EXHIBIT B - FORM OF MORTGAGE AND SECURITY AGREEMENT
EXHIBIT B
FORM OF MORTGAGE AND SECURITY AGREEMENT
Resolution 99-18
DRAFT #3
OS/28/99
BMO #3195
This instrument was prepared by or under the
supervision of (and after recording should be returned
to):
Robert C. Reid, Esq.
Bryant, Miller and Olive, P.A.
201 South Monroe Street
Suite 500
Tallahassee, Florida 32301
(Space reserved for Clerk of Court)
MORTGAGE AND SECURITY AGREEMENT
from
BEF, INC.,
a Florida not-for-profit corporation
(Mortgagor)
to
CITY OF CLEARWATER, FLORIDA
(Mortgagee)
relating to
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS
(BEF, Inc. Project)
Dated as of July 1, 1999
THIS INSTRUMENT, THE NOTES AND THE MORTGAGOR'S OBLIGATIONS SECURED
HEREBY ARE GIVEN TO SECURE THE BONDS DESCRIBED HEREIN WHICH ARE
ISSUED PURSUANT TO THE PROVISIONS OF CHAPTER 159, PART II, FLORIDA
STATUTES, AS AMENDED, AND THIS INSTRUMENT, THE NOTE, THE MORTGAGOR'S
OBLIGATIONS AND THE BONDS ARE EXEMPT FROM FLORIDA DOCUMENTARY
STAMP TAX AND FLORIDA INTANGIBLE PROPERTY TAX AS PROVIDED IN
SECTIONS 159.27(1) AND 159.31, FLORIDA STATUTES, AS AMENDED.
Section 1. 1.
Section 1.2.
Section 1.3.
Section 2.1.
Section 2.2.
Section 2.3.
Section 2.4.
Section 2.5.
Section 2.6.
Section 2.7.
Section 2.8.
Section 2.9.
Section 3. 1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
INDEX
(The Index is not a part of this Mortgage
and is only for convenience of reference.)
ARTICLE I
DEFINITIONS
Use of Defined Terms ................................... 6
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE II
PRESERVATION OF SECURITY
Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
After-Acquired Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Liens and Encumbrances. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 12
Security Agreement and Financing Statement . . . . . . . . . . . . . . . . . . . . 13
No Claims Against Mortgagee ............................. 13
Security for Future Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Inspection .......................................... 16
ARTICLE III
TAXES, MECHANICS' LIENS AND INSURANCE
Payment of Taxes and Other Governmental Charges ............... 17
Mechanics' and Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Workers' Compensation Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Title Insurance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IV
MAINTENANCE AND USE OF MORTGAGED PROPERTY
Compliance with Legal and Insurance Requirements ............... 20
Maintenance and Use of Mortgaged Property . . . . . . . . . . . . . . . . . . . . 20
Additions. Modifications and Improvements .................... 21
Substitutions and Removals .......... . . . . . . . . . . . . . . . . . . . . . 21
Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Section 5. 1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 6.1.
Section 6.2.
Section 6.3.
Section 6.4.
Section 6.5.
Section 6.6.
Section 6.7.
Section 6.8.
Section 6.9.
Section 6.10.
Section 7. 1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 7.6.
Section 7.7.
Section 7.8.
Section 7.9.
Section 7.10.
Section 7. 11.
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
ARTICLE V
DAMAGE, DESTRUCTION AND CONDEMNATION
Damage to or Destruction of Proiect Facilities ................... 23
Use of Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Investment and Disbursement of Net Proceeds ..... . . . . . . . . . . . . . . 25
ARTICLE VI
REMEDIES
Right to Perform Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Events of Default ..................................... 26
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Waiver of Appraisement: Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Appointment of Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Possession, Management and Income: Assignment: Application of Moneys
Received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Provisions Subject to Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . 29
No Waiver by Mortgagee ................................ 29
Discontinuance of Proceedings and Restoration of Status Quo ......... 29
ARTICLE VII
MISCELLANEOUS
Additional Security .................................... 30
Release of Mortgaged Property and Easements . . . . . . . . . . . . . . . . . . . 30
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Books. Records and Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Estoppel Affidavits .................................... 31
Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
No Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Amendments, Changes and Modifications . . . . . . . . . . . . . . . . . . . . . . 31
Disposition ......................................... 32
Issuer's Right of Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PROJECT SITE LEGAL DESCRIPTION
PERMITTED ENCUMBRANCES
FORM OF PROMISSORY NOTE
ASSIGNMENT OF MORTGAGE AND SECURITY AGREEMENT
III
MORTGAGE AND SECURITY AGREEMENT
Maximum Indebtedness Not to Exceed $35,000,000
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), dated as of
July 1, 1999, executed and delivered by BEF, INC., a Florida not-for-profit corporation (the
"Mortgagor"), to the CITY OF CLEARWATER, FLORIDA, a municipal corporation duly
created and existing under the laws of the State of Florida (the "Issuer" or the "Mortgagee"),
under the circumstances summarized in the following recitals (the capitalized terms not defined
in the recitals hereto are defined in Article I hereot):
A. Pursuant to the Act, the Issuer has issued, sold and delivered its Series 1999 Bonds
in the aggregate principal amount of $ , consisting of $
aggregate principal amount of Revenue Bonds, Series 1999A (BEF, Inc. Project) (the "Series
1999A Bonds"), $ aggregate principal amount of Revenue Bonds, Series 1999B (BEF,
Inc. Project), Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the "Series 1999B Bonds")
and $ aggregate principal amount of Taxable Revenue Bond, Series 1999C (BEF,
Inc. Project)(the "Series 1999C Bonds" and together with the Series 1999A Bonds and the Series
1999B Bonds, the "Series 1999 Bonds"). The Series 1999 Bonds have been issued pursuant to the
Indenture between the Issuer and First Union National Bank of Florida, Jacksonville, Florida, as
Trustee. Reference is hereby made to the Indenture, a counterpart of which is on file and
available for inspection at the Notice Address of the Trustee.
B. Pursuant to the Agreement to which reference is hereby made and a counterpart of
which is on file and available for inspection at the Notice Address of the Trustee, the Issuer has
loaned to the Mortgagor the proceeds received from the sale of the Series 1999 Bonds and, if
Additional Bonds are issued under the Indenture, the Issuer shall loan to the Mortgagor the
proceeds received from any such Additional Bonds.
C. By the Agreement and as further evidenced by the Series 1999 Notes and any
Additional Notes which hereafter may be executed to evidence loans made with proceeds of any
Additional Bonds (collectively, the "Notes"), the Mortgagor is required to repay all amounts so
loaned by Issuer to the Mortgagor (collectively, the "Loan") by making Loan Payments, as
defined in the Agreement, to the Trustee, at such times and in such amounts as shall be sufficient
to pay the total amounts due with respect to the principal of and premium, if any, and interest on
the Series 1999 Bonds and any Additional Bonds (collectively, the "Bonds") payable at any time
for that period or payable at that time (the "Debt Service Charges"). The final principal payment
on the Series 1999 Bonds, if not earlier redeemed, is due and payable on November 15, 20_.
D. By the Indenture, the Issuer has, with the consent of the Mortgagor, assigned to the
Trustee, as security for the payment of the Debt Service Charges (i) all of its rights and interest
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under, in and to the Agreement except for the Unassigned Rights (as therein defined), and (ii) the
Revenues (as defined in the Indenture).
