Second Promissory Note, and any default by the
Mortgagor in the payment or performance of the Second Promissory Note
shall, at the option of Mortgagee, constitute a default not only with
respect to the Second Promissory Note and this Mortgage, but also with
respect to the Renewal Note, and, in any of such events, Mortgagee shall be
entitled to exercise all of the rights granted to Mortgagee in the event of
a default as set forth in the Renewal Note, the Second Promissory Note and
this Mortgage, as well as in law and/or in equity.
2. The Mortgagor is well and lawfully seized of the mortgaged
premises as a good and indefeasible estate in fee simple and has good right
and full power to sell and convey the same; that the mortgaged premises are
free and clear of all encumbrances, except this Mortgage (and other loan
documents consolidated, modified and restated herein), building and use
restrictions and easement of record, if any, zoning ordinances, if any,
and taxes and assessments not yet overdue; and that the Mortgagor will make
any further assurances of title that the Mortgagee may require and will
warrant and defend said mortgaged premises against all lawful claims
and demands whatsoever.
3. Mortgagor will pay the Renewal Note and the Second Promissory
Note (hereinafter sometimes collectively referred to as the "Notes") in
accordance with their terms and will perform and comply with all of the
terms and provisions thereof.
4. Mortgagor will keep protected and in good order, repair and
condition at all times the buildings and improvements (including fixtures)
now standing or hereafter erected or placed upon the mortgaged premises and
any and all appurtenances, apparatus and articles of personal property,
including, but not limited to, furniture, furnishings and equipment, now or
hereafter in or attached to or used in connection with said buildings or
improvements, promptly replacing any of the aforesaid which may become lost,
destroyed or unsuitable for use, and will keep insured the aforesaid real and
personal property and the interests and liabilities incident to the
ownership thereof, in manner, forms, companies, sums and length of terms
satisfactory to the Mortgagee, provided, however, that Federal Crop Insurance
shall not be required of the Mortgagor; that all insurance policies are to
be held by and, to the extent of its interests, are to be for the benefit
of and first payable in case of loss to the Mortgagee except as hereinafter
provided, and the Mortgagor shall deliver to the Mortgagee evidence of
continuing insurance coverage at least fifteen (15) days before the date any
existing policy expires. In the event of a casualty or loss as contemplated
herein for which insurance proceeds are recoverable under the policy or
policies of insurance to be kept by the Mortgagor, the amounts recoverable
shall be applied as follows:
(a) in events of casualty or loss for which the proceeds
recoverable are $50,000.00 or less, such proceeds may be collected solely
by the Mortgagor and used by the Mortgagor in any manner it deems fit and
proper, whether for restoration of the loss or casualty or otherwise;
(b) in events of casualty or loss for which the proceeds
recoverable are in excess of $50,000.00, but less than $500,000.00, and the
further event that the Mortgagor shall have, on or before the time of
collection of said proceeds, furnished to the Mortgagee evidence satisfactory
to the Mortgagee that such proceeds will and can be used to replace or
restore the lost or damaged property to a condition satisfactory to the
Mortgagee within nine (9) months from the date of the casualty or loss, then,
in such events, it shall be conclusively presumed that the Mortgagee has
agreed to the application and use of such proceeds for such replacement
and restoration and the other options of the Mortgagee regarding the
application of insurance proceeds (as set forth in subparagraph (c) below)
shall be unavailable to the Mortgagee, provided however, that in such
foregoing events the Mortgagor will remain obligated to actually apply such
proceeds to said replacement or restoration, and provided further that
should Mortgagor fail to provide Mortgagee with the aforementioned
satisfactory evidence of use of proceeds for replacement and restoration
purposes, then the Mortgagee's options regarding the application of
insurance proceeds recited in subparagraph (c) below shall remain fully
available to the Mortgagee;
(c) in events of casualty or loss for which the proceeds
recoverable are $500,000.00 or more, the proceeds collected may, at the
option of the Mortgagee, be used in any one or more of the following ways:
(1) applied against the indebtedness secured hereby, whether such
indebtedness then be matured or unmatured, (2) used to fulfill any of
the covenants contained herein as the Mortgagee may determine, (3) used
to replace or restore the property to a condition satisfactory to the
Mortgagee, or (4) released to the Mortgagor.
The Mortgagor expressly agrees that all amounts recoverable under any
policy or policies of insurance are hereby assigned to the Mortgagee and
both Mortgagor and Mortgagee expressly agree to the method and manner of
application of proceeds as set forth herein. Additionally, the Mortgagee
is hereby irrevocably appointed by the Mortgagor as attorney of the
Mortgagor to assign any policy in the event of the foreclosure of this
Mortgage or other extinguishment of the indebtedness secured hereby.
5. Mortgagor will pay before same become delinquent or any penalty
attaches thereto for non-payment, all taxes, assessments and charges of
every nature and to whomever assessed that may now or hereafter be levied
or assessed, or by reason of non-payment become a lien prior to this
Mortgage, upon the mortgaged premises or any part thereof, upon the rents,
issues, income or profits thereof, whether any or all of said taxes,
assessments or charges be levied directly or indirectly or as excise taxes
or as income taxes, and will thereupon submit to the Mortgagee such
evidence of the due and punctual payment of such taxes, etc., as the
Mortgagee may require. It is agreed by the Mortgagee and Mortgagor that
there shall be excepted from the foregoing requirement such taxes,
assessments and public charges the assessment or collection of which is being
contested by the Mortgagor, by appropriate legal proceedings, in good faith
and with due diligence, provided always however that the Mortgagee shall
retain the right, notwithstanding any contest which may be conducted by the
Mortgagor, to redeem the mortgaged premises or any part thereof from tax sale
without any obligation on the part of the Mortgagee to inquire into the
validity of such taxes, assessments and/or tax sales(the receipts of the
proper taxing officials being conclusive evidence of the validity and
amount thereof). The Mortgagor agrees that it shall give Mortgagee fifteen
(15) days' prior written notice of its intention to engage in such good
faith contests and shall bear all cost, expense and attorney fees involved
in such contest, including any costs incurred for same by the Mortgagee.
