03-10
RESOLUTION NO. 03-10
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING THE LEASEHOLD MORTGAGE
ENTERED INTO BY PACT, INC., WITH BANK OF
AMERICA; 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 City of Clearwater consented to a leasehold mortgage in the
amount of $5,000,000 entered into by PACT, Inc. and Bank of America in April of 2001;
and
WHEREAS, PACT, Inc. now desires to secure additional institutional financing
for current construction and has secured a commitment from Bank of America; now,
therefore,
BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF CLEARWATER, FLORIDA:
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. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 20th
Brian J.
Approved as to form:
~ ~kin, City Attorney
Attest:
~t:~y,a~~UtM-
f' Cyn -, E. Goua:eau, City Clerk --
Resolution No. 03-10
This Instnunent 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.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT. . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.3. Security Agreement ................................................. 6
ARTICLE II GRANT....................................... . . . . . . . . . . . . . . . . . . 6
2.1. Grant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Condition of Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.3 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLEIII 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
3.8 Other Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.9 Section 697.07 of the Florida Statutes ................................... 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.1 TItle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2 Representations and Warranties in Other Documents. . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3 Reliance on Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Payment and Performance ............................................ 9
5.2 Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Compliance With Laws ..............................................9
5.4 lInpositions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.6 Restoration Following Casualty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.7 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.8 Tax and Insurance Escrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.9 Repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Inspection............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.11 Contest of Tax Assessments, Etc ...................................... 13
5.12 Expenses....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.13 Preservation of Agreements .......................................... 14
5.14 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.15 Estoppel Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.16 Indemnification... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.17 Further Assurances ................................................ 15
5.18 Junior Mortgage( s) and Rights of Mortgagee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.19 Financing Statements. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
5.20 Withholding Taxes ................................................. 16
5.21 Hazardous Material ..................... . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.22 Financial Reports, Etc .............................................. 18
5.23 Performance of Related Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.24 Performance of Other Agreements ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.25 Interest Rate Protection Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI NEGATIVE COVENANTS ......................................... 18
6 .1 Use Violations, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Care of the Mortgaged Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.3 Other Liens and Mortgages .......................................... 19
6.4 Transfer of Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Transfer of Other Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
6.6 Environmental ContaminationlHazardous Material. . . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE VII EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.1 Events of Default ..................................................20
ARTICLE VIII RIGHTS AND REMEDIES ................................... 21
8.1 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
8.2 Remedies Cumulative and Concurrent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.3 Waiver; Delay or Omission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4 Credit of Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
8.5 Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.6 Proofs of Claim ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.7 Waiver of Redemption, Notice, Marshalling, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . .25
8.8 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
8.9 Discontinuance of Proceedings ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ii
8.10 Mortgagee's Actions ............................................... 25
8.11 Mortgagee's Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IX MORTGAGEE'S PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1 Governmental Regulation of Mortgagee ................................. 26
9.2 Mortgagee's Failure to Perform ....................................... 26
9.3 Mortgagor's Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
ARTICLE X MISCELLANEOUS............................................... 27
10.1 Maximum Rate of Interest ...........................................27
10.2 Continuing Agreement .............................................. 27
10.3 Survival of Warranties and Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
10.4 No Representation By Mortgagee .....................................27
10.5 Notice..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
10.6 Mortgagee's Right to Pay and Perform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
10.7 Covenants Running With the Land .....................................28
10.8 Successors and Assigns .............................................28
10.9 Invalidity....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
10.10 Modification...................................................... 28
10.11 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.12 Strict Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.13 Arbitration and Waiver ofJmy Thal .................................... 29
10.15 Provisions Relating to the Site Lease .................................... 30
ill
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (this "Mortgage"), is made as of the _ day of ,2003 by PACT, Inc. (the
"Mortgagor"), as mortgagor and debtor, whose principal place of business is 1111 McMullen Booth Road,
Clearwater, Florida 33759, to Bank of America, N.A. (together with its successors and assigns, the
"Mortgagee"), as mortgagee and secured party, whose address is 9000 Southside Boulevard, Building 100,
Jacksonville, Florida 32256.