NOW THEREFORE, as an inducement to and in consideration of the issuance of the
Series 1999 Bonds by the Issuer, the loan of the proceeds of the sale of the Series 1999 Bonds by
the Issuer to the Mortgagor pursuant to the Agreement, and for other valuable consideration, the
receipt of which is hereby acknowledged, for the purpose of securing the Bonds and for the
purpose of securing the following, whether now or hereafter owing:
(i) All payments to be made by the Mortgagor under the Agreement, the Notes
and this Mortgage, including, without limitation, all Loan Payments and
Additional Payments,
(ii) Any amounts advanced or costs incurred by the Mortgagee for the
protection of the hereinafter described Mortgaged Property, as hereinafter
defined, or in connection with the enforcement of this Mortgage, the Notes,
the Indenture or the Agreement, together with interest thereon at the
Interest Rate for Advances,
(iii) The performance and observance of each covenant and agreement of the
Mortgagor contained in this Mortgage, the Notes and the Agreement, and
(iv) all fees and expenses of the Trustee under the Indenture.
the Mortgagor does hereby grant, bargain, sell, convey, mortgage, assign, grant a security interest
in and transfer unto the Mortgagee, its successors and assigns, all of its respective right, title and
interest in and to the following property, whether now owned or hereafter acquired (the
"Mortgaged Property"):
(a) All that certain piece, parcel or tract of land in which the Mortgagor has a fee
simple interest situate in the County of Pinellas, State of Florida (hereinafter called
the "Project Site"), more particularly described in Exhibit A attached hereto and
made a part hereof;
(b) All lands, buildings, structures and improvements of every nature whatsoever now
or hereafter situated on the Project Site, and all fixtures, machinery, equipment,
furniture and other personal property of every nature whatsoever now or hereafter
owned by the Mortgagor and located in, on, or intended to be used in connection
with the operation of the Project Site, buildings, structures or other improvements,
betterments, renewals and replacements to any of the foregoing; and all of the
right, title and interest of the Mortgagor in any such personal property or fixtures
subject to a lease, conditional sales contract, chattel mortgage or similar lien or
claim together with the benefit of any deposits or payments now or hereafter made
by the Mortgagor or on Mortgagor's behalf (the "Project Facilities");c
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(c) All easements, rights of way, strips and gores of land, streets, ways, alleys,
passages, sewer rights, rights, titles, interest, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the property hereinabove described, or which hereafter shall
in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Mortgagor and the reversion and reversions remainder and
remainders, rents, issues, and profits resulting from or relating to the Mortgaged
Property, and all the estate, right, title, interest, property, possession, claim and
demand whatsoever, at law as well as in equity, of the Mortgagor of, in and to the
same, including, but not limited to, 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,
the alteration of the grade of any street, or for any damage (whether caused by
such taking or otherwise) to the Mortgaged Property or any part thereof, or to any
rights appurtenant thereto, and all proceeds of any sales or other dispositions of the
Mortgaged Property or any part thereof;
(d) All rents, royalties, issues, profits, revenue, income and other benefits from the
Mortgaged Property to be applied against the indebtedness secured hereby,
provided however, that permission is hereby given to Mortgagor so long as no
default has occurred hereunder, to collect, receive, take, use and enjoy such rents,
royalties, issues, profits, revenue, income, licenses, foreclosures, concessions and
other benefits as they become due and payable, but not in advance thereof. The
foregoing assignment shall be fully operative without any further action on the part
of either party and, specifically, Mortgagee shall be entitled, at its option upon the
occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue,
income and other benetits from the Mortgaged Property, whether or not Mortgagee
takes possession of the Mortgaged Property. Upon any such notice of default
hereunder, the permission hereby given to Mortgagor to collect such rents,
royalties, issues, profits, revenue, income and other benefits from the Mortgaged
Property shall terminate and such permission shall not be reinstated upon a cure of
the default without Mortgagee's specitic written consent. Exercise of rights under
this paragraph and the application of any such rents, royalties, issues, profits,
revenue, income or other benetits to such indebtedness, 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;
(e) All right, title and interest of Mortgagor in and to any and all leases now or
hereafter on or affecting the Mortgaged Property (excepting the portion of
escrowed payments due pursuant to any residency agreements which are excluded
from the detlnition of "Revenue" hereunder), together with all security therefor
and all monies payable thereunder, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under any such lease and
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subject to any nondisturbance agreement executed by the Mortgagee with respect
thereto. The foregoing assignment of any lease shall not be deemed to impose upon
Mortgagee any of the obligations or duties of Mortgagor provided in any such
lease, and Mortgagor agrees to fully perform all obligations of the lessor under all
such leases. Upon Mortgagee's request, Mortgagor agrees to send to Mortgagee
a list of all leases covered by the foregoing assignment and as any such lease shall
expire or terminate or as any new lease shall be made, Mortgagor shall so notify
Mortgagee in order that at all times Mortgagee shall have a current list of all leases
affecting the Mortgaged Property. Mortgagee shall have the right, at any time and
from time to time, to notify any lessee of the rights of the Mortgagee as provided
by this paragraph. From time to time, upon request of Mortgagee, Mortgagor shall
specitically assign to Mortgagee as additional security hereunder, by an assignment
in writing in form approved by Mortgagee, all right, title and interest of Mortgagor
in and to any and all leases now or hereafter on or affecting the Mortgaged
Property, together with all security therefore and all monies payable hereunder,
subject to the conditional permission hereinabove given to Mortgagor to collect the
rentals under any such lease. No such separate assignment instrument shall be
necessary, however, to grant to Mortgagee rights in such leases as this instrument
is intended to be a self-operative present assignment of such leases and all rights
thereunder. Mortgagor shall also execute and deliver to Mortgagee any
notification, financing statement, or other document reasonably required by
Mortgagee to perfect the foregoing assignment as to any such lease. (This
instrument constitutes an absolute and present assignment of the terms, royalties,
issues, protits, revenue, income, and other benefits from the Mortgaged Property,
subject, however, to the conditional permission given to Mortgagor to collect,
receive, take, use and enjoy the same as provided hereinabove; provided, further,
that the existence or exercise of such right of Mortgagor shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part, by
Mortgagor and any such subsequent assignment by Mortgagor shall be subject to
the rights of Mortgagee hereunder); and
(t) A security interest in (i) all property, equipment, inventory and fixtures now or
hereafter affixed to or located on the Mortgaged Property (except motor vehicles
subject to certificate of title), which, to the fullest extent permitted by law, are or
shall be deemed tixtures and a part of the real property, (ii) all articles of personal
property now or hereinafter acquired and all materials situated or hereinafter
delivered to the Mortgaged Property for the use and operation of said property or
for use in any construction being conducted thereon, and now or hereinafter owned
by Mortgagor; (iii) all contract rights, including construction contracts, architects
contracts, service contracts, advertising contracts, payment or performance bonds,
licenses and permits, purchase orders, equipment leases, all other contract rights
now or hereinafter associated with the Mortgaged Property, general intangibles,
actions and rights of action, all deposits (to the extent such deposits constitute
"Revenues" as hereinafter detined), prepaid expenses, permits, licenses, including
4
all rights to Net Proceeds now or hereinafter acquired or accruing to the
Mortgagor, (iv) all right, title and interest of the Mortgagor in all tradenames and
trademarks now or hereinafter used in connection with the use of the Mortgaged
Property, (v) all accounts receivable of the Mortgagor, general intangibles of the
Mortgagor and all Revenues now or hereafter accruing to Mortgagor including any
cash, securities or other assets of the Mortgagor held by the Trustee, and (vi) all
proceeds, products, replacements, additions, substitutions, renewals and accessions
of any of the foregoing. Mortgagor hereby grants to the Mortgagee, as a secured
party, a security interest in all personal property described herein. This Mortgage
is a self-operative security agreement with respect to such property, but Mortgagor
agrees to execute and deliver on demand such other security agreements, financing
statements and other instruments as Mortgagee may request in order to perfect its
security interest or to impose the lien hereof more specifically upon any of such
property. In addition to those specified herein Mortgagee shall have all the rights
and remedies of a secured party under the Uniform Commercial Code.
