01-18
RESOLUTION NO. 01-18
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A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING THE LEASEHOLD MORTGAGE
ENTERED INTO BY PACT, INC., WITH BANK OF
AMERICA, AND APPROVING THE EXECUTION OF A
GUARANTY AGREEMENT BETWEEN THE CITY OF
CLEARWATER AND PACT, INC,; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City entered into a Lease and a Facility Use Agreement with
PACT both dated March 7, 2001; and
WHEREAS, said the Lease requires prior City approval of any mortgage by
PACT; and
WHEREAS, the Facility Use Agreement provided that the City would enter into a
guaranty agreement limited to a total of one million dollars; now, therefore,
BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF CLEARWATER, FLORIDA:
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Section 1. Pursuant to Section 16 of the March 7, 2001, Lease Agreement
between PACT, Inc., and the City of Clearwater, the City Commission hereby consents
to the leasehold mortgage entered into by PACT, Inc., and the Bank of America to the
extent that it shall not modify or nullify any terms, provisions, covenants, conditions or
obligations of the lease, A copy of said leasehold mortgage is attached hereto as
Exhibit A. By approval hereof, the City of Clearwater is not subordinating its fee
interest in the leasehold property so mortgaged.
Section 2. The City Commission hereby approves the execution and delivery of
a Guaranty Agreement between PACT, Inc., and the City of Clearwater and the Bank of
America, a copy of which is attached hereto as Exhibit B.
Section 3. This resolution shall take effect immediately upon adoption.
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PASSED AND ADOPTED this /7- day of May, 2001.
missioner
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Approved as to form:
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Pamela K, Akin, City Attorney
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Attest:. --
Resolution No. 01-18
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This Instrument Was Prepared By /
Record and Return To:
Mark E, Raymond, Esq.
P.O. Box 3888
West Palm Beach, FL 33402
LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
This document is exempt from the excise tax on documents and the intangible personal property
tax pursuant to Section 159.50, Florida Statutes.
EXHIBIT A
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . 2
1.2. Rules of Construction , . . . . . . . , . . . . . . . . . . , . . . . . . . . . . . . . , . , . 6
1.3. Security Agreement ......,.....,....................,.,.. 7
ARTICLE II GRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . , . . 7
2.1. Grant.....,.......................................... 7
2.2 Condition of Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . , 7
2.3 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III ASSIGNMENT OF LEASES AND RENTS ........,............. 7
3.1 Assignment . . . . . . . . . . . . . , . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Payment of Rents to Mortgagor, as trustee, until Default .............. 7
3.3 Provisions of Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . 8
3.4 No Obligation of Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Cumulative Remedies ....... . . . . . . . . . . . . . . . . , . . . . . . . . , , . . . 8
3.6 Notification of Mortgagee's Rights ............................8
3.7 Attorney-in-Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 8
3.08 Other Assignments . . . . . , . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . 9
3.09 Section 697.07 of the Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . , . . 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES .,....,..............9
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
Representations and Warranties . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . 9
Organization, Corporate Power, Partnership Power, Etc .............. 9
Validity of Loan Documents . . . . . . . . . . . . . , . . . . . , . . . . . . . . . . . . 10
Financial Statements . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 10
Other Agreements .........,........,................... 10
Other Information ...................................,.. 10
Title ..................,..,..,.................,.... 10
No Violations ........,................................ 11
Taxes .............................................. 11
Litigation . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Utilities ............................................. 11
Condition of Mortgaged Property ............................ 11
Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
No Default , . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fictitious Name Statute . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . 12
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4.16
4.17.
4.18
4.19
4.20
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Junior Mortgage .......,............................... 12
Environmental Contamination/Hazardous Material ......,.....,.... 12
Facilities For Handicapped . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . , . 12
Representations and Warranties in Other Bond Documents . . . . . . . . . . . , 12
Reliance on Representations . . , . . . . . . . . . . . . . . . . . . . . . . . , . . . . . 12
ARTICLE V AFFIRMATIVE COVENANTS ... . . . . . . . . , . . . . . . . . . . . . . . . . . 13
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5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
5.13
5.14
5.15
5.16
5.17
5.18
5.19
5.20
5.21
5.22
5,23
5.24
5.25
Payment and Performance ",."........................... 13
Existence .......,.................,............,...., 13
Compliance With Laws , . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Impositions . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . , , . , , , . . . , . 13
Insurance . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . , . . . . . . . 13
Restoration Following Casualty. . . , . . . . . . . , . . . . . . , . . . . . . . . . . . 14
Condemnation. . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 15
Tax and Insurance Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Repair . . . . . . . . . . . . . . . . . . . . . , . . , . . . . . , . . . . . . . . . . . . . . . 16
Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . 16
Contest of Tax Assessments, Etc. , . . . . . . . . . . . . . . . . . . . . . , . . . . . 16
Expenses .................,...........".,.....,..... 16
Preservation of Agreements ....... . . . . . . . . . . . . . . . . . . . . . . . . . 17
Books and Records . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . 17
Estoppel Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Indemnification .............. . . . . . . . . . . . . . . . . . . . . . , . . . . 17
Further Assurances . . . . . . . , . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . 18
Junior Mortgage(s) and Rights of Mortgagee . . . . . . . . . . . . . . . . . . . . . 18
Financing Statements .................................... 19
Withholding Taxes . . . . . . . . . . . .. . . . . . . . . , , . . . . . . . . . . . . . . . 19
Hazardous Material ......,..........................,... 20
Financial Reports, Etc . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . 21
Performance of Bond Documents ..............,............, 21
Performance of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bond Purchase Agreement . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI NEGATIVE COVENANTS . . . . . . . . . . . . . . , . . , . . . . . . . . . . . . . . 22
6.1 Use Violations, Etc ..................................... 22
6,2 Care of the Mortgaged Property ............................. 22
6.3 Other Liens and Mortgages ................................ 23
6.4 Transfer of Mortgaged Property ............................. 23
6.5 Transfer of Other Assets ................................,. 23
6.6 Environmental Contamination/Hazardous Material ................. 23
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ARTICLE VII
EVENTS OF DEFAULT. . . . . . . , . . . . . . . . . . . . . . . . . . . . . 24
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7.1
Events of Default . . . . , . , . . , . . . . . . . . . . . . , . . . . . . . . . . . . . . . . 24
ARTICLE VIII
RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . , . . . . . . 25
8,1 Remedies, . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 25
8.2 Remedies Cumulative and Concurrent .........,.............,. 28
8.3 Waiver, Delay or Omission ....."......................... 28
8.4 Credit of Mortgagee . . . . . . . . . . . . . . , . , . . , . , . . . , . . . . . . . . . . . 28
8,5 Sale . . . . . , . , . , , . . , . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . , . , 28
8.6 Proofs of Claim. . . . , . . . . . . . . , . . . . , . . , . . . , . . . , , . . . . . . . , . 29
8.7 Waiver of Redemption, Notice, Marshalling, Etc ..,....,....,..... 29
8.8 Application of Proceeds. . . . . . . . . . . . . . . . . , . . . . . . . . . . . , . . . . . 29
8,9 Discontinuance of Proceedings ,........................,.... 29
8,10 Mortgagee's Actions . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 29
8.11 Mortgagee's Consent ..,....................,............ 30
ARTICLE IX MORTGAGEE'S PERFORMANCE .......,..................30
9,1 Governmental Regulation of Mortgagee ........................ 30
9.2 Mortgagee's Failure to Perform ..,.......................... 30
9.3 Mortgagor's Rights and Remedies . . . . . . . , . . . . . . , . . . . . . . . . . . . . 31
. ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Maximum Rate of Interest .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Continuing Agreement ................................... 31
10.3 Survival of Warranties and Covenants ......................... 31
10.4 No Representation By Mortgagee ............................ 32
10.5 Notice........................................,..... 32
10.6 Mortgagee's Right to Pay and Perform. . . . . . . . . . . . . . . . . . . . . . . . . 32
10.7 Covenants Running With the Land. . . . . . . . . . . . . . . . . . . . . . . , . . . . 32
10.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.9 Invalidity............................................ 32
10.10 Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.11 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.12 Replacement of Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.13 Strict Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . 33
10.14 Arbitration and Waiver of Jury Trial .....................,.... 33
10.15 Provisions Relating to the Site Lease .......................... 34
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MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (this "Mortgage"), is made as of the 1st day of May, 2001 by PACT, Inc. (the
"Mortgagor"), as mortgagor and debtor, whose principal place of business is 1111 McMullen
Booth Road, Clearwater, Florida 33759, to Pinellas County Industrial Development Authority
(together with its successors and assigns, including, particularly, Bank of America, N .A., the
"Mortgagee"), as mortgagee and secured party, whose address is 14010 Roosevelt Boulevard,
Suite 704, Clearwater, Florida 33762.
WHEREAS, Pinellas County Industrial Development Authority has by Resolution adopted
May 1, 2001 (as amended and supplemented from time to time, the "Resolution") authorized the
issuance of its Revenue Bond, Series 2001 (PACT, Inc. Project) in the principal amount of not
exceeding $5,000,000 (the "Bond") and has agreed to loan the proceeds thereof (the "Loan") to
the Mortgagor pursuant to the Loan Agreement, dated as of May 1, 200 1 between the Mortgagee
and the Mortgagor (as amended from time to time, the "Agreement") to finance and refinance a
portion of the costs of constructing and equipping an addition to a performing arts and educational
facility to be owned and operated by Mortgagor; and
WHEREAS, the obligation of the Mortgagor to repay the Loan shall be evidenced by a
promissory note of the Mortgagor (the "Note"); and
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WHEREAS, Mortgagor and Mortgagee wish to enter into to this Leasehold Mortgage,
Assignment of Rents and Security Agreement in order to secure the obligations of the Mortgage
under the Note; and
WHEREAS, the Agreement (except for Unassigned Issuer's Rights [as defined in the
Agreement]), this Mortgage and the Note will be assigned and transferred by Pinellas County
Industrial Development Authority to Bank of America, N .A., the purchaser of the Bond, to
provide for and secure payment of the Bond; and
WHEREAS, to induce the Issuer to issue the Bond to fund the Loan and to evidence and
secure the obligations of the Mortgagor under the Agreement, the Mortgagor has executed and
delivered the Note, this Mortgage and certain other loan documents, as hereinafter defmed, to the
Mortgagee;
WHEREAS, the Mortgagor has entered into the Site Lease (herein defined) with the City
of Clearwater, Florida (the "City") and pursuant to such Site Lease the City has reviewed this
Mortgage and consents to the Mortgage to the extent that it does not modify or nullify any terms,
provisions, covenants, conditions or obligations of the Site Lease; and
WHEREAS, the Mortgagee acknowledges that certain additional requirements contained
in the Site Lease shall apply hereto including a requirement of written notice to the City of a
. default by Mortgagor as further set forth herein;
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NOW, THEREFORE, in consideration of the foregoing, the making of the Loan and the
issuance of the Bond, Mortgagor and Mortgagee do hereby agree that the Original Mortgage is
hereby amended and restated in its entirety to provide as follows:
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 Defmitions. Terms used in this Mortgage and not otherwise defmed herein shall have
the meanings ascribed thereto pursuant to the Agreement and the Bond Purchase Agreement
(hereinafter defined). In addition, as used in this Mortgage and in the exhibits attached hereto,
the following terms shall have the following meanings herein specified, such definition to be
applicable equally to the singular and plural forms of such terms:
(a) Environmental Claim: Any investigative, enforcement, cleanup, removal,
containment, remedial or other private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable Environmental Requirement, against
Mortgagor or against or with respect to the Mortgaged Property, or any condition, use or activity
on the Mortgaged Property (including any such action against Mortgagee), and any claim at any
time threatened or made by any person against Mortgagor or against or with respect to the
Mortgaged Property or any condition, use or activity on the Mortgaged Property (including any
such claim against Mortgagee), relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from or in any way arising in connection with any Hazardous Material or
any Environmental Requirement.
(b) Environmental Law: Any federal, state or local law, statute, ordinance,
code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of
common law, and any judicial or agency interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the environment (including but not limited to ground
or air or water or noise pollution or contamination, and underground or above ground tanks).
(c) Environmental Requirement: Any Environmental Law, agreement or
restriction (including but not limited to any condition or requirement imposed by any insurance
or surety company), as the same now exists or may be changed or amended or come into effect
in the future, which pertains to health, safety, any Hazardous Material, or the environment,
including but not limited to ground or air or water or noise pollution or contamination, and
underground or above ground tanks.
(d) Events of Default: Those events described in Article VII hereof.
(e) Fixtures: All property and equipment now owned or hereafter acquired by
Mortgagor and now or hereafter located under, on, or above the Land, whether or not permanently
affixed, which, to the fullest extent permitted by applicable law in effect from time to time, shall
be deemed fixtures and a part of the Land.
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(t) Governmental Authority: Any (domestic or foreign) federal, state, county,
municipal or other governmental department, entity, authority, commission, board, bureau, court,
agency or any instrumentality of any of them.
(g) Governmental Requirement: Any law, enactment, statute, code, ordinance,
order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license,
authorization, or other direction or requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered, or issued applicable to Mortgagee, Mortgagor
or the Mortgaged Property, including, without limitation, any Environmental Law,
(h) Hazardous Material: Any substance, whether solid, liquid or gaseous which
is listed, defined or regulated as a "hazardous substance," "hazardous waste," or "solid waste,"
or pesticide or otherwise classified as hazardous or toxic, in or pursuant to any Environmental
Requirement; or which is or contains asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum
hydrocarbons; which causes or poses a threat to cause a contamination or nuisance on the
Mortgaged Property or any adjacent property or a hazard to the environment or to the health or
safety of persons on the Mortgaged Property.
(i) Impositions: All (i) real estate and personal property taxes and other taxes
and assessments, public or private; utility rates and charges including those for water and sewer;
all other governmental and non-governmental charges and any interest or costs or penalties with
respect to any of the foregoing; and charges for any public improvement, easement or agreement
maintained for the benefit of or involving the Mortgaged Property, general and special, ordinary
and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that at any time
prior to or after the execution of this Mortgage may lawfully be assessed, levied or imposed upon
the Mortgaged Property or the Rent or income received therefrom, or any use or occupancy
thereof, (ii) other taxes, assessments, fees and governmental and non-governmental charges levied,
imposed or assessed upon or against Mortgagor or any of its properties and (iii) taxes levied or
assessed upon this Mortgage, the Note, and the other Obligations, or any of them.