WHEREAS, pursuant to the terms of that certain Trust Indenture dated as of 1,2003,
(the "Indenture") by and between Pinellas County Industrial Development Authority, a public body
corporate and politic of the State of Florida (the "Issuer") and , as 'liustee (the
'Trustee"), the Issuer has issued its $ Revenue Bonds (PACT, Inc. Project), Series 2003
(the "Bonds").
WHEREAS, pursuant to the tenus of that certain Loan Agreement dated as of 1,2003
(the "Loan Agreement") by and between the Issuer and the Mortgagor, the Issuer has loaned the proceeds
derived from the sale of the Bonds to the Mortgagor (the "Loan") for the purposes of (i) financing certain
costs of construction and equipping of an expansion of a performing arts center owned by the Mortgagor,
which is located in Pinellas County, Florida (the "Project") and (ii) paying costs associated with the
issuance of the Bonds; and
WHEREAS, as a condition precedent to the issuance of the Bonds and the making of the Loan to
the Mortgagor, the Issuer has required that the Mortgagor deliver or cause to be delivered to the Trustee,
for the benefit of the holders of said Bonds, an irrevocable letter of credit to secure the payment of the
principal of and interest on the Bonds and to provide for the payment of the purchase price thereof in
accordance with the terms of the Indenture; and
WHEREAS, the Mortgagor has requested that the Bank issue its letter of credit to the Trustee, for
the account of the Mortgagor (said Letter of Credit, together with any substitute Letter of Credit and any
extensions thereof or substitutions thereof, being herein called the "Letter of Credit") in the initial amount
of$ and the Bank has agreed to issue such Letter of Credit upon and subject to the terms,
provisions and conditions set forth in a Letter of Credit and Reimbursement Agreement dated as of
1,2003, between the Mortgagor and the Mortgagee (the "Reimbursement Agreement");
NOW, THEREFORE, in consideration of the foregoing and the issuance of the Letter of Credit,
Mortgagor does hereby agree as follows:
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 Definitions. Terms used in this Mortgage and not otherwise defined herein shall have the
meanings ascribed thereto pursuant to the Reimbursement Agreement. 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 intetpretation 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 vn 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.
(f) 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.
2
(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 Letter of Credit, the
Reimbursement Agreement, the Related Documents 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.
0) Land: The real property described in Exhibit "A" attached hereto and made a part
hereof, together withall 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.
(m) Leases: Any and a1lleases, 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.
3
(n) Mortgaged Property: The Mortgagor's interest in the Land, hnprovements,
Fixtures, Leases, Rents and Personal Property together with:
(i) all judgments, awards of damages and settlements hereafter made resulting
from condemnation proceedings or the taking of the Mortgaged Property or any part thereof under the
power of eminent domain, or by agreement in lieu thereof, or for any damage thereto caused by any
governmental action (whether by such taking or otherwise), such as without limitation, any award for
change of grade of streets;
(ii) all judgments, awards and settlements hereafter made, and all insurance
proceeds hereafter paid for any damage to the Mortgaged Property, and all unearned insurance premimns
on any insurance policies maintained by the Mortgagor pursuant to this Mortgage;
(ill) all awards and refunds hereafter made withrespect to any hnposition; and
(iv) the estate, right, title, interest, privilege, claim or demand whatsoever of
Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged Property.
The term Mortgaged Property includes any part of the foregoing property described as Mortgaged
Property, and all proceeds, products, replacements, improvements, betterments, extensions, additions,
substitutions, renewals, accessories, and appurtenances thereto and thereof.
(0) Mortgagee: Bank of America, N.A. and its successors and assigns.
(P) Mortgagor: PACT, Inc.
(q) 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 Reimbursement Agreement, this Mortgage or the other Related
Documents, together withallreasonable expenses, attorneys' fees, paralegals' fees and legal assistants' fees
incurred by Mortgagee in the preparation, execution, perfection or enforcement of any document relating
to any of the foregoing, and including, but not limited to, any and all payments due Mortgagee under any
Interest Rate Protection Agreement.