PROVIDED, HOWEVER, that Mortgaged Property shall not include any amounts on
deposit in the Operating Reserve; and
PROVIDED, FURTHER, that these presents are upon the condition that, if the Mortgagor
shall payor cause to be paid to the Mortgagee all amounts payable in respect to the Agreement,
the Notes, this Mortgage, including, without limitation, all Loan Payments and Additional
Payments and any amounts advanced or costs incurred by the Mortgagee for the protection of the
Mortgaged Property, or in connection with the enforcement of this Mortgage, the Notes or the
Agreement on the dates on the day or days when payment shall become due, all without deduction
or credit for taxes or other similar charges paid by the Mortgagor, and shall keep, perform and
observe all and singular the covenants and promises in the Agreement, and the Notes, and any
renewal, extension, consolidation or modification thereof, and in this Mortgage expressed to be
kept, performed and observed by and on the part of the Mortgagor, all without fraud or delay and
Mortgagee shall have no commitment or obligation to advance funds to or for the benefit of the
Mortgagor, then this Mortgage, and all the properties, interest and rights granted, bargained, sold,
remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, pledged, delivered,
set over, warranted and confirmed, shall cease, terminate and be void; but shall otherwise remain
in full force and effect.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors
and assigns, forever;
AND, IT IS HEREBY COVENANTED that this Mortgage is given and the Mortgaged
Property is to be held upon the terms herein set forth.
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ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and terms elsewhere
defined in this Mortgage or by reference to another document, the words and terms set forth in
Section 1.2 hereof shall have the meanings therein set forth unless the context or use expressly
indicates different meaning or intent. Such definitions shall be equally applicable to both the
singular, possessive and plural forms of any of the words and terms therein defined.
Section 1.2. Definitions. As used herein:
"Act" means the Florida Constitution, the Charter of the Issuer and Chapter 154, Parts II
and III of Chapter 159 and Chapter 166, Florida Statutes, as amended and other applicable
provisions of law.
"Additional Bonds" means the Additional Bonds as defined in the Indenture.
"Additional Notes" means any non-negotiable promissory note or notes, in addition to the
Series 1999 Notes, delivered by the Mortgagor to the Issuer and assigned by the Issuer to the
Trustee in connection with the issuance of Additional Bonds as provided in the Agreement.
"Additional Payments" means the payments required to be paid by the Mortgagor under
Section 4.2 of the Agreement.
"Agreement" means the Loan Agreement dated as of even date with this Mortgage,
between the Issuer and the Mortgagor, as amended or supplemented from time to time.
"Bond Fund" means the Bond Fund created by the Indenture.
"Bond Resolution" means (a) when used with reference to the Series 1999 Bonds, the
resolution providing for their issuance and approving the Agreement, the Indenture and related
matters; (b) when used with reference to an issue of Additional Bonds, the resolution providing
for the issuance of the Series 1999 Bonds, to the extent applicable, and the resolution providing
for the issuance of the Additional Bonds and approving any amendment or supplements to the
Agreement and the Indenture and related matters; and (c) when used with reference to Bonds when
Additional Bonds are outstanding, the resolution providing for the issuance of the Series 1999
Bonds and the resolution providing for the issuance of the then outstanding Additional Bonds; in
each case as amended or supplemented from time to time.
"Bonds" means the Series 1999 Bonds and any Additional Bonds.
"Commercial Code" means the Uniform Commercial Code as enacted in the State, as from
time to time amended or supplemented.
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"Debt" means all obligations for borrowed money and installment sale and capitalized lease
obligations incurred or assumed by the Mortgagor and any guaranty by the Mortgagor of
indebtedness of any other Person.
"Debt Service Reserve Fund" means the Debt Service Reserve Fund created in Section
5.01 of the Indenture.
"Engineer" means an individual or firm acceptable to the Mortgagee and qualified to
practice the profession of engineering or architecture under the laws of the State.
"Entrance Fees" shall mean the fees, other than monthly service charges by the residents
of the Mortgaged Property to the Company for the purpose of obtaining the right to reside in the
Mortgaged Property, including any refundable resident deposits described in Residency
Agreements with respect to the Mortgaged Property, but shall not include any such amounts that
are (i) escrowed pursuant to the requirements of Chapter 651, Florida Statutes or any similar law
unless and until such amounts are released from such escrow to the Company or (ii) escrows
otherwise set aside pursuant to the requirements of any Residency Agreement prior to occupancy
of the unit covered by such Residency Agreement (which amounts shall be included if and when
such occupancy occurs).
"Event of Default" means any of the events described as an Event of Default in Section
6.2 hereof.
"Excluded Property" means the property described in Exhibit G of the Agreement.
"Force Majeure" means any of the causes, circumstances or events described as
constituting Force Majeure in Section 6.2 hereof.
"Holder" or "Holder of a Bond" means the person in whose name a bond is registered on
the Bond Register.
"Indenture" means the Trust Indenture dated as of even date with this Mortgage between
the Issuer and the Trustee, as amended or supplemented from time to time.
"Independent Counsel" means an attorney or tirm of attorneys acceptable to the Mortgagor
and duly admitted to practice law before the highest court of the State.
"Insurance Requirements" means those insurance requirements described in Section 4.1
hereof.
"Interest Rate for Advances" means the lesser of (i) the Prime Rate or (ii) the maximum
interest rate permitted by applicable law.
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"Issuer" means City of Clearwater, Florida, a public body corporate and politic duly
created and validly existing under the laws of the State of Florida including, particularly, the Act,
and its successor and assigns.
"Legal Requirements" means those legal requirements described in Section 4.1 hereof.
"Loan" means the loan by the Issuer to the Mortgagor of the proceeds received from the
sale of Bonds.
"Loan Payments" means the amounts required to be paid by the Mortgagor in repayment
of the Loan pursuant to Section 4.1 of the Agreement.
"Mortgage" means this Mortgage and Security Agreement, as amended or supplemented
from time to time.
"Net Proceeds," when used with respect to any insurance proceeds or condemnation award,
means the gross proceeds thereof less the payment of all expenses, including attorneys' fees
incurred in connection with the collection of such gross proceeds.
"Notes" means the Series 1999 Notes and any Additional Notes.
"Notice Address" means as to the Mortgagor: BEF, Inc., 1601 Jack Street, Suite 200, Fort
Myers, Florida 33901 Attention: Gerard A. McHale, Jr., as to the Issuer: City of Clearwater,
Florida, c/o Margaret L. Simmons, CPA, Financial Services Administrator, 100 South Myrtle
Avenue, Clearwater, Florida 33756-55209, copy to Pamela Akins, City Attorney, 112 South
Osceola Avenue, Clearwater, Florida; and as to the Trustee, SunTrust Bank, Central Florida,
National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801, Attention:
Corporate Trust Department.
"Outstanding Bonds" means the Outstanding Bonds as defined in the Indenture.
"Permitted Encumbrances" means the exceptions, restrictions, easements and
encumbrances set forth in Exhibit B hereto.
"Prime Rate" means that interest rate announced from time to time by the Trustee in its
lending capacity as a bank as its "prime rate" or "base rate."
"Project Fund" means the Project Fund created by the Indenture.
"Rebate Fund" means the Rebate Fund created by the Indenture.
"Required Property Insurance Coverage" means (a) insurance insuring the Project Facilities
against loss or damage by fire, lightning, windstorm, vandalism and malicious mischief and all
other perils covered by standard "extended coverage" or "all risks" policies in the State, business
8
interruption and against such other perils as the Mortgagee may require, in an amount equal to
100% of the replacement cost of the Project Facilities, presently estimated to be
$ without deduction for depreciation, and containing a "replacement cost
endorsement" (b) any sinkhole insurance required by Section 3.3 hereof and (c) any flood
insurance required by Section 3.3 hereof, all subject only to co-insurance and or deductibles as
are customary in the industry.
"Required Public Liability Insurance Coverage" means comprehensive general accident and
public liability insurance in the minimum amounts of [$1,000,000] for death or bodily injury
resulting from each occurrence in connection with the Project site or Project Facilities and other
property and operations of the Mortgagor and [$3,000,000] for property damage for any such
occurrence, with a loss deductible not to exceed [$1,000.]