(j) Improvements: All buildings, structures, appurtenances and improvements,
including all additions thereto and replacements and extensions thereof, now constructed or
hereafter to be constructed under, on or above the Land, which term includes any part thereof.
(k) Junior Mortgage: Any mortgage permitted hereby or by Mortgagee which
now or hereafter encumbers all or any portion of the Mortgaged Property and which is junior or
subordinate to the lien of this Mortgage, which term shall collectively refer to all such mortgages
and the note or notes secured thereby.
(1) Land: The real property described in Exhibit "A" attached hereto and made
a part hereof, together with all rights, privileges, tenements, hereditaments, rights-of-way,
easements, appendages, projections, appurtenances, water rights including riparian and littoral
rights, streets, ways, alleys, and strips and gores of land now or hereafter in anyway belonging,
adjoining, crossing or pertaining to the Land.
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(m) Leases: Any and all leases, subleases, licenses, concessions, or grants of
other possessory interests, together with the security therefor, now or hereafter in force, oral or
written, covering or affecting the Mortgaged Property or any part thereof.
(n) Loan: $5,000,000 as evidenced by the Note,
(0) Loan Agreement: The Loan Agreement, of even date herewith, between
Mortgagor and Mortgagee.
(p) Mortgaged Property: The Mortgagor's interest in the Land, Improvements,
Fixtures, Leases, Rents and Personal Property together with:
(i) all judgments, awards of damages and settlements hereafter made
resulting from condemnation proceedings or the taking of the Mortgaged Property or any part
thereof under the power of eminent domain, or by agreement in lieu thereof, or for any damage
thereto caused by any governmental action (whether by such taking or otherwise), such as without
limitation, any award for change of grade of streets;
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(ii) all judgments, awards and settlements hereafter made, and all
insurance proceeds hereafter paid for any damage to the Mortgaged Property, and all unearned
insurance premiums on any insurance policies maintained by the Mortgagor pursuant to this
Mortgage;
and
(iii) all awards and refunds hereafter made with respect to any Imposition;
(iv) the estate, right, title, interest, privilege, claim or demand
whatsoever of Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged
Property .
The term Mortgaged Property includes any part of the foregoing property described as Mortgaged
Property, and all proceeds, products, replacements, improvements, betterments, extensions,
additions, substitutions, renewals, accessories, and appurtenances thereto and thereof.
(q) Mortgagee: Pinellas County Industrial Development Authority, and its
successors and assigns, including but not limited to Bank of America, N.A.
(r) Mortgagor: PACT, Inc.
(s) Obligations: Any and all of the indebtedness, liabilities, covenants,
promises, agreements, terms, conditions, and other obligations of every nature whatsoever,
whether joint or several, direct or indirect, absolute or contingent, liquidated or unliquidated, of
Mortgagor to Mortgagee, evidenced by, secured by, under and as set forth in the Note, this
. Mortgage or the other Bond Documents.
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(t) Partnership: Any general or limited partnership, joint venture, or other
form of partnership, howsoever designated.
(u) Permitted Title Exceptions: Those matters, if any, described in a title report
provided to Bank of America, N,A. (the "Bank") prior to the date of issuance of the Note and
acknow ledged by the Bank in writing.
(v) Person: Any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, government, or agency or political
subdivision thereof, or any other form of entity .
(w) Personal Property: All of the following property of Mortgagor whether now
owned or existing, or hereafter acquired or arising, whether located in, on, pertaining to, used or
intended to be used in connection with or resulting or created from the ownership, development,
management, or operation of the Land or otherwise:
(i) all Improvements (to the extent same are not deemed to be real
property) and landscaping;
(ii) all Fixtures (to the extent same are not deemed to be real property)
and goods to become Fixtures;
(iii) all accounts, accounts receivable, other receivables, contract rights,
chattel paper, instruments and documents, excluding all Pledges; any other obligations or
indebtedness owed to Mortgagor from whatever source arising; all rights of Mortgagor to receive
any performance or any payments in money or kind; all guaranties of the foregoing and security
therefor; all of the right, title and interest of Mortgagor in and with respect to the goods, services,
or other property that gave rise to or that secure any of the foregoing, and all rights of Mortgagor
as an unpaid seller of goods and services, including, but not limited to, the rights to stoppage in
transit, replevin, reclamation, and resale;
(iv) all goods, including without limitation, all machinery, equipment,
furniture, furnishings, building supplies and materials, appliances, business machines, tools,
aircraft and motor vehicles of every kind and description, and all warranties and guaranties for any
of the foregoing;
(v) all inventory, merchandise, raw materials, parts, supplies,
work-in-process and finished products intended for sale, of every kind and description, in the
custody or possession, actual or constructive, of Mortgagor including such inventory as is
temporarily out of the custody or possession of Mortgagor, and any returns upon any accounts and
other proceeds resulting from the sale or disposition of any of the foregoing, including, without
limitation, raw materials, work-in-process, and finished goods;
(vi) all general intangibles, including without limitation, corporate or
other business records and books, computer records whether on tape, disc or otherwise stored,
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blueprints, surveys, architectural or engineering drawings, plans and specifications, trademarks,
tradenames, goodwill, telephone nwnbers, licenses, governmental approvals, franchises, permits,
payment and performance bonds, tax refund claims, and agreements with utility companies,
together with any deposits, prepaid fees and charges paid thereon;
(vii) all Leases and Rents (to the extent same are not deemed to be real
property) ;
(viii) all judgments, awards of damages and settlements from any
condemnation or eminent domain proceedings regarding the Land, the Improvements or any of
the Mortgaged Property;
(ix) all insurance policies required by this Mortgage or the Bond
Documents, the unearned premiums therefor and all loss proceeds thereof;
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(x) all other personal property, including without limitation, management
contracts, construction contracts, architectural contracts service contracts, plans and specifications,
engineering contracts, advertising contracts, contracts for purchase and sale of any of the
Mortgaged Property, purchase orders, equipment leases, monies in escrow accounts, reservation
agreements, prepaid expenses, deposits and down payments with respect to the sale or rental of
any of the Mortgaged Property, options and agreements with respect to additional real property
for use or development of the Mortgaged Property, end-loan commitments, abstracts of title, all
brochures, advertising materials, condominium documents and prospectuses; and
(xi) all proceeds, products, replacements, additions, betterments,
extensions, improvements, substitutions, renewals and accessions of any and all of the foregoing.
(x) Pledges: All promises or other expression of intent, including a pledge or
subscription agreement, whether written or oral, and whether now or hereafter existing, by any
Person to give, payor contribute, whether by inter vivos gift, bequest, devise or otherwise, to the
Borrower money or other property for the Borrower's use.
(y) Rents: All of the rents, royalties, issues, revenues, income, profits, security
deposits and other benefits whether past due, or now or hereafter arising from the Mortgaged
Property and the occupancy, use and enjoyment thereof.
(z) Site Lease: The Lease, dated March 7,2001, between City of Clearwater,
Florida, and PACT, Inc., recorded in Official Records Book , Page , et ~., Public
- -
Records of Pinellas County, Florida.
1.2. Rules of Construction. The use of any gender shall include all other genders. The
singular shall include the plural and the plural shall include the singular. The word "or" is not
exclusive and the use of the word "and" may be conjunctive or disjunctive in the sole and absolute
. discretion of Mortgagee. The captions of Articles, Sections and Subsections of this Mortgage are
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for convenient reference only, and shall not affect the construction or interpretation of any of the
terms and provisions set forth herein.
1.3. Security Agreement. This Mortgage constitutes a "Security Agreement" within the
meaning of and shall create a security interest under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida, with respect to the Fixtures, Leases, Rents and
Personal Property. A carbon, photographic or other reproduction of this Mortgage or of any
financing statement shall be sufficient as a financing statement. The debtor's principal place of
business and the secured party's address is set forth in the introduction to this Mortgage,
ARTICLE II
GRANT
2.1. Grant. For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and to secure the payment, observance, performance and discharge of
the Obligations, Mortgagor does by these presents give, transfer, grant, bargain, sell, alien,
remise, release, assign, mortgage, hypothecate, deposit, pledge, set over, confirm, convey and
warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and to the Site Lease
and the Mortgaged Property, whether now owned or held or hereafter acquired by Mortgagor,
subject, however, to the Permitted Title Exceptions, to have and to hold the Mortgaged Property
unto Mortgagee, its successors and assigns forever.
2.2 Condition of Grant. Subject to the provisions of this Mortgage, the condition of
these presents is such that if Mortgagor shall pay, observe, perform and discharge the Obligations,
or cause same to be paid, observed, performed and discharged in strict accordance with the terms
thereof, then this Mortgage and the estates, interests, rights and assignments granted hereby shall
be null and void, but otherwise shall remain in full force and effect.
2.3 Subrogation. The Mortgagee is hereby subrogated to the claims and liens of all
parties whose claims or liens are fully or partially discharged or paid with the proceeds of the
indebtedness secured by this Mortgage notwithstanding that such claims or liens may have been
canceled and satisfied of record.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
3.1 Assignment. The Mortgagor does hereby absolutely and unconditionally assign and
transfer to Mortgagee all of Mortgagor's estate, right, title and interest in and to the Leases and
Rents, to have and to hold the Leases and Rents unto Mortgagee, its successors and assigns
forever.
3.2 Payment of Rents to Mortgagor. as trustee. until Default. So long as no Event of
Default has occurred and which, after notice and any applicable grace period, remains uncured,
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Mortgagor may collect, receive and accept the Rents as they become due and payable. Upon the
occurrence of an Event of Default and, after reasonable notice to and failure by Mortgagor to cure
the same within a reasonable period, Mortgagee may, to the extent permitted by law at its option,
remove the Mortgagor as trustee for the collection of the Rents and appoint any other person
including, but not limited to, itself as a substitute trustee to collect, receive, accept and use all such
Rents in payment of the Obligations, in such order as Mortgagee shall elect in its sole and absolute
discretion, whether or not Mortgagee takes possession of the Mortgaged Property, Mortgagor
hereby directs each of the respective tenants under the Leases, and any rental agent, to pay to
Mortgagee all such Rents, as may now be due or shall hereafter become due, upon demand for
payment thereof by Mortgagee without any obligation on the part of any such tenant or rental
agent to determine whether or not an Event of Default has in fact occurred. Upon an Event of
Default, the permission hereby given to Mortgagor to collect, receive and accept such Rents as
trustee shall, to the extent permitted by law, terminate and such permission shall not be reinstated
upon a cure of the Event of Default without Mortgagee's specific written consent, Further, upon
an Event of Default, Mortgagor shall immediately turn over to Mortgagee all Rents in the actual
or constructive possession of Mortgagor, its affiliates, contractors, or its agents, together with an
accounting thereof. Exercise of Mortgagee's rights under this Section, and the application of any
such Rents to the Obligations, shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant hereto, but shall be cumulative and in addition to all other
rights and remedies of Mortgagee.
3.3 Provisions of Leases. All Leases with a duration of over 30 days shall be inferior
and subordinate to the lien of this Mortgage and the terms of each Lease shall so expressly
provide.
3.4 No Obligation of Mortgagee. The assignment contained in Section 3.1 shall not
be deemed or construed to constitute Mortgagee as a mortgagee in possession of the Mortgaged
Property nor shall it obligate Mortgagee to take any action or to incur expenses or perform or
discharge any obligation, duty or liability of Mortgagor under any Lease.
3.5 Cumulative Remedies. Each and every right, remedy and power granted to
Mortgagee by this Article shall be cumulative and in addition to every other right, remedy and
power given by the Bond Documents and now or hereafter existing in equity, at law, or by virtue
of statute or otherwise. The failure of Mortgagee to avail itself of any of its rights, remedies and
powers shall not be construed or deemed to be a waiver thereof.
3.6 Notification of Mortgagee's Rights. Mortgagee shall have the right, but not the
obligation, at any time and from time to time, to notify any tenant under any Lease of the rights
of Mortgagee as provided in this Article ill and Mortgagor, upon demand from Mortgagee, shall
confirm to such tenant the existence of such rights,
3.7 Attorney-in-Fact. Upon the occurrence of and during the continuation of an Event
of Default, to further effectuate Mortgagee's rights under this Article Ill, Mortgagor hereby to the
extend permitted by law constitutes and irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, which appointment is coupled with an interest, with full power of substitution,
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and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said
attorney-in-fact, to (i) collect and receive the Rents and to issue receipts therefor, (ii) to make,
enter into, extend, modify, amend, terminate, consent to the cancellation or surrender of any
Lease, or permit any tenant to assign or sublet its rights thereunder, (iii) to execute, acknowledge
and deliver any and all instruments and documents that Mortgagee may deem necessary or proper
to implement its rights as provided in this Article III, and (iv) to perform and discharge any and
all obligations and undertakings of Mortgagor under any Lease.
3.08 Other Assignments. Mortgagor shall not further assign or transfer the Leases or
Rents except in favor of Mortgagee as provided in this Article III, and shall not create or permit
to be created or to remain, any mortgage, pledge, lien, encumbrance, claim, or charge on the
Leases or Rents. Any transaction prohibited under this Section shall be null and void.
3.09 Section 697.07 of the Florida Statutes. The assignments of Leases and Rents
contained in this Mortgage are intended to provide Mortgagee with all the rights and remedies of
mortgagees pursuant to Section 697,07 of the Florida Statutes (hereinafter "Section 697.07"), as
may be amended from time to time. However, in no event shall this reference diminish, alter,
impair, or affect any other rights and remedies of Mortgagee, including but not limited to, the
appointment of a receiver as provided in Article VIII, Section 8.1 herein, nor shall any provision
in this Section 3.13 diminish, alter, impair or affect any rights or powers of the receiver in law
or equity or as set forth in Article VIII, Section 8.1 herein. In addition, this assignment shall be
fully operative without regard to value of the Mortgaged Property or without regard to the
adequacy of the Mortgaged Property to serve as security for the obligations owed by Mortgagor
to Mortgagee, and shall be in addition to any rights arising under Section 697.07. Further, except
for the notices required hereunder, if any, Mortgagor waives any notice of default or demand for
turnover of rents by Mortgagee, together with any rights under Section 697.07 to apply to a court
to deposit the Rents into the registry of the court or such other depository as the court may
designate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Mortgagor hereby represents and warrants to
Mortgagee that:
4.2 Organization. COl:porate Power. Partnership Power. Etc. Mortgagor (A) is duly
organized, validly existing and in good standing as a non-stock corporation not-for-profit under
the laws of the State, (B) has the corporate power and authority to own its properties and to carry
on its business as now being conducted, (C) is qualified to do business in the State, (D) to the best
of its knowledge, is in compliance with all Govermnental Requirements, and (E) has not amended
or modified its articles or certificate of incorporation or its bylaws except as previously disclosed
in writing to Mortgagee prior to the execution hereof.