6. If Mortgagor shall neglect or refuse to keep in good repair and
condition the property referred to in paragraphs 4 and 7, to replace the
same as therein agreed, to maintain and pay the premiums for insurance which
may be required under paragraph 4 or to pay and discharge all taxes,
assessments and charges of every nature and to whomever assessed, as
provided for in paragraph 5, subject to the Mortgagor's right to bring
good faith contests as provided in said paragraph 5, the Mortgagee may, at
its election, cause such repairs or replacements to be made, obtain such
insurance or pay said taxes, assessments and charges and any amounts paid as
a result thereof, together with interest thereon at the rate of nine point
sixty-five per centum (9.65%) per annum from the date of payment, shall be
immediately due and payable by the Mortgagor to the Mortgagee, and until
paid shall be added to and become a part of the principal debt secured
hereby, and the same may be collected as a part of said principal debt in
any suit hereon or upon the Notes; or the Mortgagee, by the payment of any
tax assessment or charge, may, if it sees fit, be thereby subrogated to
the rights of the state, county, village and all political or governmental
subdivisions. No such advances shall be deemed to relieve the Mortgagor
from any default hereunder or impair any right to remedy consequent thereon,
and the exercise of the rights to make advances granted in this paragraph
shall be optional with the Mortgagee and not obligatory and the Mortgagee
shall not in any case be liable to the Mortgagor for a failure to exercise
any such right.
7. Mortgagor will keep the mortgaged premises in good order and
repair and will not commit or suffer any waste or stripping of the mortgaged
premises or any violation of any law, regulation, ordinance or contract
affecting the mortgaged premises and will not commit or suffer any
demolition, removal or material alteration of any of the buildings or
improvements (including fixtures) on the mortgaged premises without the
prior written consent of the Mortgagee. The Mortgagor shall have the right,
after prior notice to the Mortgagee, to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of the Mortgagor,
without cost or expense to the Mortgagee, the validity or application of any
law, regulation, or ordinance of the nature herein referred to, subject to
the following:
(a) if by the terms of any such law, regulation or ordinance,
compliance therewith pending the prosecution of any such proceeding may
legally be delayed without the incurrence of any lien, charge or liability
of any kind against the mortgaged premises or the Mortgagor's ownership
interest therein, and without subjecting the Mortgagor or the Mortgagee to
any liability, civil or criminal, for failure so to comply, the Mortgagor,
provided it prosecutes any such proceeding with due diligence, may delay
compliance therewith until the final determination of such proceeding;
(b) if any lien, charge or civil liability would be incurred by
reason of any such delay, as provided above in subparagraph (a), the
Mortgagor may nevertheless, with the prior written consent of the Mortgagee,
contest and delay compliance with such law, regulation and ordinance as
provided in subparagraph (a), provided that such contest or delay would not
subject the Mortgagee to criminal liability and the Mortgagor furnishes to
the Mortgagee security, satisfactory to the Mortgagee, against any loss,
injury or liability by reason of such contest or delay, and prosecutes the
contest with due diligence. Upon giving the approvals required above, the
Mortgagee will execute and deliver any appropriate documents which may be
necessary or proper to permit the Mortgagor to contest the validity or
application of any such law, regulation or ordinance, provided however that
the Mortgagee shall not be required to execute and deliver any documents
which in the reasonable judgment of the Mortgagee may prejudice the
Mortgagee s interest in the mortgaged premises.
8. Mortgagor agrees that all awards heretofore or hereafter made by
any public or quasi-public authority to present and all subsequent owners of
the premises covered by this Mortgage by virtue of any exercise of the right
of eminent domain by such authority, including any award for a taking of
title, possession or right of access to a public way, or for any change of
grade of streets affecting said premises, are hereby assigned to the
Mortgagee; and the Mortgagee, at its option, is hereby authorized, directed
and empowered to collect and receive the proceeds of any such award and
awards from the authorities making the same and to give proper receipts and
acquittances therefor, and may, at the Mortgagee s election, use such
proceeds in any one or more of the following ways; (1) apply the same or
any part thereof against the indebtedness secured hereby, whether such
indebtedness then be matured or unmatured, (2) use the same or any part
thereof to fulfill any of the covenants contained herein as the Mortgagee
may determine, (3) use the same or any part thereof to replace or restore
the property to a condition satisfactory to the Mortgagee, or (4) release
the same to the Mortgagor; and the Mortgagor hereby covenants and agrees to
and with the Mortgagee, upon request by the Mortgagee, to make, execute and
delivery any and all assignments and other instruments sufficient for the
purpose of assigning all such awards to the Mortgagee free, clear and
discharged of any and all encumbrances of any kind or nature whatsoever.
9. Mortgagor will deliver to the Mortgagee, in detail satisfactory
to the Mortgagee, and within ninety (90) days after the expiration of each
fiscal year, audited financial statements and related certificates and
financial data, all in accordance with paragraph 16 hereof.
10. That if any action or proceeding be commenced, excepting an action
to foreclose this Mortgage or to collect the debt hereby secured, to which
action or proceeding the Mortgagee is made a party by reason of the execution
of this Mortgage or the Notes which it secures, or in which it becomes
necessary to defend or uphold the lien of this Mortgage, all sums paid by
the Mortgagee for the expense of any litigation to prosecute or defend the
rights and lien created hereby including all court costs, abstracting charges
and reasonable attorneys' fees (including such fees for trial, pretrial and
appellate matters), shall be paid by the Mortgagor together with interest
thereon from date of payment at the rate of nine point sixty-five per centum
(9.65%) per annum and any such sum and the interest thereon shall be
immediately due and payable and be secured hereby, having the benefit of
the lien hereby created, as a part thereof, and of its priority.