"Revenues" means all present and future revenues received by or on behalf of the
Mortgagor from whatever source derived, including without limitation, all
(a) cash, accounts, deposits, Entrance Fees, chattel paper, instruments, documents,
money and general intangibles, including without limitation, contract rights and
rights to payment (i) for goods and properties sold or leased or for services
rendered, (ii) under agreements respecting governmental and private insurance
arrangements, and (iii) from any insurance, condemnation award or agreement in
lieu of a condemnation award resulting from eminent domain proceedings,
(b) income from, and revenues realized upon the liquidation or sale of, securities held
by or on behalf of the Mortgagor,
(c) proceeds of those items constituting Revenues to which reference is made in clauses
(a) and (b) above, and
(d) gifts, grants, bequests, contributions and donations, including without limitation,
the unrestricted income and profits therefrom,
provided that Revenues do not include
(i) gifts, grants, bequests, contributions and donations to the extent restricted
specifically to a particular purpose inconsistent with their use for the
making of payments into any of the Special Funds,
(ii) the proceeds of any borrowing to the extent that those proceeds are required
to be excluded from Revenues by the terms of the borrowing,
(iii) the proceeds of non-recourse Debt secured by and payable solely from
property tinanced by such non-recourse Debt and all revenues derived from
9
or attributable to property financed with the proceeds of such non-recourse
Debt,
(iv) revenues derived from Excluded Property, or
"Series 1999A Bonds" means the $
Bonds, Series 1999A (BEF, Inc. Project).
City of Clearwater, Florida Revenue
"Series 1999B Bonds" means the $ City of Clearwater, Florida Revenue
Bonds, Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiesSM (EXTRASSM).
"Series 1999C Bonds" means the $
Revenue Bonds, Series 1999C (BEF, Inc. Project).
City of Clearwater, Florida Taxable
"Series 1999 Bonds" means, collectively, the Series 1999A Bonds, the Series 1999B Bonds
and the Series 1999C Bonds.
"Series 1999 Note" means the non-negotiable promissory note of the Mortgagor in the
aggregate principal amount of $ , of even date with the Series 1999A Bonds, the
Series 1999B Bonds and the Series 1999C Bonds, a copy of which note is attached hereto as
Exhibit "C," executed and delivered by the Mortgagor to the Issuer and assigned by the Issuer to
the Trustee in connection with the issuance of the Series Bonds.
"Special Funds" means the Special Funds created pursuant to Section 5.01 of the
Indenture, other than the Rebate Fund.
"State" means the State of Florida.
"Unassigned Rights" means the rights of the Issuer under the Agreement to (a) receive
Additional Payments as contemplated in Section 4.2 of the Agreement; (b) to be held harmless
and indemnified under Section 5.12 of the Agreement; (c) to exercise with the consent, but not
to the exclusion, of the Trustee any remedies which are authorized to be exercised by the Issuer
under the Agreement in connection with an Event of Default; (d) to be reimbursed, to the extent
permitted by law, for attorney's fees and expenses under Section 7.4 of the Agreement; and (e)
to execute amendments to the Agreement.
Section 1.3. Interpretation. Any reference to a section or provision of the Constitution
of the State, or to a section, provision or chapter of the Florida Statutes or Laws of Florida,
includes that section, provision or chapter as amended, modified, revised, supplemented or
superseded from time to time; provided, that no amendment, modification, revision, supplement
or superseding section, provision or chapter shall be applicable solely by reason of this provision,
if it constitutes in any way an impairment of the rights or obligations of the Issuer, the Holders,
the Mortgagee, the Trustee or the Mortgagor under the Indenture, the Bond Resolution, the
Bonds, the Agreement, the Notes, this Mortgage or any other instrument or document entered into
10
in connection with any of the foregoing, including without limitation, any alteration of the
obligation to pay Debt Service Charges, Loan Payments and Additional Payments in the amount
and manner, at the times, and from the sources provided in the Bond Resolution and the
Indenture, except as permitted in the Indenture and the Agreement.
The terms "hereof," "hereby," "herein," "hereto," "hereunder" and similar terms refer to
this Mortgage; and the term "hereafter" means after, and the term "heretofore" means before, the
date of delivery of this Mortgage. Words of the masculine gender include the feminine and neuter,
and when the sense so indicates words of the neuter gender may refer to any gender.
(End of Article I)
11
ARTICLE II
PRESERVATION OF SECURITY
Section 2.1. Representations and Warranties. Mortgagor represents and warrants that
(i) it is lawfully seized with good and marketable fee simple title to the Project Site and has, or
will acquire upon the acquisition or construction thereof, good title to the other Mortgaged
Property subject only to Permitted Encumbrances, (ii) it has full right and authority to sell and
convey the Mortgaged Property and (iii) it will warrant and defend to the Mortgagee such title to
the Mortgaged Property and the lien and interest of the Mortgagee therein and thereon against all
claims and demands whatsoever and will, except as otherwise herein expressly provided, maintain
the priority of the lien of, and the security interest granted by, this Mortgage upon the Mortgaged
Property until it shall be entitled to defeasance as provided herein.
Section 2.2. Recordation. The Mortgagor, at its expense, shall cause this Mortgage, any
instruments supplemental hereto, financing statements, including all necessary amendments,
supplements and appropriate continuation statements to be timely recorded, registered and filed,
and to be kept recorded, registered and filed, in such manner and in such places as may be
required in order to establish, preserve and protect the lien of this Mortgage as a valid, first
mortgage lien on the Project Site and that portion of the Project Facilities which constitute real
property and interests therein included in the Mortgaged Property and a valid, perfected first
priority security interest in all personal property, fixtures and interests therein included in the
Mortgaged Property (including in each such case, without limitation, any such properties acquired
after the execution hereof). If requested by the Mortgagee but in each case not more than once
in each calendar year, the Mortgagor, at its expense, will furnish to the Mortgagee an opinion of
Independent Counsel, specifying the action required to be taken by the Mortgagor to comply with
this Section 2.2 since the date of this Mortgage or the date of the most recent such opinion or
stating that no such action is necessary.
Section 2.3. After-Acquired Property. All property of every kind acquired by the
Mortgagor after the date hereof, which by the terms hereof is to be subject to the lien of this
Mortgage, shall immediately upon the acquisition or construction thereof by the Mortgagor, and
without further mortgage, conveyance or assignment, become subject to the lien of this Mortgage
as fully as though now owned by the Mortgagor and specifically described herein. Nevertheless,
the Mortgagor shall take such actions and execute and deliver such additional instruments and
opinions of counsel as the Mortgagee shall reasonably require to further evidence or confirm the
subjection to the lien of this Mortgage of any such property.
Section 2.4. Liens and Encumbrances. Except as otherwise expressly permitted by this
Mortgage or the Agreement, the Mortgagor shall not, without the prior written consent of the
Trustee, directly or indirectly create or permit to remain, and will promptly discharge, any
mortgage, lien, encumbrance or charge on, pledge of, security interest in or conditional sale or
other title retention agreement with respect to the Mortgaged Property or any part thereof or the
interest of the Mortgagor or the Mortgagee therein or any revenues, income or profit or other
12
sums arising from the Mortgaged Property or any part thereof (including, without limitation, any
lien, encumbrance or charge arising by operation of law) other than:
(a) the lien of this Mortgage;
(b) liens for taxes, assessments and other governmental charges which are not at the
time required to be paid pursuant to Section 3.1 hereof;
(c) liens of mechanics, materialmen, suppliers or vendors or rights thereto to the extent
permitted by Section 3.2 hereof; and
(d) Permitted Encumbrances.
Section 2.5. Security Agreement and Financing Statement. This Mortgage constitutes
a security agreement as to all or any part of the Mortgaged Property which is of a nature that a
security interest therein can be perfected under the Uniform Commercial Code of the State. This
Mortgage also constitutes a financing statement with respect to any and all property included in
the Mortgaged Property which is or may become fixtures.
Section 2.6. No Claims Against Mortgagee. Nothing contained in this Mortgage shall
constitute a request by the Mortgagee, expressed or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the Mortgaged Property
or any part thereof, or be construed to give the Mortgagor any right, power or authority to
contract for or permit the performance of any labor or services or the furnishing of any materials
or other property in such fashion as would provide the basis for any claim either against the
Mortgagee or that any lien, including, without limitation, liens described in Chapter 713, Florida
Statutes, as amended, based on the performance of such labor or services or the furnishing of any
such materials or other property is prior to the lien of this Mortgage.