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4.3 Validity of Loan Documents. (i) The execution, delivery and performance by
Mortgagor of the Bond Documents to which it is a party, and the borrowing evidenced by the
Note, (A) are within the powers and purposes of Mortgagor, (B) have been duly authorized by all
requisite action of Mortgagor, (C) do not require the approval of any Governmental Authority
other than the Mortgagee and the City, and (D) will not violate any Governmental Requirement,
the articles of incorporation and bylaws or the partnership agreement of Mortgagor or any
indenture, agreement or other instrument to which Mortgagor is a party or by which it or any of
its property is bound, or be in conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other instrument, or result
in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of its property or assets, except as contemplated by the provisions of the Bond Documents;
and (ii) the Bond Documents to which it is a party, constitute the legal, valid and binding
obligations of Mortgagor in accordance with their respective terms.
4.4 Financial Statements. All balance sheets, statements of profit and loss, and other
financial data that have been given to Mortgagee with respect to the Mortgagor, (i) are complete
and correct in all material respects, (ii) accurately present the financial condition of said party as
of the dates, and the results of its operations, for the periods for which the same have been
furnished, and (iii) have been prepared in accordance with generally accepted accounting
principles consistently followed throughout the periods covered thereby; all balance sheets disclose
all known liabilities, direct and contingent, as of their respective dates; and there has been no
change in the condition of the Mortgagor, [mancial or otherwise, since the date of the most recent
financial statements given to Mortgagee, other than changes in the ordinary course of business,
none of which changes has been materially adverse.
4.5 Other Agreements. Mortgagor is not a party to any agreement or instrument
materially and adversely affecting it or its present or proposed businesses, properties or assets,
operation or condition, financial or otherwise, except for the Site Lease and the Facility Use
Agreement between the City and Mortgagor, dated as of March 7, 2001 (the "Facility Use
Agreement"), and Mortgagor is not in material default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions set forth in any agreement
or instrument to which it is a party, including, but not limited to, the Site Lease and the Facility
Use Agreement.
4.6 Other Information. All other information, including reports, financial statements,
certificates, papers, data and otherwise, given and to be given to Mortgagee with respect (i) to
Mortgagor, (ii) to the Loan and (iii) to others obligated under the terms of the Bond Documents,
are true, accurate and correct in all material respects and complete.
4.7 Title. Mortgagor is indefeasibly seized of and has and will have a valid leasehold
interest in the Land, pursuant to the Site Lease, and in the Improvements, free and clear of any
and all mortgages, liens, encumbrances, claims, charges, equities, covenants, conditions,
restrictions, easements, rights-of-way and all other matters affecting the Land and Improvements,
whether or not of record, except for the Pennitted Title Exceptions. Mortgagor has and will have
good, absolute and marketable title to the Personal Property all free and clear of any and all liens,
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charges, encumbrances, security interests and adverse claims whatsoever, except those in favor
of Mortgagee. Mortgagor will preserve its leasehold interest in and title to the Mortgaged
Property and will forever warrant and defend the same to Mortgagee and will forever warrant and
defend the validity and priority of the lien of this Mortgage against the claims of all persons and
parties whomsoever.
4.8 No Violations. To the best knowledge of Mortgagor, no Governmental
Requirement and no covenant, condition, restriction, easement or similar matter affecting the Land
or Improvements has been violated, and Mortgagor has not received any notice of violation from
any Governmental Authority or any other person with respect to any of the foregoing matters.
4.9 Taxes. Mortgagor has filed all federal, state, county and municipal income tax
returns required to have been filed by it, and has paid all taxes that have become due pursuant to
such returns, pursuant to any assessments received by it or pursuant to law, and Mortgagor does
not know of any basis for additional assessment with respect to such taxes or additional taxes.
.
4.10 Litigation. There are no judgments outstanding against Mortgagor and there is no
action, suit, proceeding, or investigation now pending (or to the best of Mortgagor's knowledge
after diligent inquiry, threatened) against, involving or affecting Mortgagor or the Mortgaged
Property, or any part thereof, at law, in equity or before any Governmental Authority that if
adversely determined as to the Mortgaged Property or as to Mortgagor would result in a material
adverse change in the business or fInancial condition of the Mortgagor or Mortgagor's operation
and ownership of the Mortgaged Property, nor to the best knowledge of Mortgagor, is there any
basis for such action, suit, proceeding or investigation.
4.11 Utilities. There is available to the Land and Improvements through public or
private easements or rights-of-way abutting or crossing the Land (which would inure to the benefit
of Mortgagee in case of enforcement of this Mortgage) a water supply and a sanitary sewer
service, and electric, gas (if applicable) and telephone service, all of sufficient capacity to serve
the needs of the Land and Improvements according to their intended purpose.
4.12 Condition of Mortgaged Property. The Mortgaged Property or any part thereof,
now existing, is not damaged or iyUured as a result of any fire, explosion, accident, flood or other
casualty. The Improvements, if any, as of the date of this Mortgage, are free of any material
defects in material, structure and construction and to the best of Mortgagor's knowledge do not
violate any Governmental Requirements. To the best of Mortgagor's knowledge, there is no
existing, proposed or contemplated plan to modify or realign any street or highway or any
existing, proposed or contemplated eminent domain proceeding that would result in the taking of
all or any part of the Mortgaged Property or that would adversely affect the use or the operation
of the Mortgaged Property.
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4.13 Zoning. The Land is zoned so as to permit the Land and Improvements to be used
as a performing arts center, which is their intended purpose.
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4.14 No Default. To the best of Mortgagor's knowledge, no default or event of default
exists under any of the Bond Documents; and no event has occurred and is continuing which, with
notice or the lapse of time, or both, would constitute a default under any provision thereof.
4.15 Fictitious Name Statute. Mortgagor, if applicable, has duly complied with all of
the requirements of the Florida Fictitious Name Statute.
4.16 Junior Mortgage. No Junior Mortgage exists as of the date hereof.
4.17. Environmental Contamination/Hazardous Material. To the best of Mortgagor's
knowledge, Mortgagor and the Mortgaged Property are in full compliance with all Environmental
Laws, and there are no civil, criminal or administrative actions, suits, demands, claims, hearings,
notices or demand letters, notices of violation, investigations, or proceedings pending or
threatened against the Mortgagor or the Mortgaged Property relating in any way to any
Environmental Law or any agreement, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved under any Environmental Law, To the
knowledge of Mortgagor, there have never been nor are there currently any Hazardous Material
located on, in, or under the Mortgaged Property or used in connection therewith, and Mortgagor
has never used the Mortgaged Property for the manufacture, processing, distribution, use,
transport, handling, treatment, storage, disposal, emission, discharge or release of any Hazardous
Material. No notice or advice has been received by Mortgagor of any condition or state of facts
that would be contributing to a claim of pollution or any other damage to the environment by
reason of the conduct of any business on the Mortgaged Property or operation of the Mortgaged
Property, whether past or present.
4.18 Facilities For Handicapped: The Improvements will upon completion of the Project
comply with all legal requirements regarding access and facilities for handicapped or disabled
persons .
4.19 Representations and Warranties in Other Bond Documents. All of the
representations and warranties of the Mortgagor contained in the other Bond Documents are true
and correct in all material respects.
4.20 Reliance on Representations. The Mortgagor acknowledges that the Mortgagee has
relied upon the Mortgagor's representations, has made no independent investigation of the truth
thereof, is not charged with any knowledge contrary thereto that may be received by an
examination of the public records in Tallahassee, Florida and wherein the Land is located, or that
may have been received by any officer, director, agent, employee or shareholder of Mortgagee.
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ARTICLE V
AFFIRMATIVE COVENANTS
5.1 Payment and Performance. Mortgagor shall promptly pay and punctually perform,
or shall cause to be promptly paid and punctually performed, all of the Obligations as and when
due and payable.
5.2 Existence, Mortgagor shall preserve and keep in full force and effect its existence,
rights, franchises, trade names and qualification to transact business in the State,
5.3 Compliance With Laws. Mortgagor shall promptly and faithfully comply with,
conform to and obey all Governmental Requirements that may be applicable to Mortgagor or to
the Mortgaged Property or to the use or manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of the Mortgaged Property, whether or not such
Governmental Requirement or rule or regulation shall necessitate structural changes or
improvements or interfere with the use or enjoyment of the Mortgaged Property,
5.4 Impositions. Mortgagor shall pay all Impositions on the Mortgaged Property and
all taxes lawfully levied or assessed upon this Mortgage, the Note, the Bond and the Obligations,
or any of them. In the event of the passage, after the date of this Mortgage, of any law (i) making
it illegal for the Mortgagor to pay the whole or any part of the Impositions, or charges or liens
herein required to be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and
all taxes levied or assessed upon this Mortgage, the Note, the Bond or the Obligations or the
interest in the Mortgaged Property represented by this Mortgage unlawful, or (iii) rendering the
covenants for the payment of the matters set forth in Subparts (i) and (ii) of this Subsection by
Mortgagor legally inoperative, the Mortgagor shall pay, upon demand, the entire unpaid
Obligations notwithstanding anything in the Note, this Mortgage, the Bond or the other Loan
Documents to the contrary.
Mortgagor shall pay any ad valorem taxes lawfully imposed on the Mortgaged Property
on or before the date of delinquency. Mortgagor shall also pay all other Impositions before same
shall become delinquent, whichever is sooner.
5.5 Insurance. Until the Obligations shall have been fully discharged by Mortgagor,
Mortgagor shall maintain or cause to be maintained, at Mortgagor's cost and expense, the
following insurance coverages in full force and effect at all times throughout the term of the Loan:
(a) Hazard Insurance. Mortgagor shall keep the Improvements and all Personal
Property which now or hereafter constitute part of the Mortgaged Property insured at all times
against loss or damage by fire and other hazards included within the term "special causes of loss,"
"all risk" or "extended coverage" and against such other hazards as Mortgagee may reasonably
require in the full insurable value thereof (or such lesser amount as Mortgagee may authorize in
. writing).
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(b) Liability Insurance. Mortgagor will obtain and keep in full force a "Broad
Form Comprehensive General Liability" insurance coverage for Mortgagor in the minimum
coverage reasonably acceptable to the Mortgagee.
(c) Flood Insurance. If at any time the Land or any portion thereof is located in
a "Flood Hazard Area" pursuant to the Flood Disaster Protection Act of 1973 or any successor
or supplemental act thereto, flood insurance in the maximum amount available or, if less, the full
insurable replacement value of the Mortgaged Property.
(d) Builder's Risk Insurance. During any construction activity, a "special causes
of loss" (formerly known as "all risk"), non-reporting, completed value builder's risk insurance
policy, which policy shall include Agreed Amount, Replacement Cost, Permit to Occupy and
VandalismlMalicious Mischief Endorsements.
(e) Other Insurance. Boiler and machinery insurance, worker's compensation
insurance, wind damage insurance, and other insurance coverages as Mortgagee may reasonably
reqUIre.
The policies of insurance shall (i) be from companies and in coverage amounts
reasonably acceptable to Mortgagee, (ii) contain a standard mortgagee clause identifying the
Mortgagee as "Bank of America, N .A., ISA A TIMA" in favor of Mortgagee naming Mortgagee
as a mortgagee and including a lender's loss payee clause in such policy, as applicable (iii) not be
terminable or modified without thirty (30) days' (if obtainable, but in any event, without at least
10 days) prior written notice to Mortgagee, and (iv) be evidenced by original policies or certified
copies of policies or evidence of insurance on ACORD 27 (for builder's risk) and/or ACORD 255
(for general liability) form of certificate, deposited with Mortgagee, as Mortgagee may elect, to
be held by Mortgagee until the Obligations shall have been fully paid and discharged. Mortgagor
shall furnish Mortgagee satisfactory evidence of payment of all premiums required and similar
evidence of renewal or replacement coverage not later than thirty (30) days prior to the date any
coverage will expire.
All policies shall indicate that notices related to such insurance shall be sent to
Mortgagee at the following address or such other address as set forth in a notice from Mortgagee
to Mortgagor:
Bank: of America, N .A.
P.O. Box 40329
Jacksonville, Florida 32203-0329
5.6 Restoration Following Casualty. (a) If all or any part of the Mortgaged Property
shall be damaged or destroyed by a casualty with a loss claim in excess of $50,000, Mortgagor
shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and
Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and
to settle, adjust or compromise any claims for loss, damage or destruction under any policies of
insurance required under this Mortgage. All proceeds of insurance, as provided in Section 5.5,
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shall be paid to Mortgagor and shall be applied first to the payment of all costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagor in
obtaining such proceeds, and second, at the option of Mortgagor, either to the payment of the
Obligations whether or not due, in such order as Mortgagor may elect, or to the restoration,
repair, or replacement of the Mortgaged Property.
(b) If all or any of the Mortgaged Property shall be damaged or destroyed by
a casualty not covered by insurance under Section 5,5, or, if so covered, the insurer fails or
refuses to pay the claim within ninety (90) days following the filing thereof, Mortgagor shall
immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and
diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior to the casualty. During the period
of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe
and comply with all of the Obligations.
(c) If any work required to be performed under Subsections (a) or (b) above,
or both, shall involve an estimated expenditure of more than $500,000,00, no such work shall be
undertaken until plans and specifications therefor, prepared by an architect satisfactory to
Mortgagee, have been submitted to and approved by Mortgagee.