(r) Partnership: Any general or limited partnership, joint venture, or other form of
partnership, howsoever designated.
(s) 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 Letter of Credit and
acknowledged by the Bank in writing.
4
(t) Person: Any individual, c01poration, partnership, joint venture, association, joint
stock company, trust, unincorporated organization, government, or agency or political subdivision thereof,
or any other form of entity.
(u) Personal Property: All of the following property ofMortgagorwhethernow 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)
goods to become Fixtures;
all Fixtures (to the extent same are not deemed to be real property) and
(iii) all accounts, accounts receivable, otherreceivables, contract rights, chattel
paper, instruments and documents, including 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, all Pledges, corporate
or other business records and books, computer records whether on tape, disc or otherwise stored,
blueprints, surveys, architectural or engineering drawings, plans and specifications, trademarks, tradenames,
goodwill, telephone numbers, 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) the Site Lease and all Leases and Rents (to the extent same are not deemed
to be real property);
5
(viii) alljudgments, awards ofdarnages and settlements from any condemnation
or eminent domain proceedings regarding the Land, the hnprovements or any of the Mortgaged Property;
(ix) all insurance policies required by this Mortgage, the Reimbursement
Agreement or the Related Documents, the unearned premiums therefor and all loss proceeds thereof;
(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.
(w) 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.
(x) 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.
(y) Site Lease: The Lease, dated March 7,2001, between City of Clearwater,
Florida, and PACT, Inc., recorded in Official Records Book 11377, Page2014, ~ ~., 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 for convenient reference only, and shall
not affect the construction or interpretation of any of the terms and provisions set forth herein.
1.3. Security Agreement. This Mortgage constitutes a "Security Agreement" within the meaning
of and shall create a security interest under the Uniform Commercial Code-Secured Transactions as
adopted by the State of Florida, with respect to the Fixtures, Leases, Rents and Personal Property. A
carbon, photographic or other reproduction of this Mortgage or of any financing statement shall be sufficient
as a financing statement. The debtor's principal place of business and the secured party's address is set
forth in the introduction to this Mortgage.
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ARTICLE II
GRANT
2.1. Qnmt. 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 ifMortgagor shall pay, observe, perform and discharge the Obligations, or cause same
to be paid, observed, performed and discharged in strict accordance with the tenns 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 Subro2ation. The Mortgagee is hereby subrogated to the claims and liens of all parties
whose claims or liens are fully or partially discharged or paid withthe 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 Mort2agor. as trustee. until Default. So long as no Event of Default
has occurred and which, after notice and any applicable grace period, remains uncured, 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
7
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 ofMort~a~ee. 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
Reimbursement Agreement and the Related 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 NotificationofMortga~ee's Rights. Mortgagee shall have the right, but not the obligation,
at any time and from time to time, to notifY any tenant under any Lease of the rights of Mortgagee as
provided in this Article III and Mortgagor, upon demand from Mortgagee, shall confirm to such tenant the
existence of such rights.
3.7 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 III, 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, 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 pennit 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.
3.8 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.
8
3.9 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 N
REPRESENTATIONS AND WARRANTIES
4.1 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
Permitted 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, 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
ofallpersonsandpmtieswho~oeveL
4.2 Representations and Warranties in Other Documents. All of the representations and
warranties of the Mortgagor contained in the Reimbursement Agreement and the other Related Documents
are true and correct in all material respects.
4.3 RelianceonRe.presentations. 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 examinationofthe public records
in Tallahassee, Florida and in the county 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 Letter of Credit, the Reimbursement Agreement,
the Related Documents 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 Letter of Credit, the
Reimbursement Agreement, the other Related Documents, the Bonds 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 this
Mortgage, the Letter of Credit, the Reimbursement Agreement, the other Related Documents or the Bonds
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 ofloss," "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).
10
(b) Liability Insurance. Mortgagor will obtain and keep in full force a "Broad Form
Comprehensive General Liability" insurance coverage for Mortgagor in the mininnnn coverage reasonably
acceptable to the Mortgagee.