Section 2.7. Security for Future Advances. The Agreement and the Indenture permit
the Mortgagee to advance additional sums under certain conditions set forth in the Agreement and
the Indenture. This Mortgage is given to secure not only the existing indebtedness of
$ of the Mortgagor to the Mortgagee evidenced by the Series 1999 Notes and
Agreement secured hereby, but also such future advances up to an additional $
as are made within twenty (20) years from date hereof, plus interest thereon, and any
disbursements made by the Mortgagee for the payment of taxes, insurance or other liens on the
property encumbered by this Mortgage, with interest on such disbursements, which advances shall
be secured hereby to the same extent as if such future advances were made this date. The total
amount of indebtedness secured hereby may increase or decrease from time to time. The
provisions of this paragraph shall not be construed to imply any obligation on Mortgagee to make
any future advances, it being the intention of the parties that any future advances shall be solely
at the discretion and option of the Mortgagee. Any reference to "Series 1999 Notes" or
"Agreement" in this Mortgage shall be construed to reference any future advances made pursuant
to this paragraph.
13
Section 2.8. Hazardous Waste.
(a) Mortgagor warrants and represents to Mortgagee after thorough investigation that:
(i) the Mortgaged Property described herein is now and at all times hereafter will
continue to be in full compliance with all federal, state and local environmental
laws and regulations, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
Public Law No. 96-510, 94 Stat. 2767,42 USC 9601 et seq., and the Superfund
Amendments and Reauthorization Act of 1986 (SARA), Public Law No. 99-499,
100 Stat. 1613, and (ii) (aa) as of the date hereof there are no hazardous materials,
substances, wastes or other environmentally regulated substances (including
without limitation, any materials containing asbestos) located on, in or under the
Mortgaged Property or used in connection therewith, or (bb) Mortgagor has fully
disclosed to Mortgagee in writing the existence, extent and nature of any such
hazardous materials, substances, wastes or other environmentally regulated
substances, which Mortgagor is legally authorized and empowered to maintain on,
in or under the Mortgaged Property or use in connection therewith, and Mortgagor
has obtained and will maintain all licenses, permits and approvals required with
respect thereto, and is in full compliance with all of the terms, conditions and
requirements of such licenses, permits and approvals. Mortgagor further warrants
and represents that it will promptly notify Mortgagee of any changes in the nature
or extent of any hazardous materials, substances or wastes maintained on, in or
under the Mortgaged Property or used in connection therewith, and will transmit
to Mortgagee copies of any citation, orders, notices or other material governmental
or other communication received with respect to any other hazardous materials,
substances, wastes or other environmentally regulated substances affecting the
Mortgaged Property.
(b) Mortgagor hereby agrees to indemnify Mortgagee and its successors and assigns
and hold Mortgagee harmless from and against any and all liabilities, obligations,
charges, losses, damages, injuries, penalties, claims actions, suits, costs of any
settlement or judgment, costs, expenses and disbursements, including without
limitation title insurance costs and premiums, engineers I and professional fees, soil
tests and chemical analysis, court costs, including reasonable legal fees and
expenses through all trial, appellate and administrative levels of whatsoever kind
and nature imposed on, incurred by or asserted against Mortgagee by any person
or entity or governmental agency for, with respect to, or as a direct or indirect
result of, the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or release from the premises of any Hazardous
Substance (including, without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' fees, costs
of any settlement or judgment or claims asserted or arising under CERCLA, any
so called federal, state or local "Superfund" "Superlien" laws, statutes, law,
ordinance, code, rule, regulation, order or decree regulating with respect to or
14
imposing liability, including strict liability substances or standards of conduct
concerning any Hazardous Substance), regardless of whether within the control of
Mortgagee. The foregoing indemnification shall survive repayment of the Note
and satisfaction or assignment of this Mortgage.
(c) For purposes of this Mortgage, "Hazardous Substances" shall mean and include
those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (EPA)
and the list of toxic pollutants designated by Congress or the EP A or defined by
any other Federal, State or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material as now
or at any time hereunder in effect and shall include asbestos-containing materials.
(d) If Mortgagor receives any notice of (i) the happening of any material event
involving the spill, release, leak, seepage, discharge or cleanup of any Hazardous
Substance on the Mortgaged Property or in connection with Mortgagor's operations
thereon or (ii) any complaint, order, citation or material notice with regard to air
emissions, water discharges, or any other environmental, health or safety matter
affecting Mortgagor (an "Environmental Complaint") from any person or entity
(including without limitation the EPA) then Mortgagor shall immediately notify
Mortgagee orally and in writing of said notice.
(e) Mortgagee shall have the right, but not the obligation, and without limitation of
Mortgagee's rights under this Mortgage, to enter onto the Mortgaged Property or
to take such other actions as it deem necessary or advisable to cleanup, remove,
resolve or minimize the impact of, or otherwise deal with, any such Hazardous
Substance or Environmental Complaint following receipt of any notice from any
person or entity (including without limitation the EPA) asserting the existence of
any Hazardous Substance or an Environmental Complaint pertaining to the
Mortgaged Property or any part thereof which, if true, could result in an order,
suit or other action against Mortgagor and/or which, in the sole opinion of
Mortgagee, could jeopardize its 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.
(f) Mortgagee shall have the right, in its sole discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental
Complaint is then outstanding) perform (at Mortgagor's expense) an environmental
audit and, if deemed necessary by Mortgagee, an environmental risk assessment,
each of which must be satisfactory to Mortgagee, of the Mortgaged Property,
hazardous waste management practices and/or hazardous waste disposal sites used
by Mortgagor. Said audit and/or risk assessment must be by an environmental
15
consultant satisfactory to Mortgagee. Should Mortgagor fail to perform said
environmental audit or risk assessment within 30 days of the Mortgagee's written
request, Mortgagee shall have the right but not the obligation to retain an
environmental consultant to perform said environmental audit or risk assessment.
All costs and expenses incurred by Mortgagee in the exercise of such rights shall
be secured by this Mortgage and shall be payable by Mortgagor upon demand or
charged to the Mortgagor's loan balance at the discretion of Mortgagee.
(g) Any breach of any warranty, representation or agreement contained in this Section
2.8 shall be an Event of Default hereunder and shall entitle Mortgagee to exercise
any and all remedies provided in this Mortgage, or otherwise permitted by law.
Section 2.9. Inspection. The Mortgagee shall have the right, at all reasonable times, to
enter upon and inspect the Mortgaged Property and to review the books and records of the
Mortgagor relating to the Mortgaged Property.
(End of Article II)
16
ARTICLE III
TAXES, MECHANICS' LIENS AND INSURANCE
Section 3.1. Payment of Taxes and Other Governmental Charges. The Mortgagor shall
pay, promptly when due and before penalty or interest accrue thereon, all taxes, assessments,
whether general or special, and other governmental charges of any kind whatsoever, foreseen or
unforeseen, ordinary or extraordinary, that now or may at any time hereafter be assessed or levied
against or with respect to the Mortgaged Property or any part thereof (including, without
limitation, any taxes levied upon or with respect to the revenues, income or profits of the
Mortgagor from the Mortgaged Property) which, if not paid, may become or be made a lien on
the Mortgaged Property, or any part thereof, or a charge on such revenues, income or profits.
Notwithstanding the preceding paragraph, the Mortgagor may, at its expense and after
prior notice to the Mortgagee, by appropriate proceedings diligently prosecuted, contest in good
faith the validity or amount of any such taxes, assessments or other charges and during the period
of contest, need not pay the items so contested; provided, Mortgagor shall deliver to Mortgagee
an opinion of Independent Counsel to the effect that by nonpayment of any such items, the lien
or security interest created by this Mortgage as to any part of the Mortgaged Property will not be
materially affected and the Mortgaged Property or any part thereof will not be subject to imminent
loss or forfeiture. During the period when the taxes, assessments or other charges so contested
remain unpaid, the Mortgagor shall set aside on its books adequate reserves with respect thereto.