5.7 Condemnation. Mortgagor shall immediately notify Mortgagee upon obtaining any
knowledge of the institution of any proceedings for the condemnation of the Mortgaged Property
or any part thereof. If all, or any part of the Mortgaged Property with a value in excess of 50%
of the total value of the Mortgaged Property, shall be damaged or taken through condemnation
(which term when used in this Mortgage shall include any damage or taking by any Governmental
Authority and any transfer by private sale in lieu thereof, either temporarily or permanently),
Mortgagee at its option may declare all of the unpaid Obligations to be immediately due and
payable, and upon ten (10) days written notice from Mortgagee to Mortgagor all such Obligations
shall immediately become due and payable as fully and to the same effect as if such date were the
date originally specified for the final payment or maturity thereof. Except as described in the
preceding sentence, in which case the Mortgagee shall be entitled to all compensation, awards and
other payments resulting from such condemnation to the extent of the amount of Obligations
hereby secured, the Mortgagor shall be entitled to all compensation, awards and other payments
resulting from such condemnation and is hereby authorized to commence, appear in and prosecute,
any action or proceeding relating to any condemnation, and to settle or compromise any claim in
connection therewith. All such compensation, awards, damages, claims, rights of action and
proceeds and the right thereto shall, be applied first to the payment of all costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagor in
connection with any action or proceeding under this Section 5.7, and second, at the option of
Mortgagor, either to the payment of the Obligations whether or not due, in such order as
Mortgagor may elect, or to the restoration, repair or alteration of the Mortgaged Property. If any
restoration, repair or alteration of the Mortgaged Property shall involve an estimated expenditure
of more than $500,000.00, same shall not be commenced until plans and specifications therefor,
prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by
Mortgagee.
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5.8 Tax and Insurance Escrow. Supplementing the provisions of Sections 5.4 and 5.5
hereof, and if required by Mortgagee, in the event of any default by Mortgagor in the payment of
any such Impositions, Mortgagor shall pay to Mortgagee on the payment date of installments of
interest as provided in the Note, together with and in addition to such installments of interest, an
installment of the Impositions and insurance premiums for such insurance as is required hereunder,
next due on the Mortgaged Property in an amount sufficient, as estimated by Mortgagee, to
accumulate the sum required to pay such Impositions and insurance, as applicable, thirty (30) days
prior to the due date thereof, Amounts held hereunder shall not be, nor be deemed to be, trust
funds, but may be commingled with the general funds of Mortgagee, and no interest shall be
payable with respect thereto. Upon demand of Mortgagee, Mortgagor shall deliver to Mortgagee,
within ten (10) days after such demand, such additional money as is necessary to make up any
deficiencies in the amounts necessary to enable Mortgagee to pay such Impositions and insurance
premiums when due. In case of an Event of Default, Mortgagee may apply any amount under this
Section remaining to Mortgagor's credit to the reduction of the Obligations, at such times and in
such manner as Mortgagee shall determine,
5.9 Repair. Mortgagor shall keep the Mortgaged Property in good order and condition
and make all necessary or appropriate repairs and replacements thereof and betterments and
improvements thereto, ordinary and extraordinary, foreseen and unforeseen, and use its best
efforts to prevent any act that might materially impair the value or usefulness of the Mortgaged
Property.
5.10 Inspection. Mortgagor shall permit Mortgagee and its agents to inspect the
Mortgaged Property at any time during normal business hours and at all other reasonable times
and after reasonable notice received by Mortgagor from Mortgagee.
5,11 Contest of Tax Assessments. Etc. After prior written notice to Mortgagee,
Mortgagor, at its own expense, may contest by appropriate legal proceedings, promptly initiated
and conducted in good faith and with due diligence, the amount, validity or application, in whole
or in part, of (a) any of the Governmental Requirements referred to in Section 5.3, or (b) any
Imposition; provided that: (i) in the case of any unpaid Imposition, such proceedings shall
suspend the collection thereof from Mortgagor and from the Mortgaged Property, (ii) the
Mortgaged Property or any part thereof will not be in danger of being sold, forfeited, terminated,
canceled or lost, (iii) the use of the Mortgaged Property or any part thereof for its present or
future intended purpose or purposes will not be interrupted, lost or terminated, (iv) Mortgagor
shall have set aside adequate reserves with respect thereto, and (v) Mortgagor shall have furnished
such security as may be required in the proceedings or as may be reasonably requested by
Mortgagee.
5.12 Expenses. Mortgagor shall pay all reasonable costs and expenses in connection
with the Loan and the preparation, execution, and delivery of the Bond Documents including, but
not limited to, reasonable fees and disbursements of counsel appointed by Mortgagee, and all
recording costs and expenses, documentary stamp tax and intangible tax, if lawfully required on
the entire amount of funds disbursed under the Loan, and other taxes, surveys, appraisals,
premiums for policies of title and other insurance and all other fees, costs and expenses, if any,
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set forth in the Commitment Letter, the Loan Agreement, the Bond Purchase Agreement or
otherwise connected with the Loan transaction.
(a) Mortgagor shall payor reimbursement Mortgagee for all reasonable
attorneys' fees paid or incurred by Mortgagee pursuant to this Mortgage including but not limited
to those costs, charges, expenses and fees paid or incurred for the payment of the Impositions,
insurance, completion of construction, repairs, appraisal fees, environmental assessment fees, or
any other fees paid or incurred in any action, proceeding or dispute of any kind in which
Mortgagee is a party arising out of the occurrence of an Event of Default, including, but not
limited to, the foreclosure or other enforcement of this Mortgage, any condemnation or eminent
domain action involving the Mortgaged Property or any part thereof, any action to protect the
security hereof, or any proceeding in probate, reorganization, bankruptcy, arbitration, or
forfeiture in rem. All such amounts paid or incurred by Mortgagee, together with interest thereon
at the Default Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and
shall be due and payable by Mortgagor immediately, whether or not there be notice or demand
therefor.
.
(b) Any reference in this Mortgage to attorneys' or counsels' fees paid or
incurred by Mortgagee shall be deemed to include reasonable paralegals' fees and legal assistants I
fees. Moreover, wherever provision is made herein for payment of attorneys' or counsels' fees
or expenses incurred by the Mortgagee, said provision shall include, but not be limited to, such
fees or expenses incurred in any and all judicial, bankruptcy, reorganization, administrative, or
other proceedings, including appellate proceedings, whether such fees or expenses arise before
proceedings are commenced or after entry of a final judgment provided, that Mortgagee prevails
in any such action.
5.13 Preservation of Agreements. Mortgagor shall preserve and keep in full force and
effect all agreements, approvals, permits and licenses necessary for the development, use and
operation of the Mortgaged Property for its intended purpose or purposes.
5.14 Books and Records. The Mortgagor shall keep and maintain, at all times, full, true
and accurate books of accounts and records, adequate to correctly reflect the results of the
operation of the Mortgaged Property. The Mortgagee shall have the right to examine such books
and records and to make such copies or extracts therefrom as the Mortgagee shall require upon
reasonable notice from Mortgagee.
5.15 Estoppel Affidavits. Mortgagor, within ten (10) days after written request from
Mortgagee, shall furnish a written statement, duly acknowledged, setting forth the unpaid principal
balance of, and interest on, the Obligations secured by this Mortgage, and whether or not any
off-sets or defenses exist thereto.
.
5.16 Indemnification. Mortgagor shall at its own expense, and does hereby agree to,
protect, indemnify, reimburse, defend and hold harmless Mortgagee and its directors, officers,
agents, employees attorneys, successors and assigns from and against any and all liabilities
(including strict liability), losses, suits, proceedings, settlements, judgments, orders, penalties,
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fines, liens, assessments, claims, demands, damages, injuries, obligations, costs, disbursements,
expenses or fees, of any kind or nature (including attorneys' fees and expenses paid or incurred
in connection therewith) arising out of or by reason of (i) an incorrect legal description of the
Land; (ii) any action, or inaction of Mortgagor in connection with the Note, this Mortgage, the
other Bond Documents or the Mortgaged Property; (iii) the construction of any Improvements;
(iv) the use and operation of the Mortgaged Property; (v) any acts or omissions of Mortgagor on
or about the Mortgaged Property regarding the contamination of air, soil, surface waters or
groundwaters over, on or under the Mortgaged Property; (vi) the presence, whether present or
future, of any Hazardous Material on, in or under the Mortgaged Property; or (vii) any present
or future events, conditions, circumstances, activities, practices, incidents, actions or plans
involving the manufacture, processing, distribution, use, transport, handling, treatment, storage,
disposal, cleanup, emission, discharge, seepage, spillage, leakage, release or threatened release
of any Hazardous Material on, in, under or from the Mortgaged Property, in connection with
Mortgagor's operations on the Mortgaged Property, or otherwise; all of the foregoing regardless
of whether within the control of Mortgagee.
The indemnifications of this Section 5.16 shall survive the full payment and performance
of the Obligations and the satisfaction of this Mortgage period until such time as all applicable
statutes of limitations during which a claim could be made against Mortgagee which would be the
subject of indemnification under this Section 5.16 shall have expired.
5.17 Further Assurances. Mortgagor, at its sole expense, upon the request of
Mortgagee, shall execute, acknowledge and deliver such further instruments and do such further
acts as may, in the reasonable opinion of the Mortgagee, be necessary, desirable, or proper to
carry out more effectively the purpose of this Mortgage and to subject to the lien hereof any
property intended by the terms hereof to be covered hereby, including, without limitation, any
proceeds, renewals, additions, substitutions, replacements, products, betterments, accessions and
appurtenances thereto and thereof.
5.18 Junior Mortgagees) and Rights of Mortgagee. (a) Mortgagor shall, with respect
to any Junior Mortgage, (i) promptly observe and perform all of the covenants and conditions
contained in the Site Lease and the Junior Mortgage, (ii) duly and promptly make all payments
required by the terms of the Junior Mortgage, (iii) promptly notify Mortgagee in writing upon
receipt by Mortgagor of any notice that Mortgagor is in default under the Junior Mortgage or that
an event has occurred which with due notice or the lapse of time, or both, would constitute a
default under the Junior Mortgage, and to promptly cause a copy of each such notice given by the
holder thereof to be delivered to Mortgagee, and (iv) from time to time upon demand of
Mortgagee submit evidence to Mortgagee that Mortgagor has maintained and is maintaining the
Junior Mortgage in good standing. Upon receipt by Mortgagee of any such aforesaid notice,
Mortgagee may rely thereon even though the existence of such default or the nature thereof may
be questioned or denied by Mortgagor or by any party on behalf of Mortgagor.
(b) If Mortgagor fails to make any payment required under any Junior Mortgage
as and when due, or fails to perform any material condition, covenant, or term of the Junior
Mortgage, then Mortgagee may on behalf of Mortgagor, but without obligation to do so, and with
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reasonable notice to and demand upon Mortgagor, and without releasing Mortgagor from any
Obligation and without waiving any Event of Default hereunder, take any action Mortgagee deems
reasonably necessary or desirable to prevent or cure any such default by Mortgagor, including,
but without limitation, the right to pay any and all payments of principal and interest, insurance
premiums, taxes and assessments and other sums due or to become due under the Junior
Mortgage. Mortgagor hereby expressly grants to Mortgagee and agrees that Mortgagee and its
agents shall have the absolute and immediate right to enter upon the Land and the Improvements
or any part thereof to such extent and as often as Mortgagee deems reasonably necessary or
desirable in order to prevent or cure any such default by Mortgagor. All reasonable payments and
all reasonable costs and reasonable expenses incurred by Mortgagee in connection with any such
prevention or cure (including, without limitation, reasonable attorneys' fees and expenses),
together with interest thereon at the Default Rate from the date incurred by Mortgagee, shall be
secured by this Mortgage and shall be due and payable by Mortgagor immediately, whether or not
there be notice, demand, an attempt to collect same, or suit pending.
(c) Nothing in this Section 5.18 shall in any manner be construed as consent by
Mortgagee to the further encumbering or mortgaging of the Mortgaged Property, except for
Permitted Title Exceptions.
5.19 Financing Statements. Mortgagor shall execute and deliver to Mortgagee, in form
and substance satisfactory to' Mortgagee, such financing statements, continuation statements, and
such further assurances as Mortgagee may from time to time consider reasonably necessary to
create, perfect, preserve and maintain in full force and effect Mortgagee's lien upon the Fixtures,
Leases, Rents and Personal Property; and, Mortgagee, at the expense of Mortgagor, may cause
such statements and assurances to be recorded and rerecorded, filed and re-filed, in the name of
Mortgagor, and Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an interest, with full power of
substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option
of said attorney-in-fact, to execute and file any and all fmancing statements.
5.20 Withholding Taxes. (a) If under any applicable law or regulation or the
interpretation thereof by any Governmental Authority charged with the administration thereof,
Mortgagor shall be required to make any withholding or deduction from any payment of the
Obligations (whether of principal, interest or otherwise) to be made by or on behalf of Mortgagor
to Mortgagee for or in respect of any present or future taxes, levies, imposts, duties, charges, or
fees of any nature (excepting only Mortgagee's income taxes of the United States of America and
its political subdivisions), the amount due to Mortgagee from Mortgagor in respect of such
payment shall be increased to the extent necessary to ensure that after making such withholding
or deduction and any withholdings or deductions required to be made in respect to any such
increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have
received had no such withholding or deduction been required to be made. In the event of any such
withholding or deduction, Mortgagor shall deliver to Mortgagee forthwith after receipt thereof the
official receipt or other official documentation evidencing the payment of the amount so withheld
or deducted.
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(b) If Mortgagor shall fail to make any withholding or deduction so required
to be made, Mortgagee reserves the right to make payment thereof to the appropriate
Governmental Authority. If Mortgagee makes such payment under any applicable law or
regulation or if as a result of the interpretation thereof by any Governmental Authority charged
with the administration thereof in respect of any such payment, whether of principal, interest or
otherwise made or to be made by Mortgagor, Mortgagee shall be required to pay any tax, levy,
impost, duty, charge or fee of any nature (excepting only Mortgagee's income taxes of the United
States of America and its political subdivisions), Mortgagor shall and does hereby indemnify
Mortgagee against and shall forthwith upon demand of Mortgagee pay to Mortgagee the amount
of such payment, together with any interest, penalties, and expenses in connection therewith, and
interest thereon at the Default Rate; and in the event any of the aforesaid amounts, interest,
penalties or expenses shall be subject to withholding or deduction, the amount thereof shall be
increased to the extent necessary to ensure that after making such withholding or deduction and
any withholdings or deductions in respect of any such increase, Mortgagee shall receive an amount
equal to the amount which Mortgagee would have received had no such withholding or deduction
been required to be made.
(c) Any increased amount required to be paid by Mortgagor in accordance with
the provisions of this Section 5.20 shall have the same character as the amount in respect of which
such increased amount is determined, but shall not (i) if characterized as principal, be applied in
reduction of the principal amount outstanding under the Obligations or (ii) if characterized as
interest, be applied in reduction of accrued, unpaid interest under the Obligations.