11. Subject to the Mortgagor's right to bring good faith contests as
provided above in paragraph 5, Mortgagor shall pay all sums, the failure to
pay which may result in the acquisition of a lien prior to the lien of this
Mortgage before such a prior lien may attach, or which may result in
conferring upon a tenant of any part of the mortgaged premises a right
to recover such sums as prepaid rent, or as a credit or offset against any
future rental obligation.
12. Mortgagor shall assign to the Mortgagee, upon request, as further
security for the indebtedness secured hereby, the lessor's interests in any
or all leases, and the Mortgagor s interests in all agreements, contracts,
licenses and permits affecting the property subject to this Mortgage, such
assignments to be made by instruments in from satisfactory to the Mortgagee;
but no such assignment shall be construed as a consent by the Mortgagee to
any lease, agreement, contract, license or permit so assigned, or to impose
upon the Mortgagee any obligations with respect thereto. Nothing contained
in this paragraph 12 or in paragraphs 13 or 14 below shall be construed as a
waiver or consent by the Mortgagee to any violation of the prohibitions
and restrictions set forth in subparagraph 23 (g) hereof.
13. Mortgagor shall not cancel any of the leases now or hereafter
assigned to Mortgagee pursuant to paragraph 12 above, nor terminate or
accept a surrender thereof or reduce the payment of the rent thereunder or
modify any of said leases or accept any prepayment of rent therein (except
any amount which may be required to be prepaid by the terms of any such
lease) without first obtaining, on each occasion, the written approval
of the Mortgagee.
14. Mortgagor will faithfully keep and perform all of the obligations
of the landlord under all of the leases now or hereafter assigned to the
Mortgagee pursuant to paragraph 12 above and will not permit to accrue to
any tenant under any such lease any right to prepaid rent pursuant to the
terms of any lease other than the usual prepayment of rent as would result
from the acceptance on the first day of each month of the rent for the
ensuing month, according to the terms of the various leases.
15. Except as otherwise provided herein, the Mortgagor agrees that,
during the term hereof, the Mortgagor will not acquire any equipment,
machinery, furniture, furnishings, fixtures or apparatus covered by this
Mortgage subject to any security interest, conditional sale, title retention
arrangement or other charge or lien taking precedence over this Mortgage.
The Mortgagor shall have the right to add, substitute or replace such
machinery and equipment during the term hereof, provided, however, that
the Mortgagor shall not so add, substitute or replace in such a manner as
to substantially diminish or impair the value of the security of this
Mortgage and provided further that all of the right, title and interest of
the Mortgagor in all such replacement or additional machinery and equipment
shall, when acquired by the Mortgagor, be encumbered by the lien of this
Mortgage and become an integral part of the security under this Mortgage.
Anything to the contrary contained in this Mortgage, including the specific
provisions of this paragraph 15, notwithstanding, the Mortgagor shall have
the right without being deemed to be in default of its covenants contained
herein, during the term hereof and without the prior written consent of
the Mortgagee, to remove as items included in the mortgaged premises, such
equipment, machinery, furniture, furnishings, fixtures or apparatus which
have depreciated to such extent so as to render the same a non-material
asset or assets. For the purposes of this paragraph 15, non-material assets
are those items of personal property having a salvage value of $50,000 or
less. In events of removal of non-material assets by the Mortgagor, the
Mortgagor shall not be required to replace such assets as contemplated
herein unless such removal without replacement will serve to substantially
diminish or impair the value of the security of this Mortgage or materially
affect the business operations of the Mortgagor or its ability to fulfill its
obligations hereunder. The Mortgagor expressly agrees that it shall not,
without replacing same, remove as part of the mortgaged premises any
tangible personal property having a salvage value in excess of $50,000
without having first obtained the prior written consent of the Mortgagee.
16. Mortgagor shall furnish to Mortgagee, at Mortgagor s expense,
within ninety (90) days after the end of each fiscal year, a consolidated
balance sheet and consolidated statement of income and retained earnings of
Mortgagor's parent company, Orange-co, Inc., a Florida corporation, and said
parent company's consolidated subsidiaries, certified by independent public
accountants selected by Orange-co, Inc., a Florida corporation, and
satisfactory to the Mortgagee, together with a certificate of said accountants
to the effect that their audit of the financial affairs of Orange-co, Inc.,
a Florida corporation, and its consolidated subsidiaries for such fiscal
year has not disclosed any default under the terms and provisions of this
Mortgage, or if such accountants have obtained knowledge of such default,
they shall specify in the certificate the nature and status thereof. The
foregoing audited financial statement shall be accompanied by unaudited
consolidating financial information reporting financial data for the
Mortgagor. Such supplementary financial information relating to the
condition of the Mortgagor is to be of sufficient detail in order to permit
determination of the status of the various financial and business
requirements provided for herein. The Mortgagee and its representatives
shall have the right to inspect all books of accounts relating to the
property encumbered by this Mortgage and the financial and business
requirements contained herein (and to make copies or extracts therefrom) and
to cause such books to be audited by such independent public accountants
selected by the Mortgagee as often as may be reasonably requested, provided
however, that such inspection and audit shall be at the Mortgagee s expense.