(c) Flood Insurance. If at any time the Land or any portion thereofis 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, ifless, the full insurable replacement value of
the Mortgaged Property.
(d) Builder's Risk Insurance. During any construction activity, a "special causes ofloss"
(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 vandalism/Malicious Mischief
Endorsements.
( e) Other Insurance. Boiler and machinery insurance, worker's compensation insurance,
wind damage insurance, and other insurance coverages as Mortgagee may reasonably require.
The 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 ATIMA" 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' (ifobtainable, 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 25-S (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.
Real Estate Banking Group
17th Floor
1111 East Main Street
VA2-300-17-01
Richmond, VIrginia 23219
Attention: Ann Lewis
5.6 Restoration Followin~ 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
11
empowered (but not obligated or required) to make proof ofloss and to settle, adjust or compromise any
claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All
proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagor and shall be applied firstto
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 and the Bonds (including optional redemption thereof) 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 filingthereof, Mortgagor shall immediately give written notice
thereofto 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 and the Bonds (including through optional redemption thereof) to be immediately
due and payable, and upon ten (10) days written notice from Mortgagee to Mortgagor, Mortgagor shall
instruct the 'liustee to call all of the Bonds for optional redemption on the earliesat practicable date and
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 or the Bonds
(including optional redemption thereof) whether or not due, in such order as Mortgagor may elect, or to
12
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.
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 first day of each month, 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 corrnningled 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 and the
Bonds (including through optional redemption), 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
Govemmental 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 this
Mortgage, the Letter of Credit, the Reimbmsement Agreement and the preparation, execution, and delivery
of the other Related Documents including, but not limited to, reasonable fees and disbursements of counsel
13
appointed by Mortgagee, and all recording costs and expenses, documentary stamp tax and intangible tax,
if lawfully required on the entire amount of the Bonds, and other taxes, surveys, appraisals, premiums for
policies of title and other insurance and all other fees, costs and expenses, if any, set forth in the
Reimbursement Agreement, the Letter of Credit, this Mortgage or otherwise connected with the Bond
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 ofDefault, 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 .inrem 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' 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 A~ements. Mortgagor shall preserve and keep in full force and effect
all agreements, approvals, pennits and licenses necessary for the development, use and operation of the
Mortgaged Property for its intended pmpose or pmposes.
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 EstoppelAffidavits. 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 hannless Mortgagee and its directors, officers, agents, employees
attorneys, successors and assigns from and against any and all liabilities (including strict liability), losses,
14
suits, proceedings, settlements, judgments, orders, penalties, fines, liens, assessments, claims, demands,
damages, injuries, obligations, costs, disbursements, expenses or fees, of any kind or nature (including
attorneys' fees and expenses paid or incurred in connection therewith) arising out of or by reason of (i) an
incorrect legal description of the Land; (ii) any action, or inaction of Mortgagor in connection with the this
Mortgage, the other Related 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 Materialon, in, under or from
the Mortgaged Property, in connection with Mortgagor's operations on the Mortgaged Property, or
othetwise; all of the foregoing regardless of whether witllln 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 Mort"a~e(s) and Ri~ts ofMort~a~ee. (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, (ill) 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 thereofto 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 thereofmay 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 reasonable notice to and
demand upon Mortgagor, and without releasing Mortgagor from any Obligation and without waiving any
15
Event ofDefault 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, inthe name of Mortgagor, and Mortgagor hereby constitutes
and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with
an interest, with full power of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to execute and file any and all financing statements.
5.20 Withhol~ 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 othelWise) 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 amolDlt equal to the amount whichMortgagee would have
received had no such withholding or deduction been required to be made. In the event of any such
withholding or deduction, Mortgagor shall deliver to Mortgagee forthwith after receipt thereof the official
receipt or other official documentation evidencing the payment of the amount so withheld or deducted.
(b) If Mortgagor shall fail to make any withholding or deduction so required to be
made, Mortgagee reserves the right to make payment thereof to the appropriate Governmental Authority.