5.21 Hazardous Material. (a) Mortgagor shall immediately notify Mortgagee (which for
purposes of this Section 5.21, shall be deemed to include Pinellas County Industrial Development
Authority, regardless of any assignment by it of this Mortgage) orally and in writing (i) if
Mortgagor becomes aware of the presence of any Hazardous Material or other environmental
problem or liability on, in, under, released from or associated with the Mortgaged Property, or
(ii) if an Environmental Claim is then existing with respect to the Mortgaged Property. Mortgagor
shall forthwith transmit to Mortgagee all information it has received with respect to the
Environmental Claim.
(b) Mortgagor shall, at its own cost and expense, take any action necessary or
advisable for the cleanup of any Hazardous Material on, in, under, released from or associated
with the Mortgaged Property, including any removal, containment or remedial actions in
accordance with all applicable Environmental Laws, and shall payor cause to be paid all cleanup,
administrative, enforcement and other costs, expenses or fines which may be asserted against
Mortgagor, Mortgagee, the Mortgaged Property, or any other Person in connection therewith.
(c) Mortgagee shall have the right but not the obligation, and without any
limitation of Mortgagee's other rights under this Mortgage, after failure by Mortgage to enter onto
the Mortgaged Property or to take any action as it deems necessary or advisable to cleanup,
remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Material or any
Environmental Claim following receipt of any notice from any Person or Governmental Authority
asserting the existence of any Hazardous Material or an Environmental Claim pertaining to the
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Mortgaged Property or any part thereof which, if true, could result in an order, suit or other action
against Mortgagor or Mortgagee which, in the reasonable opinion of Mortgagee, could jeopardize
Mortgagee's security under this Mortgage. All reasonable costs and expenses incurred by
Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be
payable by Mortgagor upon demand.
.
(d) In the event the Mortgagee reasonably believes that there may be any
Hazardous Material or other environmental problem or liability associated with the Mortgaged
Property, Mortgagor shall, within thirty (30) days of Mortgagee's written request, cause to be
prepared an environmental assessment of the Mortgaged Property (but only if Mortgagee
reasonably suspects that grounds exist for an Environmental Claim) and, if required by Mortgagee,
an environmental assessment (as hereinafter defined) of the Mortgaged Property including
Hazardous Material waste management practices and Hazardous Material waste disposal sites
thereon. As used herein, the term "Environmental Assessment" means a report (including all
drafts thereof) of an environmental assessment of the Mortgaged Property of such scope (including
but not limited to the taking of soil borings and air and groundwater samples and other above and
below ground testing) as Mortgagee may reasonably request, by a consulting firm acceptable to
Mortgagee, made in accordance with Mortgagee's established guidelines and at Mortgagor's sole
cost and expense. Should Mortgagor fail to provide such Environmental Assessment within said
thirty (30) day period, Mortgagee shall have the right, but not the obligation, to retain an
environmental consultant to perform and prepare same. All costs and expenses incurred by
Mortgagee in the exercise of such rights shall be secured by this Mortgage and shall be payable
by Mortgagor upon demand or charged to Mortgagor's loan balance at the discretion of
Mortgagee.
5.22 Financial Reports. Etc. Mortgagor shall, at Mortgagor's sole cost and expense,
provide Mortgagee with any financial statements, financial reports, appraisals or other
documentation with respect to Mortgagor or the Mortgaged Property which may be required from
time to time by any Governmental Authority having regulatory authority over Mortgagee. Such
information shall be provided by Mortgagor within thirty (30) days after written request from
Mortgagee.
5.23 Performance of Bond Documents. Mortgagor shall duly and punctually perform
all covenants, terms and agreements expressed as binding upon it under all of the Bond
Documents.
5.24 Performance of Other Agreements. Mortgagor shall duly and punctually perform
all covenants, terms and agreements expressed as binding upon it under any Permitted Title
Exception, or any other agreement of any nature whatsoever binding upon it with respect to the
Mortgaged Property including, but not limited to the Site Lease.
.
5.25 Bond Purchase Agreement. The Loan evidenced by the Note and secured by this
Mortgage is to be disbursed in accordance with the terms and provisions of the Bond Purchase
Agreement. The Note, this Mortgage, the Bond Purchase Agreement and the Loan Agreement
shall always be taken and read together as constituting parts of one transaction. All sums
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disbursed pursuant to the terms of the Loan Agreement shall be secured by this Mortgage with the
same priority as if advanced on the date hereof. Mortgagor shall fully, duly and promptly
discharge each and every of its agreements contained in the Loan Agreement and comply with,
abide by and perform all of the provisions and conditions thereof.
ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations. Etc. Mortgagor shall not use the Mortgaged Property or knowingly
allow the same to be used or occupied for any unlawful purpose or in violation of any
Governmental Requirement or restrictive covenant covering, affecting or applying to the
ownership, use or occupancy thereof, or knowingly commit or permit or suffer any act to be done
or any condition to exist on the Mortgaged Property or any article to be brought thereon that may
be dangerous, or that may in any way increase any ordinary fire or other hazard, unless
safeguarded as required by law, or that may, in law, constitute a nuisance, public or private.
.
6.2 Care of the Mortgaged Property. (i) Mortgagor shall not commit or permit any
waste, impairment, or deterioration of the Mortgaged Property, or (except for the Project or as
may be provided for in the Loan Agreement) perform any clearing, grading, filling or excavation
of the Mortgaged Property, or make or permit to be made to the Mortgaged Property any
alterations or additions that would have the effect of materially diminishing the value thereof (in
Mortgagee's sole opinion) or take or permit any action that will in any way increase any ordinary
fire or other hazard arising out of the construction or operation thereof.
(ii) Mortgagor shall not, without the prior written consent of Mortgagee,
remove, demolish or substantially alter, or permit the removal, demolishment or substantial
alteration of, any Improvements on the Land involving an amount in excess of $750,000. In the
event such consent is given and if any work to be performed shall involve an estimated expenditure
of more than $750,000.00, no such work shall be undertaken until plans and specifications
therefor, prepared by an architect satisfactory to Mortgagee, shall have been submitted to and
approved by Mortgagee.
(iii) Mortgagor shall not permit any of the Fixtures or Personal Property to be
demolished or to be removed from the Land, without the prior written consent of Mortgagee. In
the event such consent is given, the Mortgagee may require that said Fixture or Personal Property
be replaced by an article of equal suitability and value, owned by Mortgagor free and clear of any
vendor's lien, chattel mortgage, or security interest of any kind, except such as may be approved
in writing by Mortgagee, and that such replacement article be encumbered by the lien of this
Mortgage. Notwithstanding the foregoing, the Mortgagor may remove or demolish any Fixture
or Personal Property without first obtaining the Mortgagee's prior written consent provided (i) the
value of such article does not exceed in value at the time of disposition thereof a total of
$500,000.00 in anyone year for all such items and (ii) that said article is replaced and subject to
. the lien of this Mortgage as aforesaid.
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6.3 Other Liens and Mortgages. (a) Mortgagor shall not, without the prior written
consent of Mortgagee, create or permit to be created or to remain, any mortgage, pledge,
construction lien or other lien, conditional sale or other title retention agreement, encumbrance,
claim, or charge on (whether prior or subordinate to the lien of this Mortgage or the other Bond
Documents) the Mortgaged Property or income therefrom, other than this Mortgage, the other
Bond Documents and the Permitted Title Exceptions. Any transaction prohibited under this
Section shall be null and void.
(b) Mortgagor shall not, without the prior written consent of Mortgagee, (i)
enter into any agreement either oral or in writing, whereby any permitted Junior Mortgage is
modified or amended in any manner whatsoever, (ii) permit the release of any guarantor or
modification of any guaranty affecting any permitted Junior Mortgage, or (iii) incur any additional
indebtedness secured thereby.
(c) Mortgagor shall not directly or indirectly, take, acquire, or permit to be
taken or acquired by any other party, any interest whatsoever in any permitted Junior Mortgage
without the prior written consent of Mortgagee.
(d) Notwithstanding any other provision of this Mortgage, Mortgagee shall be
permitted to grant a mortgage upon and/or security interest in all or any portion of the Mortgaged
Property provided that (i) Mortgagor shall have provided Mortgagee not less than 15 days prior
written notice of such encumbrance, including the forms of the loan agreement, note, mortgage
and/ or security agreement related thereto and such other information with respect to thereto as
shall be requested by Mortgagee, (ii) the instrument creating such mortgage and/or security
interest shall contain a subordination provision which shall be reasonably acceptable to Mortgagee,
and (iii) the amount of indebtedness secured by all such mortgages and/or security interest may
not exceed $2,000,000.
6.4 Transfer of Mortgaged Property. Except as may otherwise be expressly permitted
in the Bond Documents executed in connection with this Mortgage, Mortgagor shall not sell,
convey, or transfer or permit to be sold, conveyed or transferred any interest in the Mortgaged
Property or any part thereof. A contract to deed or agreement for deed, or an assignment or
encumbrance of a beneficial interest in any land trust, or a lease for all or substantially all of the
Land or Improvements shall constitute a transfer prohibited by the provisions of this Section and
shall be null and void.
6.5 Transfer of Other Assets. Mortgagor shall not, directly or indirectly, sell, convey,
or transfer or permit to be sold, conveyed, or transferred any of its assets to any Person to which
Mortgagor is related or connected. The term "assets" as used in this Section does not include the
Mortgaged Property, the sale, conveyance, or transfer of which is prohibited as provided in
Section 6.4 hereof.
6.6 Environmental ContaminationlHazardous Material. Mortgagor and the Mortgaged
Property shall at all times remain in full compliance with all Environmental Laws. Mortgagor
shall not, nor permit any other person to, except in compliance with all laws and regulations,
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manufacture, process, distribute, use, transport, handle, treat, store, dispose, emit, discharge,
leak, spill or release any Hazardous Material on, in, under or from the Mortgaged Property.
ARTICLE VII
EVENTS OF DEFAULT
7.1 Events of Default. An "Event of Default", as used in this Mortgage, shall occur
at any time or from time to time:
(i) Failure to Pay. If any Obligation or any installment thereof is not paid within
fifteen days after the same is due and payable;
(ii) Failure to Perform. If any Obligation (other than an Obligation requiring the
payment of money or the occurrence of an event described in Subsections 7 .1(iii) through (xiii),
inclusive, below) is not duly and promptly performed or is violated and such non-performance or
violation is not curable, or if curable continues for a period of thirty (30) days after written notice
thereof from Mortgagee to Mortgagor, provided, however, if such non-performance or violation
may not reasonably be cured within such thirty (30) day period, an Event of Default shall not be
deemed to have occurred so long as same shall be diligently and continuously endeavored to be
cured;
.
(iii) False Representation. If any representation or warranty made in any Bond
Document by or on behalf of Mortgagor is at any time materially false, misleading, or breached;
(iv) Judgment. If a final judgment for the payment of money of more than
$100,000 is rendered against Mortgagor or Foundation Guarantor, and the same remains
unsatisfied except for such period of time as execution on the judgment is effectively stayed;
(v) Voluntary Bankruptcy, Etc. If Mortgagor or Foundation Guarantor (i) is
voluntarily adjudicated a bankrupt or insolvent, (ii) seeks or consents to the appointment of a
receiver or trustee for itself or for all or any part of its property, (iii) files a petition seeking
relief, including reorganization, arrangement or similar relief, under the present Bankruptcy Code
or other similar present or future applicable laws of the United States or any state or any other
competent jurisdiction, (iv) makes a general assignment for the benefit of creditors or (v) admits
in writing its inability to pay its debts as they mature;
(vi) Involuntary Bankruptcy, Etc. If a receiver or trustee is appointed for
Mortgagor or Foundation Guarantor or for all or any part of their respective properties without
their respective consents and such appointment is not vacated within sixty (60) days, or if a
petition is filed against Mortgagor or Foundation Guarantor seeking relief, including
reorganization, arrangement or similar relief, under the present Bankruptcy Code or other similar
present or future applicable laws of the United States or any state or other competent jurisdiction,
. and such petition is not dismissed within sixty (60) days after the filing thereof;
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(vii) Dissolution. If Mortgagor or Foundation Guarantor voluntarily or
involuntarily dissolves or liquidates;
(viii) Site Lease. If the Mortgagor shall default under the Site Lease or the Site
Lease should be terminated for any reason;
(ix) Default Under Loan Documents. If any default occurs under any of the other
Bond Documents or if any obligation of Mortgagor under any of the other Bond Documents is not
fully performed;
(x) Foreclosure of Other Liens. If the holder of any mortgage or other lien on the
Mortgaged Property, whether a Permitted Title Exception or not (without hereby implying
Mortgagee's consent to any such mortgage or other lien) institutes foreclosure or other
proceedings for the enforcement of any of its remedies thereunder; or
(xi) Default Under Junior Mortgage. If any default or any event of default
occurs under any permitted Junior Mortgage, whether or not foreclosure or other proceedings have
been instituted thereunder.
ARTICLE VIII
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RIGHTS AND REMEDIES
8.1 Remedies. Subject to Section 10.15 hereof, if an Event of Default shall have
occurred, and after the giving of any required notice and after the expiration of any available cure
period, Mortgagee may, at its option, exercise any, some or all of the following remedies,
concurrently or consecutively.
(i) Acceleration. Mortgagee may declare all of the unpaid Obligations, together
with all accrued interest thereon, to be due and payable without notice or demand which are
hereby expressly waived, and upon such declaration all such Obligations shall immediately become
due and payable as fully and to the same effect as if the date of such declaration were the date
originally specified for the full payment or maturity thereof.
(ii) Mortgagee's Right to Enter and Take Possession, Operate and Apply Income.
Mortgagee may demand that Mortgagor surrender the actual possession of the Mortgaged Property
and upon such demand, to the extent permitted by applicable law, Mortgagor shall forthwith
surrender same to Mortgagee and, to the extent permitted by law, Mortgagee itself, or by such
officers or agents as it may appoint, may enter and take possession of all of the Mortgaged
Property and may exclude Mortgagor and its agents and employees wholly therefrom.
(a) If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a
. judgment or order conferring on Mortgagee the right to immediate possession or requiring the
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Mortgagor to deliver immediate possession to Mortgagee, to the entry of which judgment or
decree the Mortgagor hereby specifically consents.