17. This Mortgage is personal to the Mortgagor herein, and no sale,
lease, encumbrance or other transfer or conveyance shall be made by
Mortgagor of the property encumbered by this Mortgage, except for the sale of
non-material personal property pursuant to paragraph 15 of this Mortgage, or
premises described herein or any part thereof without first obtaining the
prior written consent of the Mortgagee. In the event Mortgagee gives this
written consent in a sale transaction, the grantee named in the conveyance
shall assume and agree to pay the obligation evidenced by the Notes secured
hereby. Any conveyance of the property herein described or any part thereof
in violation of the terms of this paragraph shall entitle Mortgagee to
accelerate the payment of the obligation secured hereby and all sums of
money secured hereby shall, at the option of Mortgagee, and upon the giving
of notice thereof, become immediately due and payable and in default whether
or not the same are so due and payable and in default by the specific terms
hereof. In the event of sale with the approval of Mortgagee having first
been obtained, nothing herein contained shall be construed to constitute a
novation or release Mortgagor or any subsequent owner of liability or
obligation under the Notes secured hereby or this Mortgage by reason of the
aforesaid assumption of the obligation under the Notes secured hereunder,
whether real or personal, excepting that the Mortgagor shall have the right
to add, substitute or replace personal property without the prior consent of
the Mortgagee in accordance with the provisions of paragraph 15 hereof,
and excepting that the Mortgagor shall be permitted to bring good faith
contests as provided in paragraph 5 herein.
18. Mortgagor shall not at any time during the term hereof, without
having first obtained the prior written consent of the Mortgagee, mortgage,
pledge or otherwise encumber or place any lien, or permit the same, to be
filed against the real and personal property encumbered hereby, or any
portion thereof.
19. Mortgagor shall at all times during the term hereof comply with
and conform to the requirements of all federal, state and local laws,
ordinances, regulations, conditions and restrictions applicable or pertaining
to, or affecting, the property and improvements described herein or the
business and operations of the Mortgagor, and Mortgagor shall not knowingly
commit, suffer or permit any act to be done in violation thereof, including,
without limitation, all federal, state and local pollution control laws
and regulations affecting the property encumbered hereby and the operation
hereof. Mortgagor warrants and represents that:
(a) to the best of Mortgagor s knowledge, there has been no
release or discharge of hazardous materials, hazardous wastes, hazardous
substances, solid wastes or pollution upon, in, over or under the mortgaged
premises and that no such materials or pollution has migrated thereto from
neighboring land;
(b) Mortgagor has not received any notice from any governmental
agency or authority or from any tenant or other occupant or from any other
person or entity with respect to any release or discharge of hazardous
materials, hazardous wastes, hazardous substances, solid waste or pollution
upon, in, over or under the mortgaged premises;
(c) to the best of Mortgagor s knowledge, there is no asbestos or
asbestos-containing materials, PCB's, radon gas or urea formaldehyde foam
insulation at or within the mortgaged premises; and
(d) Mortgagor has fully disclosed to Mortgagee all material facts
regarding the mortgaged premises, the Mortgagor and the Mortgagor's business
operations.
If Mortgagor's warranties and representations set forth in this Mortgage
are not true and correct, then Mortgagee, at its option, shall have the
right to declare the loan immediately due and payable and to accelerate the
entire indebtedness.
Mortgagor covenants and agrees that:
(a) Mortgagor is not and will not become involved in operations
at the mortgaged premises or at other locations which would lead to the
imposition on Mortgagor of liability under Chapter 403, Florida Statutes, the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6903,
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S. 9601 or any other federal, state or local ordinances,
laws or regulations regarding environmental matters or hazardous substances;
(b) Mortgagor will promptly comply with the requirements of
Chapter 000, Xxxxxxx Xxxxxxxx, XXXX, XXXXXX and all federal, state and local
laws and regulations regarding environmental matters or hazardous substances
as the same may each be amended from time to time (including all federal,
state and local laws and regulations regarding underground storage tanks),
and all such laws and regulations relating to asbestos and
asbestos-containing materials, PCB's, radon gas, and urea formaldehyde foam
insulation, and will notify Mortgagee promptly in the event of any release
or discharge or a threatened release or discharge of hazardous materials,
hazardous wastes, hazardous substances, solid waste or pollution upon, in,
over or under the mortgaged premises as those terms are defined in Chapter
403, Florida Statutes and any federal, state or local ordinances, laws or
regulations regarding environmental matters or hazardous substances, or the
presence of asbestos or asbestos-containing materials, PCB's, radon gas or
urea formaldehyde foam insulation at the mortgaged premises, or of the
receipt by Mortgagor of any notice from any governmental agency or authority
or from any tenant or other occupant or from any other person or entity with
respect to any alleged such release or presence promptly upon discovery of
such release, or promptly upon receipt of such notice, and will promptly send
Mortgagee copies of all results of any tests regarding same on the mortgaged
premises, including, but not limited to test on underground storage tanks;
and
(c) Mortgagor indemnifies and holds Mortgagee harmless from and
against all loss, liability, damage and expense, including attorneys fees
on the trial court and appellate levels, suffered or incurred by Mortgagee,
as holder of the Mortgage, Mortgagee in possession or as successor in
interest to Mortgagor as owner of the mortgaged premises by virtue of
foreclosure or acceptance of a deed in lieu of foreclosure, under or on
account of said Chapter 403 and any federal, state or local ordinances, laws
or regulations regarding environmental matters or hazardous substances,
including the assertion of any liens taking priority over the lien of this
Mortgage relating to any such release or discharge of hazardous materials
which may occur prior to the discharge of this Mortgage.
In the event that Mortgagor fails to abide by the above-described
covenants, Mortgagee, at its option, shall have the right to declare the loan
immediately due and
payable, and to accelerate the entire indebtedness.
During the term of this Mortgage, Mortgagee may, but is not obligated
to, enter upon the mortgaged premises to make reasonable inspection of its
condition, including, but not limited to soil and groundwater sampling and
monitoring, inspection for hazardous waste, asbestos or asbestos-containing
materials, PBC's, radon gas and/or urea formaldehyde foam insulation;
provided, however, that any such inspections shall be at reasonable times
and without unreasonably disturbing the occupancy of any of the tenants
on the mortgaged premises.