Section 3.2. Mechanics' and Other Liens. The Mortgagor shall not permit any
mechanics' or other liens to be filed or to exist against the Mortgaged Property by reason of work,
labor, services or materials supplied or claimed to have been supplied to, for or in connection with
the Mortgaged Property or to the Mortgagor or anyone holding the Mortgaged Property or any
part thereof, through or under the Mortgagor. If any such lien shall at any time be filed, the
Mortgagor shall, within thirty days after notice of the filing thereof but subject to the right to
contest as set forth herein, cause the same to be discharged of record by payment, deposit, bond,
order of a court of competent jurisdiction or otherwise. Notwithstanding the foregoing, the
Mortgagor shall have the right, at its own expense and after prior written notice to the Mortgagee,
by appropriate proceedings duly instituted and diligently prosecuted, to contest in good faith the
validity or the amount of any such lien; provided, Mortgagor shall deliver to Mortgagee an
opinion of Independent Counsel to the effect that by nonpayment of any such items, the lien or
security interests created by this Mortgage will not be materially affected and the Mortgaged
Property or any part thereof will not be subject to imminent loss or forfeiture and, if requested
by the Mortgagee, shall post adequate bond or other acceptable collateral to secure payment of all
such amounts, including penalties and interest.
Section 3.3. Insurance. The Mortgagor shall keep the Project Facilities continuously
insured with Required Property Insurance Coverage. For purposes of establishing the amount of
the Required Property Insurance Coverage, "replacement cost" of the Project Facilities shall be
17
determined not less frequently than at three year intervals by an Engineer or a competent
appraiser, appraisal company or one of the insurers, in each instance, acceptable to the Trustee.
During any period during which any building, structure or improvement is under
construction, in lieu of the insurance provided for above, the Mortgagor shall maintain or cause
to be maintained, with respect to such building, structure or improvement, builders I risk insurance
(non-reporting form) with coverages and in an amount, determined to be appropriate by an
insurance consultant acceptable to the Trustee.
If the Project Site is located in an area which is prone to the development of sinkholes, and
if sinkhole insurance on the Project Site is available at reasonable cost, the Trustee shall require
the Mortgagor to maintain or cause to be maintained sinkhole insurance on the Project Site in an
amount determined to be appropriate by an insurance consultant acceptable to the Trustee.
If the Project Site is located in an area that has been identified by the United States
Department of Housing and Urban Development as an area having special tlood hazards and if
the sale of tlood insurance has been made available under the National Flood Insurance Act of
1968, the Trustee shall require the Mortgagor to maintain or cause to be maintained tlood
insurance in an amount at least equal to the lesser of (i) the replacement cost of the Project
Facilities or (ii) the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, or (iii) some lesser amount
determined by an insurance consultant acceptable to the Trustee.
The Mortgagor shall keep and maintain Required Public Liability Insurance Coverage with
reference to the Project Site and the Project Facilities provided that the Required Public Liability
Insurance Coverage shall be increased to such larger amounts as shall be determined by an
insurance consultant acceptable to the Trustee to be appropriate in light of intlationary increases,
the operations conducted by the Mortgagor and the insurance coverage carried by other entities
conducting similar operations.
All insurance shall be obtained and maintained either by means of policies with generally
recognized, responsible insurance companies or in conjunction with other companies through an
insurance trust or other arrangements satisfactory to an insurance consultant acceptable to the
Trustee, and all such companies are to be qualified to do business in the State. The insurance to
be provided may be by blanket policies. Each policy of insurance shall be written so as not to be
subject to cancellation or substantial modification upon less than thirty (30) days I advance written
notice to the Trustee or such shorter period of notice as shall be satisfactory to the Trustee. The
Mortgagor shall deposit with the Trustee certificates or other evidence, satisfactory to the Trustee,
that (i) the insurance required hereby has been obtained and is in full force and effect and (ii) all
premiums thereon have been paid in full. Prior to the expiration of any such insurance, the
Mortgagor shall furnish the Trustee with evidence satisfactory to the Trustee that such insurance
has been renewed or replaced and that all premiums thereon have been paid in full and all
insurance policies required hereby are in full force and effect. The Mortgagor shall file with the
18
Trustee a copy of any claim in excess of [$100,000] it may make under the Required Property
Insurance Coverage.
All policies providing the Required Property Insurance Coverage shall contain standard
mortgagee clauses requiring all proceeds resulting from any claim for loss or damage in excess
of [$100,000] to be paid to the Trustee. Any Net Proceeds of insurance providing such coverage
shall be paid and applied as provided in Section 5.2 hereof. Any proceeds of policies providing
Required Public Liability Insurance Coverage shall be applied toward the extinguishment or
satisfaction of the liability with respect to which such insurance proceeds have been paid.
Section 3.4. Workers' Compensation Coverage. The Mortgagor shall maintain or cause
to be maintained in connection with the Mortgaged Property workers' compensation coverage
required by the applicable laws of the State.
Section 3.5. Title Insurance. The Mortgagor shall provide the Mortgagee with a standard
Mortgagee's Title Insurance Policy in the amount of $ containing only such exceptions
as constitute Permitted Encumbrances.
(End of Article III)
19
ARTICLE IV
MAINTENANCE AND USE OF MORTGAGED PROPERTY
Section 4.1. Compliance with Legal and Insurance Requirements. The Mortgagor, at
its expense, shall promptly comply with all Legal Requirements and Insurance Requirements, and
shall procure, maintain and comply with all permits, licenses and other authorizations required
for any use of the Project Site or Project Facilities or any part thereof then being made or
anticipated to be made, and for the proper construction, installation, operation and maintenance
of the Mortgaged Property or any part thereof, and will comply with any instruments of record
at the time in force burdening the Mortgaged Property or any part thereof. As used in this
Section, "Legal Requirements" means all laws. statutes, codes, acts, ordinances, resolutions,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations,
directions and requirements of all governmental entities, departments, commissions, boards,
courts, authorities, agencies, officials and officers, foreseen or unforeseen, ordinary or
extraordinary, which now or at any time hereafter may be applicable to the Project Site or Project
Facilities or any part thereof, any use, anticipated use or condition of the Project Site or Project
Facilities or any part thereof, including, without limitation, Chapter 713, Florida Statutes.
"Insurance Requirements" means all provisions of any insurance policy covering or applicable to
the Project Site or Project Facilities or any part thereof, all requirements of the issuer of any such
policy, and all orders, rules, regulations and other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) applicable to or affecting the
Mortgaged Property or any part thereof. The Mortgagor may, at its expense and after prior notice
to the Mortgagee, by any appropriate proceedings diligently prosecuted, contest in good faith any
Legal Requirement and postpone compliance therewith pending the resolution or settlement of
such contest provided that such postponement does not, in the opinion of Independent Counsel,
materially affect the lien or security interests created by this Mortgage as to any part of the
Mortgaged Property or subject the Mortgaged Property, or any part thereof, to imminent loss or
forfeiture.
Section 4.2. Maintenance and Use of Mortgaged Property. The Mortgagor, at its
expense, will keep or cause to be kept the Project Site and Project Facilities in good order and
condition (ordinary wear and tear excepted) and will make all necessary or appropriate repairs,
replacements and renewals thereof, interior, exterior, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen. The Mortgagor will not do, or permit to be done, any
act or thing which might materially impair the value or usefulness of the Project Site or Project
Facilities or any part thereof, will not commit or permit any material waste of the Project Site or
Project Facilities or any part thereof, and will not permit any unlawful occupation, business or
trade to be conducted on the Project Site or Project Facilities or any part thereof. The Mortgagor
shall also, at its expense, promptly comply with all rights of way or use, privileges, franchises,
servitudes, licenses, easements, tenements, hereditaments and appurtenances forming a part of the
Project Site and all instruments creating or evidencing the same, in each case, to the extent
compliance therewith is required of the Mortgagor under the terms thereof.