(b) Mortgagee may from time to time: (A) continue and complete
construction of, hold, store, use, operate, manage and control the Mortgaged Property and conduct
the business thereof; (B) make all reasonably necessary maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon and purchase or
otherwise acquire additional Fixtures and Personal Property; (C) insure or keep the Mortgaged
Property insured; (D) exercise all the rights and powers of the Mortgagor in its name or otherwise
with respect to the same; and (E) enter into agreements with others (including, without limitation,
new Leases or amendments, extensions, or cancellations to existing Leases) all as Mortgagee from
time to time may determine in its sole discretion. Mortgagor hereby constitutes and irrevocably
appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to do any and all acts and execute any and
all agreements that Mortgagee may deem necessary or proper to implement and perform any and
all of the foregoing.
.
(iii) The Mortgagee may, with or without taking possession of the Mortgaged
Property as hereinabove provided, collect and receive all the Rents therefrom, including those past
due as well as those accruing thereafter, and shall apply the monies so received first, to the
payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Mortgagee and its agents in connection with the collection of same, whether
or not in possession of the Mortgaged Property, and second, in such order as Mortgagee may
elect, to the payment of the Obligations.
(iv) Proceedings To Recover Sums Due. (a) If any installment or part of any
Obligation shall fail to be paid when due, Mortgagee shall be entitled to sue for and to recover
judgment against the Mortgagor for the amount so due and unpaid together with all costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by
Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate
from the date incurred by Mortgagee. Any such judgment against the Mortgagor shall bear
interest at the Default Rate. All such costs and expenses shall be secured by this Mortgage and
shall be due and payable by Mortgagor immediately.
(b) If Mortgagor shall fail to pay upon the Mortgagee's demand, after
acceleration as provided in Subsection 8.1(i), all of the unpaid Obligations, together with all
accrued interest thereon, Mortgagee shall be entitled to sue for and to recover judgment against
the Mortgagor for the entire amount so due and unpaid together with all costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest thereon at the Default Rate from the date
incurred by Mortgagee. Any such judgment against the Mortgagor shall bear interest at the
Default Rate. All such costs and expenses shall be secured by this Mortgage and shall be payable
. by Mortgagor immediately. Mortgagee's right under this Subsection (b) may be exercised by
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Mortgagee either before, after or during the pendency of any proceedings for the enforcement of
this Mortgage, including appellate proceedings.
(c) No recovery of any judgment as provided in Subsections (a) and (b)
above and no attachment or levy of any execution upon any of the Mortgaged Property or any
other property shall in any way affect the lien of this Mortgage upon the Mortgaged Property or
any part thereof, or any lien, rights, powers, or remedies of Mortgagee hereunder, but such lien,
rights, powers and remedies shall continue unimpaired as before.
(v) Foreclosure. Mortgagee may institute proceedings for the partial or complete
foreclosure of this Mortgage and Mortgagee may, pursuant to any final judgment of foreclosure,
sell the Mortgaged Property as an entirety or in separate lots, units, or parcels.
(a) In case of a foreclosure sale of all or any part of the Mortgaged
Property, the proceeds of sale shall be applied in accordance with Section 8.8 hereof, and the
Mortgagee shall be entitled to seek a deficiency judgment against the Mortgagor to enforce
payment of any and all Obligations then remaining due and unpaid, together with interest thereon,
and to recover a judgment against the Mortgagor therefor, which judgment shall bear interest at
the Maximum Rate.
.
(b) The Mortgagee is authorized to foreclose this Mortgage subject to
the rights of any tenants of the Mortgaged Property, or Mortgagee may elect which tenants
Mortgagee desires to name as parties defendant in such foreclosure and failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not
be, nor be asserted by the Mortgagor to be, a defense to any proceedings instituted by the
Mortgagee to collect the unpaid Obligations or to collect any deficiency remaining unpaid after
the foreclosure sale of the Mortgaged Property.
(vi) Receiver. Mortgagee may apply to any court of competent jurisdiction to have
a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the
Rents therefrom and apply the same as the court may direct, such receiver to have all of the rights
and powers permitted under the laws of the State. The right of the appointment of such receiver
shall be a matter of strict right without regard to the value or the occupancy of the Mortgaged
Property or the solvency or insolvency of Mortgagor. The expenses, including receiver's fees,
attorneys' fees, costs and agent's commission incurred pursuant to the powers herein contained,
together with interest thereon at the Default Rate, shall be secured hereby and shall be due and
payable by Mortgagor immediately without notice or demand. Notwithstanding the appointment
of any receiver or other custodian, Mortgagee shall be entitled as pledgee to the possession and
control of any cash or deposits at the time held by, payable, or deliverable under the terms of this
Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the unpaid
Obligations against any such cash or deposits in such order as Mortgagee may elect.
.
(vii) Remedies as to Personal Property. Mortgagee may exercise any or all of its
rights and remedies under the Uniform Commercial Code-Secured Transactions as adopted by the
State or other applicable law as well as all other rights and remedies possessed by Mortgagee, all
27
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.
of which shall be cumulative. To the extent permitted by law, Mortgagee is hereby authorized and
empowered to enter the Mortgaged Property or other place where the Personal Property may be
located without legal process, and to take possession of the Personal Property without notice or
demand, which hereby are waived to the maximum extent permitted by the laws of the State.
Upon demand by Mortgagee, Mortgagor shall make the Personal Property available to Mortgagee
at a place reasonably convenient to Mortgagee. Mortgagee may sell at one or more public or
private sales and for such price as Mortgagee may deem commercially reasonable, any and all of
the Personal Property secured by this Mortgage, and any other security or property held by
Mortgagee and Mortgagee may be the purchaser of any or all of the Personal Property.
(viii) Other. Mortgagee may institute and maintain any suits and proceedings as
the Mortgagee may deem advisable (i) to prevent any impairment of the Mortgaged Property by
any acts which may be unlawful or in violation of this Mortgage, ,(ii) to preserve or protect its
interest in the Mortgaged Property, and (iii) to restrain the enforcement of or compliance with any
Governmental Requirement that may be unconstitutional or otherwise invalid, if the enforcement
of or compliance with such Governmental Requirement might impair the security hereunder or be
prejudicial to the Mortgagee's interest.
8.2 Remedies Cumulative and Concurrent. No right, power or remedy of Mortgagee
as provided in the Note, this Mortgage, the Loan Agreement, or the other Bond Documents is
intended to be exclusive of any other right, power, or remedy of Mortgagee, but each and every
such right, power and remedy shall be cumulative and concurrent and in addition to any other
right, power or remedy available to Mortgagee now or hereafter existing at law or in equity and
may be pursued separately, successively or together against Mortgagor, or any endorser,
co-maker, surety or guarantor of the Obligations, or the Mortgaged Property or any part thereof,
or anyone or more of them, at the sole discretion of Mortgagee. The failure of Mortgagee to
exercise any such right, power or remedy shall in no event be construed as a waiver or release
thereof.
8.3 Waiver. Delay or Omission. No waiver of any Event of Default hereunder shall
extend to or affect any subsequent or any other Event of Default then existing, or impair any
rights, powers or remedies consequent thereon, and no delay or omission of Mortgagee to exercise
any right, power or remedy shall be construed to waive any such Event of Default or to constitute
acquiescence therein.
8.4 Credit of Mortgagee. Subject to Section 10.15 hereof, and to the maximum extent
permitted by the laws of the State, upon any sale made under or by virtue of this Article,
Mortgagee may bid for and acquire the Mortgaged Property, or any part thereof, and in lieu of
paying cash therefor may apply to the purchase price, any portion of or all of the unpaid
Obligations in such order as Mortgagee may elect.
8.5 Sale. Any sale or sales made under or by virtue of this Article shall operate to
divest all the estate, right, title, interest, claim and demand whatsoever at law or in equity, of the
. Mortgagor and all Persons, except tenants pursuant to Leases approved by Mortgagee, claiming
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by, through or under Mortgagor in and to the properties and rights so sold, whether sold to
Mortgagee or to others.
8.6 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition, seizure of the Mortgaged Property by any
Governmental Authority, or other judicial proceedings affecting the Mortgagor, any endorser,
co-maker, surety, or guarantor of the Obligations, or any of their respective properties, the
Mortgagee, to the extent permitted by law, shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim allowed in such proceedings
for the entire unpaid Obligations at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable after such date.
8.7 Waiver of Redemption. Notice. Marshalling. Etc. Subject Section 10.15 hereof,
Mortgagor hereby waives and releases, for itself and anyone claiming through, by, or under it,
to the maximum extent permitted by the laws of the State of Florida:
(a) all benefit that might accrue to Mortgagor by virtue of any present or future
law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof,
from attachment, levy or sale on execution, or providing for any appraisement, valuation, stay of
execution, redemption or extension of time for payment,
.
(b) unless specifically required herein, all notices of default, or Mortgagee's
actual exercise of any option or remedy under the Bond Documents, or otherwise, and
(c) any right to have the Mortgaged Property marshalled.
8.8 Application of Proceeds. The proceeds of any sale of all or any portion of the
Mortgaged Property shall be applied by Mortgagee first, to the payment of receiver's fees and
expenses, if any, and to the payment of all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Mortgagee, together with interest thereon at
the Default Rate from the date so incurred, in connection with any entry, action or proceeding
under this Article and, second, in such order as Mortgagee may elect, to the payment of the
Obligations. Mortgagor shall be and remain liable to Mortgagee for any difference between the
net proceeds of sale and the amount of the Obligations until all of the Obligations have been paid
in full.
8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded to enforce any
right under any Bond Document and such proceedings shall have been discontinued or abandoned
for any reason, then except as may be provided in any written agreement between Mortgagor and
Mortgagee providing for the discontinuance or abandonment of such proceedings, Mortgagor and
Mortgagee shall be restored to their former positions and the rights, remedies and powers of
Mortgagee shall continue as if no such proceedings had been instituted.
.
8.10 Mortgagee's Actions. Subject to Section 10.15 hereof, Mortgagee may, at any time
without notice to any Person and without consideration, do or refrain from doing any or all of the
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following actions, and neither the Mortgagor, any endorser, co-maker, surety or guarantor of the
Obligations, nor any other Person (hereinafter in this Section 8.10 collectively referred to as the
"Obligor") now or hereafter liable for the payment and performance of the Obligations shall be
relieved from the payment and performance thereof, unless specifically released in writing by
Mortgagee: (a) renew, extend or modify the terms of the Note, this Mortgage and the other Bond
Documents, or any of them; (b) forbear or extend the time for the payment or performance of any
or all of the Obligations; (c) apply payments by any Obligor to the reduction of the unpaid
Obligations in such manner, in such amounts, and at such times and in such order and priority as
Mortgagee may see fit; (d) release any Obligor; (e) substitute or release in whole or in part the
Mortgaged Property or any other collateral or any portion thereof now or hereafter held as security
for the Obligations without affecting, disturbing or impairing in any manner whatsoever the
validity and priority of the lien of this Mortgage upon the Mortgaged Property which is not
released or substituted, or the validity and priority of any security interest of the Mortgagee in
such other collateral which is not released or substituted; (f) subordinate the lien of this Mortgage
or the lien of any other security interest in any other collateral now or hereafter held as security
for the Obligations; (g) join in the execution of a plat or replat of the Land; (h) join in and consent
to the fIling of a declaration of condominium or declaration of restrictive covenants regarding all
or any part of the Land; (i) consent to the granting of any easement on the Land; and (j) generally
deal with any Obligor or any other party as Mortgagee may see fit.
8.11 Mortgagee's Consent. In any instance where the approval, consent or the exercise
of judgment of the Mortgagee is required, the granting or denial of such approval or consent and
the exercise of such judgment shall be within the reasonable discretion of the Mortgagee.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Regulation of Mortgagee. Mortgagee is subject to various
Governmental Authorities and the laws, rules and regulations enacted, adopted and promulgated
by them. To the extent that Mortgagee's authority to perform its obligations (if any) under this
Mortgage, now or hereafter, may be limited or regulated by such Governmental Authorities,
Mortgagee is hereby excused from such performance.
9.2 Mortgagee's Failure to Perform. If Mortgagee fails to perform its obligations (if
any) under this Mortgage (except to the extent excused therefrom as provided in Section 9.1
above), Mortgagor shall notify Mortgagee in writing (the "Notice") within thirty (30) days after
Mortgagor's obtaining knowledge of such failure. Each such Notice shall describe in detail the
act or event constituting the non-performance by Mortgagee. Mortgagee shall have thirty (30) days
after its receipt of the Notice to cure any such failure to perform, unless such cure can not be
accomplished using reasonable efforts within said thirty (30) day period, in which case Mortgagee
shall have such additional time as may be necessary, using reasonable efforts, to cure such
. non-performance (the "Mortgagee Cure Period").
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9.3 Mortgagor's Rights and Remedies. The giving of the Notice and the expiration of
the Mortgagee Cure Period shall be conditions precedent to any right of the Mortgagor to bring
an action against Mortgagee.
ARTICLE X
MISCELLANEOUS
.
10.1 Maximum Rate of Interest. Nothing contained herein, in the Note, or in any other
Bond Document, or the Commitment, or in any instrument or transaction related thereto, shall be
construed or so operate as to require the Mortgagor or any person liable for the payment of the
Loan made pursuant to the Note, or liable for the payment of any Obligations, to pay interest, or
any charge in the nature of interest, in an amount or at a rate which exceeds the maximum rate of
interest allowed by applicable law, as amended from time to time. Should any interest or other
charges in the nature of interest received by Mortgagee or paid by the Mortgagor or any parties
liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any
Obligations, exceed the maximum rate of interest allowed by applicable law, as amended from
time to time, then such excess sum shall be credited against the principal balance of the Note or
the balance of the other Obligations, as applicable, unless the Mortgagor or such other parties
liable for such payments, as applicable, shall notify the Mortgagee, in writing, that the Mortgagor
or such other party elects to have such excess sum returned to it forthwith, it being the intent of
the parties hereto that under no circumstances shall the Mortgagor or any parties liable for any of
the aforesaid payments be required to pay interest in excess of the maximum rate of interest
allowed by applicable law, as amended from time to time. The Mortgagee may, in determining
the maximum rate of interest allowed under applicable law, as amended from time to time, take
advantage of any state or federal law , rule or regulation in effect from time to time which may
govern the maximum rate of interest which may be reserved, charged or taken.