If Mortgagee makes such payment under any applicable law or regulation or if as a result of the
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interpretationthereofbyanyGovernmentalAuthoritycharged 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 inreduction
of accrued, unpaid interest under the Obligations.
5.21 Hazardous Material (a) Mortgagor shall immediately notify Mortgagee orally and in writing
(i) if Mortgagor becomes aware of the presence of any Hazardous Material or other environmental problem
or liability on, in, under, released from or associated with the Mortgaged Property, 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 Mortgaged Property or any part thereofwhich, 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.
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(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.
5.22 Financial ReJ)orts. 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 Related Documents. Mortgagor shall duly and punctually perform all
covenants, terms and agreements expressed as binding upon it under all of the Related Documents.
5.24 Performance of Other Af:reements. 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 Interest Rate Protection Af:reements. Mortgagor shall duly and punctually perform all
covenants, terms and agreements expressed as binding upon it under any Interest Rate Protection
Agreements. Mortgagor acknowledges that its obligations under any Interest Rate Protection Agreement
are obligations secured by this Mortgage. Further, Mortgagor acknowledges and agrees that the
occurrence of any event of default under any Interest Rate Protection Agreement shall be a default
hereunder, and vice versa.
ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations. Etc. Mortgagor shall not use the Mortgaged Property or knowingly allow
the same to be used or occupied for any unlawful purpose or in violation of any Governmental Requirement
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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 ifanywork 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.
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 lienor 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 Related Documents) the Mortgaged Property or
income therefrom, other than this Mortgage, the other Related Documents and the Permitted litle
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.
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(c) Mortgagor shall not directly or indirectly, take, acquire, or permit to be taken or
acquired by any other party, any interest whatsoever in any permitted Junior Mortgage without the prior
written consent of Mortgagee.
6.4 Transfer ofMort&a~edProperty. Except as may otherwise be expressly permitted in the
Reimbursement Agreement or the Related 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 ContaminationIHa7.ardous 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, 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 Related Document
by or on behalf of Mortgagor is at any time materially false, misleading, or breached;
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(iv) Judgment. Ifa finaljudgment for the payment of money of more than $100,000 is
rendered against Mortgagor or the 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 the 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 the 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 BankruptcyCode 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;
(vii) Dissolution. If Mortgagor or the 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 Related Documents. If any default occurs under any of the other
Related Documents or if any obligation of Mortgagor under any of the other Related 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.
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ARTICLE VIII
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 lUlpaid 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 lake 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 fuil to surrender or deliver the Mortgaged
Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or order
conferring on Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate
possession to Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically
consents.
(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 detennine 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
22
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 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 levyofany 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) Incase ofa foreclosure sale ofallor 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 Default 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
23
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 underthe UniformCommercialCode-Secured Transactions as adopted by the State or other
applicable law as well as all other rights and remedies possessed by Mortgagee, all 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 Govemmental Requirement might impair the security hereunder or be prejudicial to the Mortgagee's
interest.
8.2 Remedies Cwnulative and Concurrent. No right, power or remedy of Mortgagee as
provided in the Bonds, this Mortgage, the Loan Agreement, or the other Related 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
24
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 herelUlder 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 lUlder 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 ,Sak. Any sale or sales made lUlder or by virtue of this Article shall operate to divest all
the estate, right, title, interest, claim and demand whatsoever at law or in equity, of the Mortgagor and all
Persons, except tenants pursuant to Leases approved by Mortgagee, claiming by, through or lUlder
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 GovemmentalAuthority,
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 amolUlts which may become due and payable after such date.
8.7 Waiver of Redemption. Notice. ~. 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 lUlder the Related Documents, or otherwise, and
(c) any right to have the Mortgaged Property marshalled.
25
8.8 Ap.,plication 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 Wlder 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 amoWlt of the Obligations Wltil all
of the Obligations have been paid in full.
8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded to enforce any right
hereWlder or Wlder any Related 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 following
actions, and neither the Mortgagor, any endorser, co-maker, surety or guarantor of the Obligations, nor
any other Person (hereinafter in this Section 8.1 0 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 Letter of Credit, the Reimbursement Agreement, this Mortgage and the other Related
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 Wlpaid Obligations in such
manner, in such amoWlts, 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,
distwbing or impairing in any manner whatsoever the validityand 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.