In the event Mortgagor fails to comply with the requirements of said
Chapters 403 and any federal, state or local ordinances, laws or regulations
regarding environmental matters or hazardous substances, and should such
condition remain uncorrected for a period of thirty (30) days, Mortgagee may,
at its election, but without the obligation so to do, cause curative or
remedial work to be performed at the mortgaged premises, or take any and all
other actions as Mortgagee deems necessary, as shall cure said failure of
compliance, and any amounts paid as a result thereof, together with interest
thereon from the date of payment at the rate equal to the highest rate
permitted by law, but in no event to exceed twelve and one-half percent
(12.5%) per annum, shall be immediately due and payable by Mortgagor to
Mortgagee, and until paid shall be added to and become a part of the
principal debt secured hereby, having the benefit of the lien hereby
created, as a part thereof, and of its priority, and the same may be
collected as a part of said principal debt in any suit hereon or upon
the Notes secured hereby, or Mortgagee, by the payment of any assessment,
claim or charge, may, if it sees fit, be thereby subrogated to the rights of
the State of Florida, but no such advance shall be deemed to relieve
Mortgagor from any default hereunder or impair any rights or remedy
consequent thereon.
20. Mortgagor agrees that during the term hereof, the Mortgagee shall
have the right, upon reasonable notice, during normal business hours and by
appointment, to enter upon the mortgaged premises for the purpose of
inspecting same and for the purpose of ascertaining that the various
requirements and restrictions contained herein are being complied with by
the Mortgagor.
21. In the event that Mortgagor shall (1) consent to the appointment
of a receiver or trustee of all or a substantial part of Mortgagor's assets,
or (2) be adjudicated a bankrupt or insolvent, or file a voluntary petition
in bankruptcy or admit in writing its inability to pay its debts as they
become due, or (3) make a general assignment for the benefit of creditors,
or (4) file a petition or answer seeking reorganization or arrangement with
creditors, or to take advantage of any insolvency law, or (5) file an answer
admitting the material allegations of a petition filed against the Mortgagor
in any bankruptcy, reorganization or insolvency proceeding, or (6) action
shall be taken by the Mortgagor for the purpose of effecting any of the
foregoing, or (7) any order, judgment or decree shall be entered upon an
application of a creditor or Mortgagor by a court of competent jurisdiction
approving a petition seeking appointment of a receiver or trustee of all or a
substantial part of the Mortgagor s assets and such order, judgment or decree
shall continue unstayed and in effect for any period of thirty (30)
consecutive days, the Mortgagee may declare the Notes hereby secured
immediately due and payable, without notice or demand, whereupon the
principal of and the interest accrued on the Notes and all other sums
hereby secured shall become immediately due and payable as if all of the
said sums of money were originally stipulated to be paid on such day; and
thereupon the Mortgagee without notice or demand may prosecute a suit at law
and/or in equity as if all monies secured hereby had matured prior to
its institution.
22. It is agreed that nothing herein contained nor any transaction
related thereto shall be construed or so operate as to require the Mortgagor
to pay interest at a rate greater than it is now lawful in such case to
contract for, or to make any payment or to do any act contrary to law; that
if any clauses or provisions herein contained operate or would prospectively
operate to invalidate this Mortgage or the Notes in whole or in part, then,
such clauses and provisions only shall be held for naught, as though not
herein contained, and the remainder of this Mortgage shall remain operative
and in full force and effect.
23. The Mortgagor understands and agrees that the successful operation
of the mortgaged premises by the Mortgagor as a citrus concentrate plant
forms an integral part of the security given hereby and the Mortgagor
expressly agrees that it shall, during the term hereof, conduct its corporate
business in compliance with the below-listed requirements and the failure by
Mortgagor to comply with or abide by such requirements, or Mortgagor' s
misrepresentation regarding any or all of the facts hereafter recited,
shall constitute a default under this Mortgage and the Notes secured hereby.
By its execution hereof, the Mortgagor does hereby represent and warrant
all of the facts hereafter recited and covenants and agrees with the Mortgagee
that it shall comply with or abide by the below-listed requirements at all
times during the term hereof, to-wit:
(a) The Mortgagor represents, that on the date hereof, it is a
corporation duly incorporated and validly existing in good standing under the
laws of the State of Florida and that it is a wholly-owned subsidiary of
Orange-co, Inc., a Florida corporation. Additionally, Mortgagor covenants
and agrees that it shall, at all times during the term hereof, remain validly
existing and in good standing under the laws of the State of Florida, and
that it shall not enter into a merger or consolidation agreement with any
other corporation, foreign or domestic, including, without limitation,
Mortgagor's parent company, Orange-co, Inc., a Florida corporation, or its
successor, without the prior written consent of the Mortgagee.
(b) The Mortgagor represents that the execution and delivery by
it of this Mortgage, the Notes secured hereby, and related loan documents,
and the performance by the Mortgagor thereunder, have been duly authorized by
all necessary corporate action and will not violate any provision of law or
the charter or by-laws of Mortgagor or result in the breach or constitute a
default under any indenture or otheragreement or instrument to which the
Mortgagor is a party or by which the Mortgagor or the real and personal
property encumbered hereby may be bound or affected.
(c) The Mortgagor covenants and agrees that, during the term
hereof, its lines of business shall be restricted to activities directly or
substantially related to the citrus industry.
(d) The Mortgagor covenants and agrees that, except for
transactions in the ordinary course of or pursuant to the reasonable
requirements of the Mortgagor's business, all transactions between the
Mortgagor and affiliates (including is parent company, Orange-co, Inc., a
Florida corporation or its successor) shall be on terms which are not
substantially different from those which the Mortgagor could have obtained
from unrelated parties as a result of "arms-length" bargaining.