20
Section 4.3. Additions. Modifications and Improvements. The Mortgagor may, in its
discretion and at its expense, make from time to time any additions, modifications or
improvements to the Project Site or Project Facilities which it may deem desirable for its business
purposes provided that the Trustee shall first have received a report from an Engineer stating that
such additions, modifications or improvements will not, in the opinion of such Engineer,
adversely affect the structural integrity or strength of any improvements constituting a part of the
Project Site or Project Facilities or materially interfere with the use and operation, value or
marketability thereof. All additions, modifications and improvements so made by the Mortgagor
shall become or be deemed to constitute a part of the Mortgaged Property, except as may be
provided herein.
Section 4.4. Substitutions and Removals. In any instance where the Mortgagor, in its
reasonable discretion, determines that any fixture or item of personal property constituting a part
of the Project Facilities shall have become inadequate, obsolete, worn-out, unsuitable, undesirable
or unnecessary or should be replaced, the Mortgagor may remove such items provided that such
removal (taking into account any substitutions) shall not impair the operating unity of the Project
Site or Project Facilities and providing that the Mortgagor shall:
(a) substitute and install as part of the Project Facilities property of equal or greater
utility and value (but not necessarily fulfilling the same function) as the removed
property, which such substituted property shall be free from all liens and
encumbrances (other than Permitted Encumbrances) and shall become part of the
Project Site or Project Facilities; or
(b) in the case of removal of any Project Facilities from the Project Site without
substitution, promptly pay to the Trustee for application as provided in Section 4.6
of the Agreement an amount equal to (i) if the removed property is sold or
scrapped, the proceeds of such sale or the scrap value thereof, (ii) if the removed
property is used as a trade-in for property not to be used at the Project Site as part
of the Project Facilities, the trade-in credit received by the Mortgagor or (iii) in the
case of the retention of such removed property by the Mortgagor for other
purposes, the fair market value of such property, as determined by an Engineer or
appraiser acceptable to the Trustee.
If, prior to any such removal, the Mortgagor shall have acquired with its own funds
personal property which is located on the Project Site and which has become or shall, by an
amendment hereto, be made a part of the Project Facilities, the Mortgagor may take credit to the
extent of the amount so spent by them against the requirement that they either substitute other
property or make payment under this Section on account of such removal, provided that such
previously acquired and installed property meets the requirements for substituted property under
Section 4.4(a) hereof.
The Mortgagor shall promptly report to the Mortgagee each such removal, substitution,
sale or other disposition and shall pay to the Trustee such amounts as are required by the
21
provisions of the preceding subsection (b) of this Section promptly after the sale, trade-in or other
disposition requiring such payment; provided, however, that no such payment need be made until
the amount to be paid to the Trustee on account of all such sales, trade-ins or other dispositions
not previously paid aggregates to at least [$100,000] in the calendar year.
At the request of the Trustee, the Mortgagor shall deliver to the Mortgagee such
instruments, including financing statements and amendments thereto, as may be necessary or
advisable to perfect the Mortgagee's lien upon and security interest in any personal property
installed in substitution for any property removed pursuant to this Section; the Trustee may require
the Mortgagor to provide, at the expense of the Mortgagor, an opinion of counsel as to the
perfection of the Mortgagee's lien and security interest. Upon the request of the Mortgagor, the
Trustee shall execute and deliver to the Mortgagor appropriate instruments releasing any property
removed pursuant to this Section from the liens and security interests hereunder.
Section 4.5. Indemnification. The Mortgagor shall protect, indemnify and save harmless
the Mortgagee from and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses
except as may be limited by law or judicial order or decision entered in any action brought to
recover moneys under this Section) imposed upon, incurred by or asserted against the Mortgagee
by reason of (a) ownership of any interest in the Mortgaged Property or any part thereof, (b) any
accident, injury to or death of persons or loss of or damage to property occurring on or about the
Project Site or any part thereof or the adjoining sidewalks, curbs, vaults and vault space, if any,
streets or ways, (c) any use, disuse or condition of the Project Site or Project Facilities or any part
thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (d) any
failure on the part of the Mortgagor to perform or comply with any of the terms hereof, (e) any
necessity to defend any of the rights, title or interests conveyed by this Mortgage, (f) the
performance of any lalx>r or services or the furnishing of any materials or other property in respect
of the Project Site or Project Facilities or any part thereof or (g) any lease or contract relating to
the Project Site, the Project Facilities, or any part thereof. In case any action, suit or proceeding
is brought against the Mortgagee for any such reason, the Mortgagor, upon the request of the
Mortgagee, will at the Mortgagor's expense, cause such action, suit or proceeding to be resisted
and defended by Independent Counsel. Any amounts payable to the Mortgagee under this Section
which are not paid within ten (10) days after written demand therefor shall bear interest at the
Interest Rate for Advances from the date of such demand, and such amounts, together with such
interest, shall be considered a future advance hereunder and indebtedness secured by this
Mortgage. The obligations of the Mortgagor under this Section shall survive any defeasance of
the Bonds, any discharge of the Indenture, any termination of the Agreement or any satisfaction
of this Mortgage.
(End of Article IV)
22
ARTICLE V
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 5.1. Damage to or Destruction of Proiect Facilities. In case of any damage to
or destruction of the Project Site or Project Facilities or any part thereof, the Mortgagor will
promptly give or cause to be given written notice thereof to the Mortgagee generally describing
the nature and extent of such damage or destruction. Unless in lieu thereof all Outstanding Bonds
are to be redeemed pursuant to the Agreement, the Mortgagor shall, whether or not the Net
Proceeds of insurance, if any, received on account of such damage or destruction shall be
sufficient for such purpose, promptly commence and complete, or cause to be commenced and
completed, the repair or restoration of the Project Site or Project Facilities as nearly as practicable
to the value, condition and character thereof existing immediately prior to such damage or
destruction, with such changes or alterations, however, as the Mortgagor may deem necessary for
the proper conduct of its business activities conducted on the Project Site.
Section 5.2. Use oflnsurance Proceeds. In connection with the repair or restoration of
the Project Site or Project Facilities pursuant to Section 5.1 hereof, Net Proceeds of Required
Property Insurance Coverage not in excess of [$100,000] shall be paid to the Mortgagor for
application of as much as may be necessary for such repair and restoration. Any such Net
Proceeds in excess of [$100,000] shall be paid to and held by the Trustee in a separate insurance
loss account within the Project Fund, for application of as much as may be necessary of the Net
Proceeds to the payment of the costs of repair or restoration, either on completion thereof or as
the work progresses, as directed by the Mortgagor. The Mortgagee may, prior to making
payment from such loss account, require the Mortgagor to provide evidence that, or deposit with
the Trustee moneys to be placed in such account so that, there will be adequate moneys available
for such repair and restoration, including a contingency reserve satisfactory to the Mortgagee.
The Trustee shall not be obligated to make any payment from such account if there exists any
Event of Default hereunder. Any balance of the Net Proceeds (together with any investment
income therefrom) held by the Trustee remaining after payment of all costs of such repair or
restoration shall be paid to the Trustee for deposit into the Bond Fund for application as provided
in the Agreement.
As a condition to approval of any repair or restoration of the Project Facilities and the
release of any Net Proceeds in excess of [$100,000] held by the Trustee for such purpose, the
Mortgagee may, at the Mortgagor's expense, obtain the services of a construction consultant or
consultants to advise the Mortgagee as to the adequacy of the plans and specifications, as-built
value and utility of the proposed work, adequacy of funds available for such work and such other
matters as the Trustee may require. The right of the Mortgagor to repair or restore the Project
Facilities shall be subject to such terms and conditions as the Mortgagee or its construction
consultants may reasonably impose. Without limiting the generality of the foregoing, the
Mortgagee and its construction consultants shall have the right to approve all plans and
specifications, contractors, subcontractors, architects, engineers and suppliers and all construction
contracts (including retaining provisions) and may require a fixed price contract and/or payment
23
and performance bonds as deemed necessary or desirable by the Mortgagee or its construction
consultants. The Mortgagee and its construction consultants shall be entitled to such
documentation, opinions, appraisals and other protections and assurances as may be customarily
required by construction lenders or as they may otherwise reasonably require.