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ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Regulation of Mortgagee. Mortgagee is subject to various Governmental
Authorities and the laws, rules and regulations enacted, adopted and promulgated by them. To the extent
that Mortgagee's authority to perform its obligations (if any) under this Mortgage, now or hereafter, may
be limited or regulated by such Governmental Authorities, Mortgagee is hereby excused from such
performance.
9.2 Mortgagee's Failure to Perform. If Mortgagee fails to perform its obligations (if any) under
this Mortgage (except to the extent excused therefrom as provided in Section 9.1 above), Mortgagor shall
notify Mortgagee in writing (the "Notice") within thirty (30) days after Mortgagor's obtaining knowledge
of such failure. Each such Notice shall describe in detail the act or event constituting the non-performance
by Mortgagee. Mortgagee shall have thirty (30) days after its receipt of the Notice to cure any such failure
to perform, unless such cure can not be accomplished using reasonable efforts within said thirty (30) day
period, in which case Mortgagee shall have such additional time as may be necessary, using reasonable
efforts, to cure such non-performance (the "Mortgagee Cure Period").
9.3 Mortgagor's Rights and Remedies. The giving of the Notice and the expiration of the
Mortgagee Cure Period shall be conditions precedent to any right of the Mortgagor to bring an action
against Mortgagee.
ARTICLE X
MISCELLANEOUS
10.1 Maximmn Rate of Interest. Nothing contained herein, in the Reimbursement Agreement,
or in any other Related Document, 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 any Obligations, to pay
interest, or any charge in the nature of interest, in an amount or at a rate which exceeds the maximmn 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 Obligations, exceed the maximum rate of interest allowed by applicable law, as amended
from time to time, then such excess swn shall be credited against the principal balance of the Obligations,
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 maximmn rate
of interest allowed by applicable law, as amended from time to time. The Mortgagee may, in determining
the maxinnnnrate 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.
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10.2 Continuini A~ment. 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 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 issuance of the Bonds and the execution and delivery
of the Letter of Credit, and shall continue in full force and effect until all of the Obligations shall have been
paid and performed in full.
10.4 No Re.vresentation By Mort:~a~ee. 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
Related 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 beenreceived if delivered or attempted to be delivered by United
States first class mail, return receipt requested, postage prepaid, addressed to the party for whom it is
intended at its address specifIed in the first paragraph hereof or such other address specifIed in a notice
given as provided herein.
10.6 Mort~a~ee's Ri~t to Pay and Perform If Mortgagor shall fail to duly payor perform any
of the Obligations required by this Mortgage, thenat 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 Rur1nin.g With the Land. All covenants contained in this Mortgage shall be
binding on the Mortgagor and shall run with the Land
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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.
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 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 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.
10.13 Arbitration and Waiver ofJmy mal. This Section 10.13 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 Qaim shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act (Tide 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 .AM.S./Endispute or any successor thereof
("lAM.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 lAM.s. and conducted in Pinellas County, Florida. All
Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, uponthe 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.
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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, ifso, to dismiss the arbitration on that basis. For purposes of the application of the statute
of limitations, the service onlA.M.S. under applicable I.A.M.S. rules ofa 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 Mortgagee 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, rryunctive 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 theymay
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 Relatin~ 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 nu.lli:fY any terms,
provisions, covenants, conditions or obligations of the Site Lease, that a true copy of this Mortgage together
with the Bonds 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 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 tm1:il
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, 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.
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IN WITNESS WHEREOF, Mortgagor has executed this instrwnent as of the day and year first
above written.
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
PACT,INC.
By:
Its President and CEO
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STATE OF FLORIDA )
) SS:
COUNTY OF PINELLAS )
The foregoing instnnnent was acknowledged before me this _ day of , 2003 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\224\mortg.ge(3). wpd
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EXHIBIT "A"
LEGAL DESCRIPTION
G:\14184\224\mortgage(J). wpd
33