(e) The Mortgagor covenants and agrees that, during the term
hereof, it shall annually reinvest not less than 25% of its annual
depreciation (as indicated on the required financial statements and reports
to be furnished by Mortgagor to Mortgagee) in capital improvements or repairs
and maintenance of the concentrate plant which is included as part of the
security hereof and are encumbered hereby. By its execution hereof, the
Mortgagor expressly understands and agrees that for the purposes of this
subparagraph (e) relating to reinvestment requirements, sums expended in
employing practices of good husbandry (with the exception of such items as
adding or replacing irrigation and drainage pumps and equipment and
the replacement of unproductive trees) shall not qualify for inclusion
within the annual reinvestment requirement of not less than 25% of
its annual depreciation. The Mortgagor further expressly agrees that if
such amount of its annual depreciation is not so reinvested, the Mortgagor
will establish an escrow account, satisfactory in all respects to the
Mortgagee and will pay annually into such account an amount equal to the
difference between 25% of its annual depreciation and the amounts actually
reinvested, as contemplated herein, by the Mortgagor in any one given fiscal
year, and the Mortgagor shall set a reserve aside therefor. The amounts so
deposited by Mortgagor into the escrow account may be used for reinvestment
purposes within a five-year period, and to the extent not so reinvested,
such funds, at the sole option of the Mortgagee, may be applied to the then
unpaid principal balance due under the Notes secured hereby. It is agreed
between the Mortgagor and the Mortgagee that if, in any one fiscal year, the
Mortgagor shall invest an amount in excess of 25% of its annual depreciation
in capital improvements or repairs and maintenance, then, such amount in
excess of 25% of its annual depreciation may be credited toward the
Mortgagor's obligations under this subparagraph (e) in any of the Mortgagor's
next five ensuing fiscal years.
(f) Intentionally Deleted.
(g) The Mortgagor represents that, on the date hereof, all
certificates, licenses and permits applicable to the property encumbered
hereby, including, but not limited to, all necessary water usage or
consumption permits, fruit dealers and citrus packing, producing and
marketing licenses and permits, all required pollution control permits, and
State and local agricultural permits, have been obtained, and Mortgagor
agrees to keep all such certificates, licenses and permits current during
the term hereof. Additionally, the Mortgagor covenants and agrees to use its
best efforts to comply with the requirements of all Federal, State and local
pollution control laws and regulations applicable to the property encumbered
hereby and to the business and operations of the Mortgagor.
(h) The Mortgagor acknowledges that, in accordance with paragraph
15 hereof and subject to its provisions, the Mortgagor's right to substitute
and replace machinery and equipment shall exist only in those events in
which the value of the Mortgagee's security will not be reduced or impaired
by such substitution or replacement and in which the Mortgagee will obtain
the first and best lien on the machinery and/or equipment so substituted or
replaced.
(i) It is agreed that all references to Mortgagor's parent
company, Orange-co, Inc., a Florida corporation, contained in this Mortgage
shall be deemed and construed to include any successor, by any means
whatsoever, to Orange-co, Inc., a Florida corporation, and any successor to
such successor, etc.
(j) The Mortgagor covenants and agrees that it shall, upon
learning of or recognizing any non-compliance with any of the special
requirements and restrictions contained in this paragraph 23, or of
non-compliance with any of the other provisions of this Mortgage, including
without limitation, the provisions contained in paragraphs 15, 17, 18
and 19 hereof, give written notice to the Mortgagee of such non-compliance
within ten (10) days from such recognition. In the event of any default
under the terms and conditions of this paragraph 23, or under the terms and
conditions of paragraphs 15,17, 18 and 19 hereof, aforesaid, and such default
shall have continued for a period of
thirty (30) days or more after written notice thereof has been given by the
Mortgagor to the Mortgagee as provided above, or, in any event, shall have
continued for a period of thirty (30) days or more after written notice
thereof has been given by the Mortgagee to the Mortgagor (it being expressly
understood by the Mortgagor that the Mortgagee may give such notice of
default regarding the obligations to be performed by the Mortgagor hereunder
at any time the Mortgagee learns of such default by any means whatsoever
and the Mortgagee s right to give such notice is not conditioned upon having
received a notice from the Mortgagor as provided above) and such default
shall have not been cured or the Mortgagor shall not have commenced upon
the curing thereof to the satisfaction of the Mortgagee within said thirty
(30) days' period, then, at its option, the Mortgagee shall be entitled to
accelerate the payment of the obligation secured hereby and all sums of money
secured hereby shall become immediately due and payable and in default whether
or not the same are so due and payable and in default by the specific terms
hereof. It is expressly understood between the Mortgagor and the Mortgagee
that the aforesaid thirty (30) day grace period shall apply only in the
event of a default under this paragraph 23 and under paragraphs 15, 17, 18
and 19 hereof and such grace period shall not apply to any default under any
other provision, requirement, condition or covenant contained herein, in the
Notes secured hereby, or in any other related or associated loan document
given by the Mortgagor to the Mortgagee.
Of even date herewith, Orange-co, Inc., a Florida corporation, the
parent company of the Mortgagor, has issued its certificate to the Mortgagee,
in connection with this loan (the "Certificate") setting forth its agreements
and the business requirements to be maintained by Orange-co, Inc., a Florida
corporation, at all times prior to the payment in full of the indebtedness
secured hereby (the "Business Requirements"). It is agreed that it shall be
a default under the terms and conditions of this Mortgage in the event that
Orange-co, Inc., a Florida corporation, fails to maintain or otherwise
violates the Business Requirements set forth in the Certificate.
24. It is agreed that any sum or sums which may be loaned or advanced
by the Mortgagee to the Mortgagor at any time within twenty (20) years from
the date of this indenture, together with interest thereon at the rate agreed
upon at the time of such loan or advance shall be equally secured with and
have the same priority as the original indebtedness and be subject to all
the terms and provisions of this Mortgage; provided that the aggregate amount
of principal outstanding at any time shall not exceed the sum of
$22,000,000.00, plus interest thereon, and any disbursements made for the
payment of taxes, levies, or insurance on the property covered by the lien of
this Mortgage, with interest on such disbursements.