10.2 Continuing Agreement. This Mortgage and all of the Mortgagor's representations,
warranties and covenants herein, Mortgagee's security interest in the Mortgaged Property and all
of the rights, powers and remedies of Mortgagee hereunder shall continue in full force and effect
until all of the Obligations have been paid and performed in full; until Mortgagee has no further
obligation to make any advances under the Loan; and until Mortgagee, upon the request of the
Mortgagor, has executed a satisfaction of mortgage. Furthermore, if for any reason no
Obligations are owing, notwithstanding such occurrence, this Mortgage shall remain valid and in
full force and effect as to subsequent Obligations, so long as Mortgagee has not executed a
satisfaction of mortgage; provided, however, that the indemnifications set forth in Article V of this
Mortgage shall survive the satisfaction of this Mortgage.
10.3 Survival of Warranties and Covenants. The warranties, representations, covenants
and agreements set forth in this Mortgage shall survive the making of the Loan and the execution
and delivery of the Note, and shall continue in full force and effect until all of the Obligations shall
have been paid and performed in full.
.
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10.4 No Representation By Mortgagee. By accepting or approving anything required
to be observed, performed or fulfilled, or to be given to Mortgagee, pursuant to this Mortgage,
or the other Bond Documents, Mortgagee shall not be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty
or representation with respect thereto by Mortgagee.
10.5 Notice. All notices, demands, requests and other communications required under
this Mortgage may be given by telex, telegram, or confirmed telecopy, or in writing delivered by
hand or mail and shall be conclusively deemed to have been received if delivered or attempted to
be delivered by United States first class mail, return receipt requested, postage prepaid, addressed
to the party for whom it is intended at its Notice Address.
10.6 Mortgagee's Right to Pay and Perform. If Mortgagor shall fail to duly payor
perform any of the Obligations required by this Mortgage, then at any time thereafter without
notice to or demand upon Mortgagor, and without waiving or releasing any right, remedy, or
power of Mortgagee, and without releasing any of the Obligations or any Default, Mortgagee may
payor perform such Obligation for the account of and at the expense of Mortgagor, and shall, to
the extent permitted by law, have the right to enter and to authorize others to enter upon the
Mortgaged Property for such purpose and to take all such action thereon and with respect to the
Mortgaged Property as may be necessary or appropriate for such purpose. All reasonable
payments made and all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Mortgagee, together with interest thereon at the Default Rate from
the date incurred by Mortgagee shall be secured by this Mortgage and shall be due and payable
by Mortgagor immediately, whether or not there be notice, demand, an attempt to collect same,
or suit pending.
10.7 Covenants Running With the Land. All covenants contained in this Mortgage shall
be binding on the Mortgagor and shall run with the Land.
10.8 Successors and Assigns. All of the terms of this Mortgage shall apply to and be
binding upon, and inure to the benefit of, the heirs, devisees, personal representatives, successors
and assigns of Mortgagor and Mortgagee, respectively, and all persons claiming under or through
them. Mortgagor acknowledges that Pinellas County Industrial Development Authority will assign
this Mortgage (other than its rights under Section 5.16 hereof) to Bank of America, N.A.
10.9 Invalidity. If anyone or more of the provisions contained in this Mortgage is
declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such
provision or portion thereof shall be deemed stricken and severed and the remaining provisions
hereof shall continue in full force and effect.
10.10 Modification. No agreement unless in writing and signed by an authorized officer
of Mortgagee and no course of dealing between the parties hereto shall be effective to change,
waive, terminate, modify, discharge, or release in whole or in part any provision of this Mortgage.
No waiver of any rights or powers of Mortgagee or consent by it shall be valid unless in writing
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signed by an authorized officer of Mortgagee and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
10.11 Applicable Law. This Mortgage shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Florida (excluding the principles
thereof governing conflicts of law), and federal law , in the event federal law permits a higher rate
of interest than State law.
10.12 Replacement of Note. Upon receipt of evidence reasonably satisfactory to
Mortgagor of the loss, theft, destruction or mutilation of the Note, or any amendment or
modification thereto, including without limitation any renewal note or additional note, and in the
case of any such loss, theft, or destruction, upon delivery of any indemnity agreement, reasonably
satisfactory to Mortgagor or, in the case of any such mutilation, upon surrender of such mutilated
note, Mortgagor will execute and deliver, in lieu thereof, a replacement Note, identical in form
and substance to the Note and dated as of the date of the Note and upon such execution and
delivery all references in any of the Bond Documents to the Note shall be deemed to refer to the
replacement Note.
10.13 Strict Performance. It is specifically agreed that time is of the essence as to all
matters provided for in this Mortgage and that no waiver of any Obligation hereunder or secured
hereby shall at any time thereafter be held to be a waiver of the Obligations.
.
10.14 Arbitration and Waiver of Jury Trial. This Section 10.14 concerns the resolution
of any controversies or claims between the Mortgagor and the Mortgagee, whether arising in
contract, tort or by statute, that arise out of or relate to: (i) this Mortgage (including any renewals,
extensions or modifications); or (ii) any document related to this Mortgage; (collectively a
"Claim").
At the request of the Mortgagor or the Mortgagee, any Claim shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration
Act"). The Act will apply even though this Mortgage provides that it is governed by the law of
a specified state.
Arbitration proceedings will be determined in accordance with the Arbitration Act, the
rules and procedures for the arbitration of financial services disputes of J.A.M.S.lEndispute or
any successor thereof ("J.A.M.S. "), and the terms of this paragraph. In the event of any
inconsistency, the terms of this paragraph shall control.
.
The arbitration shall be administered by J.A.M.S. and conducted in Pinellas County,
Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000,
upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration
hearings shall commence within 90 days of the demand for arbitration and close within 90 days
of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of
the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a
33
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concise written statement of reasons for the award. The arbitration award may be submitted to
any court having jurisdiction to be confirmed and enforced.
The arbitrator(s) will have the authority to decide whether any Claim is barred by the
statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on J .A.M .S. under applicable J .A.M. S. rules
of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this
arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The
arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Mortgage and
Security Agreement.
This paragraph does not limit the right of the Mortgagor or the Mortgagees to: (i) exercise
self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure
against any real or personal property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive
relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any
way to limit this Mortgage to arbitrate, to the extent any Claim is not arbitrated, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such
Claim.
.
No provision in this Mortgage regarding submission to jurisdiction and/or venue in any
court is intended or shall be construed to be in derogation of the provisions of this Mortgage for
arbitration of any controversy or claim.
.
10 .15 Provisions Relating to the Site Lease. Mortgagor represents that City of
Clearwater, Florida (the "City") has consented to this Mortgage in writing, as evidenced by the
Resolution of the City an excerpt of which is attached hereto as Exhibit B, to the extent that it does
not modify or nullify any terms, provisions, covenants, conditions or obligations of the Site Lease,
that a true copy of this Mortgage together with the Note and the other obligations secured hereby
and the name and address of Mortgagor has been provided to the City by hand delivery or certified
mail, return receipt requested, or by overnight courier service and that the term of the Note and
the Bonds is less than or equal to the remaining term of the Site Lease. Mortgagee, by accepting
the benefits of this Mortgage, covenants and agrees with the City that notwithstanding anything
to the contrary contained herein, Mortgagee shall not conclude any foreclosure action by affecting
a judicial sale of Mortgagor's leasehold interest in the Mortgaged Property to occur until the
expiration of 120 days from the date on which Mortgagee gives written notice to City of
Mortgagor's default under the Site Lease, and specifying what actions are required to cure such
default, and Mortgagee agrees that during such time the City may at its option cure such defaults
and/or provide a "substitute lessee" acceptable to Mortgagee upon terms as may be required by
Mortgagee, and which shall not serve to release Mortgagor from any liabilities owned to
Mortgagee. In the event of a foreclosure of this Mortgage, Mortgagee, its nominee, successors,
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assigns, or a purchaser at a foreclosure sale shall assume the Site Lease upon the same terms,
provisions, covenants, conditions and obligations as are set forth therein.
IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
PACT,INC.
By:
Print Name:
Its President and CEO
Print Name:
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STATE OF FLORIDA
)
) SS:
)
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
2001 by , as President of PACT, Inc. a Florida not-for-profit corporation.
He/She produced a driver's license as identification and did not take an oath.
Notary Public
G: \ 14184\ 139\mortgage(5), wpd
36
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.EXHIBIT
OEseR I PT I d'N :
)
II
"A 1\
RUTH ECKERo HALI_'
A PARCEL OF LAND LYING IN THE SOUTH 1/2 OF THE NOR1H 1/2 OF SECTION 9.
TOWNSH I P 29 SOUTH, RANGE I G EAST, PI NELLAS COUNTY, FI_OR IIDA. AND BE I NG MORE
PARTICULA~LY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWES~ 1/4 OF SECTION 9. .
TOWNSHIP 29 SOUTH. RANGE 16 EAST. PINELLAS COUNTY. FLPRIDA; THENCE SOUTH
89021 'OSM' EAST. A~ONG THE NORTH LINE OF DEL ORO GROVES, ~S RECORDED IN PLAT
BOOK 1 2, PAGE 2 OF THE PUBLI C RECORDS OF P I NELLAS C9UNTY . FLOR I DA . A
DISTANCE OF 477.16 FEET TO THE SOUTHWEST CORNER OF LOT;~I, oE~ ORO GROVES'
FIRST ADDITION, AS RECORDED IN PLAT BOOK. 69, PAGE S6 A~D 57 OF' TH!=:.PUBLIC.
RECORDS' OF PINELLAS COUNTY. FLORIDA: THENCE ALON~'THE WEST AND NORTH LINts'
or- SAID DEL: ORO GROVES FIRST ADDITION. THE FOLLOWING T~N"(IO) COURSES AND'
DISTANCES: I. NORTH 00016' 15M EAST. S19.23 FEET: 2. S04TH 69019'45. EAST, .
118.60 FEET: 3. NORTH 00029'45" WEST. 79.68 FEET: 4. SOU~H 69009' IS" EAST.
245.06 FEET: 5. NORTH 0000S'45" EAST, 129.43 FEET: 6.: SOUTH 69034' 15M
EAST. 60. 4S FEET: 7. NORTH 000 10' 15. WEST, 30 I .96 FEET; ~,. SOUTH 690 17' 15"
EAST. 498.69 FEET; 9. NORTH 81025'06" EAST. 479.~ FEET: 10. SOUTH
. 1-. .,. .
69049'15" EAST, 251.76 FEET"TO A POINT ON THE WEST LINE OF' LOT 25. DEL ORO'
HEIGHTS. AS RECORDED IN PLAT BOOK 54. PAGE 12. OF THE PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA: THENCE ALONG THE WEST LI~E OF SAID PEL ORO
HEIGHTS SUBDIVISION. NORTH 00004'50" EAST A OtSTANCE OF ~21. 17 PEET TO THE
NORTH LINE OF THE SOUTH 1/2 OF THE NORTH 1/2 OF SAID S~CTION 9: THENCE
NORTH 89017'04- WEST ALONG SAID LINE, A DISTANCE OF 15t4.S6 FEET: THENCE
. I
LEAVING SAID LINE. SOUTH 00007'43M WEST A DISTANCE OF 64.54 FEET; THENCE
NORTH 89021'OS" WEST A DISTANCE OF 320.00 FEET: THENCE SOOTH 00007'43" WEST'
A DISTANCE OF 60.00 FEET; THENCE NORTH e9021'08~ WEST A D~STANCEOF 290.00
FEET: THENCE SOUTH 00007'34- WEST A DISTANCE OF, 111 FEET MORE OR LESS TO
THE CENTER OP.ALLIGATOR CREEK. SAID POINT TO BE KNowN AS POINT "A" FOR
CONVENIENCE: RETURN THENCE .TO THE POINT OF BEGINNING: THENCE NORTH
B902. '051' WEST ALONG THE NORTH LINE OF DEL ORO ESTATES. AS\ RECORDED I N PLAT
aOOK 46, PAGE 29 OF THE PUBLIC RECORDS OF PINELlAS COUNTY'. FLORIDA. A
DISTANCE OF 695.52 FEET: THENCE NORTH 00007'00" EAST A DII.STANCE OF 610.62
FEET: THENCE NORTH 6.90 Ie' 29" WEST A 0 I STANCE OF 590.03 FEET TO THE EASTERLY
RIGHT-OF-WAY LINE OF McMULLEN BOOTH ROAD. (S.R. 593}. (A \00' R/W); THENCE
NORTH 00007'00M EAST ALONG SAID R/W LINE, A DISTANCE OF 60\00 FEET TO THE
SOUTHWEST CORNER OF KAPOK MANOR CONDOMINIUM VILLAGE ONE. AS RECORDED IN
CONDOMINIUM PLAT BOOK 22. PAGES 48 THRU 51 INCLUSIVE. OF T~E PUBLIC RECORDS
OF PINELLAS COUNTY. PLORIOA; THENCE SOUTH 890 ta'29" .SASt ALONG THE SOUTH
LINE OP SAID CONDOMINIUM AND THE SOUTH LINE OF ONE KAPOK TERRACE. A
CONDOMINIUM PHASE VI, AS RECORDED IN CONDOMINIUM PLAT BOOK 102. PAGES e
THRU 10. I NCLUS I VE. OF' THE PIJBL I C RECORDS OF PI NEU_AS dOUNTY FLOR IDA. A'
DISTANCE O~ I 135.66 ~EET; THENCE NORTH 00007'00. EAST A DI~TANCE OF. 60.00
FEET: THENCE NORTH 66027'06" WEST ALONG THE NORTHERL~ LINE OF THE
UNRECORDED ONE KAPOK TERRACE. A CONDOMINIUM. PHASE ViiI. A DISTANCE OF
267.83 FEET; THENCE NORTH 00007' 34" EAST A 0 I ST ANCE OF \140 FEET MORE OR
LESS TO THE CENTERLINE OF ALLIGATOR CREEK; THENCE EASTERLY AND NORTHERLY
ALONG THE CENTERLINE OF ALLIGATOR CREEK AS IT WINDS AND TURNS TO THE
AFOREMENTIONED POINT "AN,
SAID PARCEL CONTAINING 41 ACRES MORE OR LESS.
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of the 18th day of May, 2001, is by and
between the City of Clearwater, Florida, a municipal corporation duly organized and existing under
the laws of the State of Florida (herein called "City"), PACT, Inc., a corporation not-for-profit
organized and existing under the laws of the State of Florida (herein called "PACT") and Bank of
America, N.A., its successors and assigns as lender and holder of the Bonds issued under the
documents described in the Commitment Letter attached hereto as Exhibit A (the "Financing
Documents") (the "Lender").
WIT N E SSE T H:
WHEREAS, arrangements have been made for the issuance and sale, pursuant to the
aforesaid Financing Documents, by the Pinellas County Industrial Development Authority on behalf
of PACT, of Bonds in the aggregate principal amount of not exceeding $5,000,000 (herein called
the "Bonds"); and
WHEREAS, the proceeds of the sale of the Bonds will be used by PACT to (i) retire the
outstanding indebtedness of P ACT undertaken by PACT on behalf of the City to finance various
improvements to a performing arts facility located within the corporate municipal boundaries ofthe
City known as Ruth Eckerd Hall (the "Facility"), and (ii) pay the costs of constructing and equipping
additions to the Facility (collectively, the "Project"), which Facility will be made available through
P ACT to itself and other community groups from time to time by the City under a Facility Use
Agreement (herein called the "Use Agreement") as part of the City's public recreation program; and
WHEREAS, the City acknowledges PACT's undertaking to borrow such funds and apply the
proceeds for the purpose described above and, in order to support PACT and to provide an
inducement to the Lender to buy the Bonds and for all who shall at any time become holders thereof,
the City is willing to enter into this Guaranty Agreement;
WHEREAS, the City previously executed a Guaranty Agreement dated as of June 1, 1981
which has been cancelled as of the execution hereof and the closing of the Refinancing;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the City, PACT and the Lender do hereby covenant and agree with each other as
follows:
ARTICLE I
REPRESENT A nONS OF THE CITY
Section 1.1 The City hereby represents and warrants that it is a municipal corporation duly
organized and existing under the laws of the State of Florida, has full power and authority to enter
into and perform this Guaranty Agreement and has duly authorized this Guaranty Agreement by
. proper official action.
EXHIBIT B
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ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1 Subject to the provisions hereof, the City hereby unconditionally and irrevocably
guarantees to the Lender the full and prompt payment of the principal of, premium, if any, and
interest on the Bonds when and as the same shall become due, whether at the stated maturity thereof,
by acceleration or other mandatory redemption of the Bonds when and as the same shall become
due, up to the aggregate sum of One Million Dollars ($1,000,000.00), subject to restoration as
hereinafter provided in this Section 2.1 (herein, the "Guarantee Amount"). The City further agrees,
in the event of any failure of PACT to make such payments of principal of, premium, if any or
interest on the Bonds when due, to make such payments to the Lender, provided however, that in
all events such payment or payments by the City, together with all other amounts which the City
may be obligated to make under this Guaranty Agreement, shall not exceed the Guarantee Amount.
The Guarantee Amount shall be subject to automatic reinstatement following any payment by the
City hereunder in the event and to the extent that PACT reimburses the City for any amounts paid
under this Guaranty Agreement. If, after the City shall have made any payments to the Lender
hereunder, PACT shall reimburse all or any part of such payment amounts to the City, the Guarantee
Amount shall be restored by the amount of such payment, and the City shall notify Lender of such
restoration. All payments by the City under this Guaranty Agreement shall be made in lawful
money of the United States of America.
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Section 2.2 The obligations of the City hereunder are payable solely from funds derived by
the City from sources other than ad valorem taxation and legally available for such purpose which
are on deposit from time to time in the general fund of the City (hereinafter called "Non-Ad Valorem
Funds"). The City hereby reserves the right to hereafter from time to time pledge and encumber by
lien all or any part of such funds for the payment of obligations of the City, prior and superior to its
agreement to pay under this agreement. The obligation of the City hereunder does not constitute a
general indebtedness of the City or a pledge of the City's full faith or credit within the meaning of
any constitutional or statutory provision or limitation. The ad valorem taxing power of the City is
not pledged hereunder and neither the Lender, PACT, shall ever have the right to compel the
exercise of the ad valorem taxing power of the City for performance of the City's obligations
hereunder.
Section 2.3 Pursuant to due notice from the Lender, the City will set up and appropriate in
the annual budget of the City for expenditure in each of the years during which the Bonds will be
outstanding and unpaid, from the Non-Ad Valorem Funds of the City, sufficient amounts of such
Non-Ad Valorem Funds of the City to make the payments guaranteed hereunder. Such covenant
and agreement on the part of the City to budget and appropriate such amounts of Non-Ad Valorem
Funds shall be cumulative, and shall continue until such Non-Ad Valorem Funds in amounts
sufficient to make all required payments due under Section 2.1 hereof shall have been budgeted,
appropriated and actually paid to the Lender.
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Section 2.4 The City covenants and agrees to take all action and pursue all such legal
remedies which may be available to it to ensure that sufficient Non-Ad Valorem Funds will be
available to fulfill the City's agreements hereunder.
Section 2.5 The obligation of the City under this Agreement shall be absolute and
unconditional and shall remain in full force and effect until all Bonds are no longer outstanding or
the maximum amount the City is obligated to pay has been paid under Section 2.1 hereof. Except
as so provided, such obligation shall not be affected, modified or impaired upon the happening from
time to time of any event, including without limitation any of the following, whether or not such
event shall occur with notice to, or the consent of, the City:
(a) the failure to give notice to the City of the occurrence of a default under this Guaranty
Agreement or an event of default under the terms and provisions of the Financing Documents;
(b) the transfer, assignment or mortgaging or the purported transfer, assignment or
mortgaging of all or any part of the interest of PACT or the City in the Project or any failure oftitle
with respect to PACT's or the City's interest in the Project;
(c) the waiver, surrender, compromise, settlement, release or termination of PACT's
obligations, covenants or agreements contained in the Use Agreement;
(d) the waiver, surrender, compromise, settlement, release or termination of any of the
obligations, covenants or agreements of the City under the Use Agreement;
(e) the extension of the time for payment of any principal of, premium, ifany, or interest
owing or payable on any Bond or of the time for performance of any obligation, covenant or
agreement under or arising out of the Use Agreement or the Financing Documents or any extension
or renewal of either thereof;
(f) the modification or amendment (whether material or otherwise) of any obligation,
covenant or agreement set forth in the Use Agreement, the Bonds or the Financing Documents;
(g) the taking or the omission of any action referred to in the Use Agreement or the
Financing Documents or of any action under this Guaranty Agreement;
(h) any failure, omission, delay or lack of diligence on the part of PACT or the Lender
in the enforcement, assertion or exercise of any right, power or Lender conferred on PACT or the
Lender under the Use Agreement or the Financing Documents, or conferred on the Lender in this
Guaranty Agreement, or the inability of PACT or the Lender to enforce any provision of the use
Agreement or the Financing Documents or this Guaranty Agreement for any other reason, or any
other act or omission on the part of PACT, or the Lender.
(i) the dissolution, sale or other disposition of all or substantially all the assets,
liquidation, the marshaling of assets and liabilities, receivership, insolvency, assignment for the
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benefit of creditors, bankruptcy, reorganization, arrangement, adjustment composition or other
similar proceedings affecting PACT or the City under the Use Agreement or the Financing
Documents or any of the assets of either of them, or any allegation or contest of the validity of this
Guaranty Agreement or the Use Agreement;
U) to the extent permitted by law, any event or action that would, in the absence of this
clause, result in the release or discharge by operation of law of the City from the performance or
observance of any obligation, covenant or agreement contained in this Guaranty Agreement.
Section 2.6 Whenever the Lender shall declare an event of default under the Financing
Documents, the Lender shall give notice to the City of any anticipated deficiency in payments
maturing principal of and premium, if any, and interest on the Bonds, such notice to be given not
later than thirty days prior to the due date hereunder, and the City agrees to fulfill its obligations
under this Article II with respect to such deficiency by payment of the sum required when due.
Section 2. 7 PACT agrees that all of the covenants and agreements made by it in the
Financing Documents for the benefit of the holders of the Bonds shall also be incorporated herein
by reference and are made for the benefit ofthe City, and the City shall have the right to enforce
such covenants and agreements in the same manner as the Lender may so enforce them under the
Financing Documents. However, no default by PACT hereunder shall be available to the City as
a set-off, counterclaim, reduction or diminution of the City's obligations to the Lender hereunder,
or available as a defense of any kind or nature to the City against the Lender.
Section 2.8 Whenever the City shall have made any payments to the Lender hereunder, the
City shall become subrogated to the rights of a holder ofthe Bonds under the Financing Documents
to the extent of such payments, and PACT agrees to perform and carry out for the benefit of the City
all of its obligations and duties to the Lender under the Financing Documents.
ARTICLE III
DEF AUL T AND REMEDIES
Section 3.1 The Lender shall have the right, power and authority to do all things it deems
necessary or advisable to enforce the provisions of this Guaranty Agreement and protect the interest
[of the Lender] and, in the event ofa default in payment of the principal of or premium, ifany, on
any Bond when and as the same shall become due, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in the payment of any
interest on any Bond when and as the same shall become due, the Lender may institute or appear in
such appropriate judicial proceedings as the Lender shall deem most effectual to protect and enforce
any of its rights whether for the specific enforcement of any covenant or agreement in this Guaranty
Agreement or in aid of the exercise of any power granted herein, or to enforce nay other proper
remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the
principal of, premium, if any, or interest on any Bond when due, the Lender may institute a judicial
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proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the City.
Section 3.2 No remedy conferred upon or reserved to the Lender herein is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Guaranty Agreement or
now or hereafter existing at law or in equity.
Section 3.3 Each and every event of default under the Financing Documents shall give rise
to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause
of action arises. In the event of such a default, the Lender shall proceed first and directly against
PAC Foundation, Inc. (the "Foundation") under its guaranty and thereafter upon proceeding against
the Foundation and exhausting any remedies which it may have against the Foundation, then the
Lender shall draw upon this Guaranty Agreement.
Section 3.4. The non-prevailing party agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by the prevailing party in enforcing or
attempting to enforce this Guaranty Agreement or protecting the rights of the Lender or the City,
if any, hereunder following any default hereunder, whether the same shall be enforced by suit or
otherwise. Should the City be the non-prevailing party, the amount of any payment due hereunder
shall not be in excess of the Guarantee Amount.
Section 3.5 No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right or power may be exercised from time to time
and as often as may be deemed expedient.
ARTICLE IV
GENERAL
Section 4.1 The obligations of the City under this Guaranty Agreement shall arise absolutely
and unconditionally upon the issue, sale and delivery of the Bonds or any installment thereof. This
Guaranty Agreement is executed subsequent to the execution ofthe Use Agreement and is separate
and independent of the Use Agreement. Any modification, limitation or discharge of the City's
liability under the Use Agreement arising out of or by virtue of any bankruptcy, arrangement,
reorganization or similar proceeding shall not modify, limit, discharge or otherwise affect the
liability of the City under this Guaranty Agreement in any manner whatsoever.
Section 4.2 All moneys recovered by the Lender pursuant to this Guaranty Agreement (other
than those provided for in Section 3.4 hereof) shall be applied solely to the payment of the principal
of, premium, if any, and interest on, the Bonds in accordance with the Financing Documents. This
Guaranty Agreement is entered into by the City for the benefit of the Lender may be enforced by
or on Lender only by the Lender in accordance with the provisions of this Guaranty Agreement.
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This Guaranty Agreement shall not be deemed to create any right in, or to be in whole or in part for
the benefit of any person other than, the Lender, the City, PACT, and their permitted successors and
assIgns.
Section 4.3 This Guaranty Agreement (a) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among the parties with respect to the
subject matter hereof; (b) may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument; (c) may be
modified only by an instrument in writing signed by the duly authorized representatives of the
parties and only ifthe modification is made for the same purposes and in accordance with the same
requirements as apply for the entering into of amendments to the Financing Documents; and (d) shall
be governed in all respects, including validity, interpretation and effect, by, and shall be enforceable
in accordance with, the laws of the State of Florida. If any provision of this Guaranty Agreement
shall be held to be invalid by any court of competent jurisdiction, the invalidity of such provision
shall not affect any of the remaining provisions.
Section 4.4 This Section 4.4 concerns the resolution of any controversies or claims between
the City and the Lender, whether arising in contract, tort or by statute, that arise out of or relate to
this Guaranty (a "Claim").
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At the request of the City or the Lender, any Claim shall be resolved by binding arbitration
in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will apply
even though this Guaranty provides that it is governed by the law of a specified state.
Arbitration proceedings will be determined in accordance with the Act, the rules and
procedures for the arbitration of financial services disputes of l.A.M.S./Endispute or any successor
thereof ("J.A.M.S."), and the terms of this paragraph. In the event of any inconsistency, the terms
of this Section shall control.
The arbitration shall be administered by J.A.M.S. and conducted in Pinellas County, Florida.
All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the
request of any party, the Claims shall be decided by three arbitrators; provided however, the Lender
acknowledges that no claim against the City shall exceed the Guarantee Amount. All arbitration
hearings shall commence within 90 days of the demand for arbitration and close within 90 days of
commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the
hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement
of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written
statement of reasons for the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and enforced.
The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute
of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of
the statute of limitations, the service on l.A.M.S. under applicable l.A.M.S. rules of a notice of
Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision
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or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have
the power to award legal fees pursuant to the terms of this Guaranty.
This paragraph does not limit the right of the City or the Lender to: (i) exercise self-help
remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against
any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv)
act in a court oflaw to obtain an interim remedy, such as but not limited to, injunctive relief, writ
of possession or appointment of a receiver, or additional or supplementary remedies.
By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way
to limit this Continuing and Unconditional Guaranty to arbitrate, to the extent any Claim is not
arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury
in respect of such Claim. This provision is a material inducement for the parties entering into this
Guaranty .
No provision in this Guaranty regarding submission to jurisdiction and/or venue in any court
is intended or shall be construed to be in derogation ofthe provisions of this Guaranty for arbitration
of any controversy or claim.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty Agreement to be
executed in their names and behalf and their corporate seals to be affixed hereto and attested by their
. duly authorized officers, as of the date first above written.
CITY OF CLEARWATER, FLORIDA
Countersigned:
By:
City Manager
Mayor-Commissioner
Attest:
Approved as to form
aQjI1Z
City Attorney
By:
City Clerk
[Signatures continued on next page]
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(CORPORATE SEAL)
(SEAL)
J :\Bonds\4363\guarag3.wpd
PACT, INC.
By:
President and CEO
Attest:
By:
General Manager and CFO
Accepted this 18th day of May, 2001.
BANK OF AMERICA, N.A., Lender
By:
Senior Vice President
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