25. By its execution and delivery hereof, the Mortgagor does hereby
represent and warrant unto the Mortgagee that there are no actions, suits or
proceedings pending or, to the best of the knowledge and belief of the
Mortgagor, threatened against or affecting the Mortgagor or its subsidiaries,
at law or in equity or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which may result in any material
adverse change in the business, properties or assets or in the condition,
financial or otherwise, of the Mortgagor or any of its subsidiaries. The
Mortgagor expressly agrees that if the aforementioned representation and
warranty prove to be false or if the Mortgagor has misrepresented the facts
set forth above, either of such events shall constitute a default under this
Mortgage and the Notes secured hereby entitling the Mortgagee to exercise
all of the rights and remedies contained herein and in the Notes.
26. No delay by Mortgagee in exercising any right or remedy hereunder,
or otherwise afforded by law, shall operate as a waiver thereof or preclude
the exercise thereof during the continuance of any default thereunder. No
waiver by Mortgagee of any default shall constitute a waiver of or consent
to subsequent defaults. No failure of Mortgagee to exercise any option
herein given to accelerate the maturity of the debt hereby secured, no
forbearance by Mortgagee before or after the exercise of such option and no
withdrawal or abandonment of foreclosure proceedings by Mortgagee shall be
taken or construed as a waiver of its right to exercise such option or to
accelerate the maturity of the debt hereby secured by reason of any past,
present or future default on the part of Mortgagor; and, in like manner,
the procurement of insurance or the payment of taxes or other liens or
charges by Mortgagee shall not be taken or construed as a waiver of its
right to accelerate the maturity of the debt hereby secured.
27. All written notices required to be given in connection with this
Mortgage shall be deemed to have been properly given if mailed by registered
or certified mail or personally delivered, if to Mortgagee, at Xxxx Xxxxxxx
Mutual Life Insurance Company, X.X. Xxx 000, Xxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Bond and Corporate Finance Department
(Agri Business Group); and if to the Mortgagor, at 0000 X.X. Xxxxxxx 00
Xxxxx, Xxxxxx, Xxxxxxx 00000. Said addresses may be changed from time to
time by any of the foregoing parties by notice to the others, mailed or
delivered as aforesaid, of the location and mailing address of the place at
which notice is thereafter to be mailed or delivered.
28. This instrument also creates a security interest in favor of
Mortgagee under the Florida Uniform Commercial Code and shall be construed
as a security agreementunder said Code, and Mortgagee shall also have all
rights and remedies of a secured party under the Florida Uniform Commercial
Code, and without limitation upon or in derogation of the rights and
remedies created under and accorded Mortgagee by this Mortgage pursuant to
the common law or any other laws of the State of Florida or of any other
jurisdiction, it being understood that the rights and remedies of Mortgagee
under the Florida Uniform Commercial Code shall be cumulative and in addition
to all other rights and remedies of Mortgagee arising under the common law,
or any other laws of the State of Florida or of any other jurisdiction.
This Mortgage creates a continuing lien to secure the full and final
payment of the Notes and the performance of all other obligations imposed
hereby and hereafter arising.
29. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS MORTGAGE AND ANY AGREEMENT EXECUTED IN CONNECTION WITH THIS
MORTGAGE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE ACCEPTING THIS MORTGAGE AND MAKING THE LOAN TO
MORTGAGOR.
NOW, if the payments are made as provided and all the foregoing
covenants and agreements are performed and observed, this Mortgage shall
be null and void and shall be released at the cost of the Mortgagor, which
cost the Mortgagor agrees to pay; but upon any default in the payment of the
indebtedness hereby secured or of any installment thereof or of interest
thereon, as they severally become due, or upon any default in the
performance or observance of any of the terms, covenants or agreements
of this Mortgage or of any of the assignments of leases beyond any applicable
grace period from time to time given by Mortgagor to Mortgagee as further
security for said loan, then, in any or either of said events, the whole of
the indebtedness hereby secured, at the option of the Mortgagee or the legal
holder of said indebtedness, shall become immediately due and payable
without notice, or in the event of the passage after the date of this
Mortgage of any law of the State of Florida deducting from the value of land
for the purpose of taxation any lien thereon, or changing in any way the
laws now in force for the taxation of mortgages or debts secured by mortgages
for state or local purposes, or the manner of the collection of any such
taxation so as to affect this Mortgage adversely, the holder of this
Mortgage, and of the debt which it secures, shall have the right to give
thirty (30) days' written notice to the owner of the mortgaged premises
requiring the payment of the mortgage debt, and it is hereby agreed that,
if such notice be given, the said debt shall become due, payable and
collectible at the expiration of said thirty (30) days provided, however,
that such requirement of payment of said debt shall be ineffective if
the Mortgagor is permitted by law to pay or reimburse the Mortgagee
for payment of the whole of such tax in addition to all other payment
required hereunder, without any penalty thereby accruing to the holder
of this Mortgage and the debt secured hereby, and if, in fact, the
Mortgagor does pay or reimburse the Mortgagee for payment of such tax
prior to the date on which payment is required by such notice.
Upon the Mortgage indebtedness becoming due and payable as heretofore
provided, the Mortgagor shall refrain from collecting and receiving
all rents accruing as aforesaid and upon notice from the Mortgagee all
tenants shall thereafter pay such rents to the Mortgagee, and any
payment made otherwise shall not discharge the obligations of such
tenant, and the Mortgagee may immediately cause this Mortgage to be
foreclosed in the manner prescribed by law, and upon commencement of
foreclosure proceedings shall be entitled to have a receiver appointed,
whether the mortgaged premises are homestead or not and without proof of
any other ground for his appointment than the said default, to take
possession and charge of the mortgaged premises, to rent the same and
receive and collect the rents, issues and profits thereof, under
direction of the court, and any amount so collected by such receiver
shall be applied under direction of the court to the payment of any
judgment rendered, or amounts found due upon foreclosure of this Mortgage
including the cost of collection and attorneys' fees on any trial court
and appellate levels; and, in the event of any default or defaults in the
payment of the indebtedness hereby secured, or of any installment thereof,
or of interest thereon, or in the performance or observance of any of the
terms, covenants or agreements herein contained beyond any applicable grace
period, the Mortgagee shall have the right forthwith after any such
default to enter upon and take possession of the said mortgaged premises
and to let said premises and receive the rents, issues and profits thereof,
and apply the same, after payment of all necessary charges and expenses,
on account of the indebtedness hereby secured.
The proceeds of said foreclosure shall be applied, first, to the
expenses incurred hereunder, including attorneys' fees on any trial court
and appellate levels for such services as may be rendered for the
collection of said indebtedness and the foreclosure of this Mortgage;
second, to the payment of whatever sum or sums the Mortgagee may
have paid or become liable to pay in carrying out the options, terms
and stipulations of this Mortgage, together with interest thereon; third,
to the payment and satisfaction of the Notes; and fourth, the surplus,
if any, shall be paid to the Mortgagor or otherwise as the court may
decree.
The Mortgagor hereby agrees that in the event the Notes secured
hereby is placed in the hands of an attorney for collection, or in case
the holder shall become a party either as plaintiff or as defendant in
any suit or legal proceeding in relation to the property described or the
lien created in this Mortgage, or for the recovery or protection of said
indebtedness, the Mortgagor will pay on demand all costs and expenses
arising thereof incurred by the Mortgagee, including the Mortgagee's
attorneys' fees (including such fees for prosecuting or defending any
appeal in any matter involving collection of this obligation or
foreclosure of the Mortgage securing same), all of Mortgagee's court
costs, and the cost of extending the abstract of title in the event of
foreclosure (or any other litigation which in the judgment of the
Mortgagee requires the extending of the abstract of title), with
interest thereon until paid at the rate of nine point sixty-five per
centum (9.65%) per annum.
The Mortgagor hereby assigns, transfers and conveys unto the Mortgagee,
its successors and assigns, the rents accrued and to accrue from all tenants
in occupancy of the mortgaged premises, or any part thereof, including
rentals and royalties under oil, gas and mineral leases, if any, during the
lifetime of this Mortgage, it being understood that as long as there is no
default in the performance or observance of any of the covenants or
agreements herein contained, the Mortgagor shall have the privilege of
collecting and receiving all rents accruing under the leases or contracts
of tenancy for the mortgaged premises or any part thereof. All leases,
royalty agreements, etc., must be executed pursuant to the provisions of
paragraph 17 hereof.
It is expressly agreed by and between Mortgagor and Mortgagee that
if any provision, or any part thereof, of this Mortgage, the Notes secured
hereby, or any related loan document is prohibited, unenforceable or
invalid under the laws of any jurisdiction which has jurisdiction over
same, including those of the State of Florida, the provision or part
thereof shall be ineffective to the extent of such prohibition,
unenforceability or invalidity under the applicable law without
affecting the enforceability or validity of such provision in any
such jurisdiction, and without invalidating the remainder of such
provision or other provisions of said documents.
IN WITNESS WHEREOF, the Mortgagor has caused the execution of this
Mortgage, by its authorized officers and caused its corporate seal to be
affixed this 13th day of August, 1996.
Signed, sealed and delivered ORANGE-CO OF FLORIDA, INC.,
in the presence of: a Florida corporation
/s/Xxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- -------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx Xxxxxx
Title: President
ATTEST:
/s/Xxxxx X. Plage /s/Xxxx X. Xxxxxxxxxxx
----------------------- ---------------------------
Name: Xxxxx X. Plage Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President and
Chief Financial Officer
(Corporate Seal)
STATE OF FLORIDA)
)
COUNTY OF POLK )
I hereby certify that on this 13 day of August, 1996, before me an
officer duly authorized in the State and County aforesaid to take
acknowledgments, personally appeared Xxxx Xxxxxx and Xxxx X. Bruwelheid,
respectively, the President and Chief Financial Officer of ORANGE-CO OF
FLORIDA, INC., a Florida corporation, on behalf of the corporation, who
is personally known to me/or who produced the following __________ as
identification, and they acknowledged before me that they executed the
same as their free act and deed on behalf of said corporation.
In witness whereof, I have hereunto set my hand and seal in the
State and County aforesaid as of this 13 day of August, 1996.
/s/Xxxx X. Xxxxx
----------------
Xxxx X. Xxxxx
Notary Public, State of Florida
Name:
Commission No.
My commission expires
(Notary Seal)
JOINDER AND CONSENT
The undersigned does hereby join in and consent to the foregoing
Consolidated, Amended and Restated Florida Mortgage and Security Agreement
this 7 day of August, 1996.
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation
/s/ Xxxxx X. Xxxxx By: /s/Xxx Xxxxx, Xx.
-------------------- ----------------------
Name: Xxxxx X. Xxxxx Name:Xxx Xxxxx, Xx.
Title: Sr. Investment Officer
/s/Xxxxxx X. Xxxxxx
--------------------
Name:Xxxxxx X. Xxxxxx
(Corporate Seal)
COMMONWEALTH OF MASSACHUSETTS )
)
COUNTY OF SUFFOLK )
I hereby certify that on this 7th day of August, 1996, before me an
officer duly authorized in the State and County aforesaid to take
acknowledgments, personally appeared Xxx Xxxxx, Xx., as the Sr. Investment
Officer for XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation, on behalf of the corporation, who produced the following a
driver's license as identification, and he did acknowledge before me that
he executed the same as his free act and deed and the free act and deed of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal in the
State and County aforesaid as of this 7th day of August, 1996.
/s/Xxxxx X. X'Xxxxx
-------------------
Xxxxx X. X'Xxxxx
Notary Public, Commonwealth of Massachusetts
Commission No.:_______________________
My Commission expires:
MIA9510/119449-1