Failure by the Mortgagor to fully satisfy all conditions and requirements for the repair or
restoration of the Project Facilities within six months after occurrence of the casualty giving rise
to the need therefor shall constitute an Event of Default hereunder.
If, in lieu of repair or restoration, all Outstanding Bonds are to be redeemed pursuant to
the Agreement, an amount equal to any Net Proceeds received by the Trustee prior to such
prepayment shall (together with any investment income therefrom) be credited against the amount
payable by the Mortgagor pursuant to the Agreement to effect such redemption.
Section 5.3. Eminent Domain. If title to or the temporary use of the Project Site or any
part thereof, shall be taken under the exercise of the power of eminent domain by any
governmental body or by any person, firm or corporation acting under governmental authority,
the Mortgagor will promptly give written notice thereof to the Mortgagee describing the nature
and extent of such taking. Any Net Proceeds received from any award made in such eminent
domain proceedings (or from any sale made by the Mortgagor and Trustee jointly under threat
of condemnation) shall, if received prior to the release and discharge of this Mortgage, be paid
to and held by the Trustee in a separate condemnation award account for application to one or
more of the following purposes:
(a) The modification of the Project Site and Project Facilities so that the Mortgagor
may be able to conduct its business activities at the Project Site as nearly as
practicable to the same manner as existed immediately prior to the exercise of the
power of eminent domain with such changes or alterations, however, as the
Mortgagor may deem necessary for proper operation of said activities.
(b) The acquisition of additional land which shall be made a part of the Project Site or
construction of other improvements suitable for the Mortgagor's operations on the
Project Site (which improvements shall be made a part of the Project Facilities);
provided, that such land and improvements shall be subject to no liens or
encumbrances (other than the lien hereof and Permitted Encumbrances).
(c) Payment into the Bond Fund to be used for the redemption of Bonds, in the manner
and to the extent permitted by the Indenture.
Within ninety days from the date of entry of a tinal order in any eminent domain proceeding (or
any sale under threat of condemnation), the Mortgagor shall advise the Mortgagee in writing as
to which purpose or combination of purposes above specified the Net Proceeds of the
condemnation award or sale (together with any investment income therefrom) shall be applied.
Any balance of the Net Proceeds (together with any investment income therefrom) not required
24
for the purpose or purposes so directed shall be applied by the Trustee as provided in Section 4.6
of the Agreement.
Application of Net Proceeds of condemnation for the acquisition and/or restoration of
Project Facilities shall be subject to the same terms and conditions as repair or restoration of
Project Facilities following a casualty, as set forth in Section 5.2 hereof.
Section 5.4. Investment and Disbursement of Net Proceeds. All moneys received by the
Trustee or its designee constituting Net Proceeds shall, pending application, be invested at the
direction of the Mortgagor (for the account of and at the risk of the Mortgagor) and shall (together
with any investment income therefrom) be disbursed, to the extent to be used for repair,
rebuilding, restoration, acquisition or construction, as provided herein and in the Agreement and
the Indenture for the investment and disbursement of moneys in the Project Fund and, to the
extent held in the Bond Fund for the redemption of Bonds, as provided in the Agreement and
Indenture for the investment and disbursement of moneys in the Bond Fund. Any balance of Net
Proceeds (together with any investment income therefrom) held by the Trustee or its designee
upon the release and satisfaction of this Mortgage pursuant to Section 7.3 hereof, or any Net
Proceeds thereafter received by the Trustee shall, to the extent not retained by the Trustee to pay
amounts then due or to become due under the Agreement or the Indenture (including amounts
needed to pay fees and expenses of the Trustee, Paying Agent, Registrar and Authenticating
Agent, amounts due the Issuer with respect to the Issuer's Unassigned Rights and amounts
required to be deposited in the Rebate Fund) be paid to the Mortgagor.
(End of Article V)
25
ARTICLE VI
REMEDIES
Section 6.1. Right to Perform Covenants. If the Mortgagor fails to make any payment
or perform any act required to be made or performed hereunder (including, without limitation,
the payments described in Article III hereot) or under the Agreement or the Notes, the Mortgagee
without demand upon the Mortgagor and without waiving or releasing any obligation or default,
may (but shall be under no obligation to) make such payment or perform such act for the account
and at the expense of the Mortgagor and may enter upon the Mortgaged Property or any part
thereof for such purpose and take all such action thereon as, in its opinion, may be necessary or
appropriate therefor. All advances for payments so made by the Mortgagee and all advances for
costs, fees and expenses (including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection therewith or in connection with the performance by the Mortgagee of any
such act, together with interest thereon at the Interest Rate for Advances from the date of payment
or incurrence, shall, to the extent permitted by law, be additional indebtedness secured by this
Mortgage, and shall be paid by the Mortgagor to the Mortgagee on demand. In any action
brought to collect such indebtedness, or to foreclose this Mortgage, the Mortgagee shall be entitled
to the recovery of the reasonable legal fees and expenses and costs incurred by Mortgagee in such
action, including fees and expenses on appeal or in insolvency proceedings.
Section 6.2. Events of Default. Anyone or more of the following events shall be an
Event of Default under this Mortgage:
(a) Failure by the Mortgagor to pay when due any installment of principal, interest or
premium under the Notes.
(b) An Event of Default as defined in Section 7.1 of the Agreement.
(c) Failure by the Mortgagor to pay to the Mortgagee (within 10 days of receipt of
notice of the Mortgagee of the sum owing) any amounts due under Section 6.1
hereof.
(d) Failure by the Mortgagor to observe or perform any term, covenant or agreement
on the Mortgagor's part to be observed or performed under this Mortgage, and
continuation of such failure for 30 days after written notice thereof shall have been
given to the Mortgagor by the Mortgagee, or for such longer period as the
Mortgagee may agree to in writing; provided that if the failure is other than the
payment of money and is of such nature that it cannot be corrected within the
applicable period, such failure shall not constitute an Event of Default so long as
the Mortgagor institutes curative action and diligently pursues such action to
completion unless, in the reasonable judgment of the Mortgagee, such failure
would materially impair the value or marketability or title to the Mortgaged
Property or Mortgagor's business or operations.
26
(e) The Mortgagor shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) have an order for relief entered in any case commenced by or against it
under the federal bankruptcy laws, as now or hereafter in effect;
(iii) commence a proceeding under any other federal or state bankruptcy,
insolvency, reorganization or similar law, or have such a proceeding
commenced against them and either have an order of insolvency or
reorganization entered against them or have the proceeding remain
undismissed and unstayed for ninety days;
(iv) make an assignment for the benefit of creditors; or
(v) have a receiver or trustee appointed for them or for the whole or any
substantial part of its property.
Notwithstanding the foregoing, if, by reason of Force Majeure, the Mortgagor is unable
to perform or observe any agreement, term or condition hereof, other than any obligation to make
payments required hereunder, the Mortgagor shall not be deemed in default during the continuance
of such inability. However, the Mortgagor shall promptly give notice to the Trustee of the
existence of an event of Force Majeure and shall use its best efforts to remove the effects thereof;
provided that the settlement of strikes or other labor disturbances shall be entirely within its
discretion.
The term Force Majeure shall mean, without limitation, the following:
(i) strikes or other labor disturbances; acts of public enemies; orders or
restraints of any kind of the government of the United States of America or
of the State or any of their departments, agencies, political subdivisions or
oftlcials, or any civil or military authority; insurrections; civil disturbances;
riots; epidemics, landslides; lightning; earthquakes; fires; hurricanes;
tornados; storms; droughts; t100ds and other natural disasters; explosions;
breakage, malfunction or accident to facilities, machinery, transmission
lines or pipes; partial or entire failure of utilities; shortages of labor,
materials, supplies or transportation; or
(ii) any cause, circumstance or event not reasonably within the control of the
Mortgagor.
Section 6.3. Remedies. If an Event of Default shall have occurred and be continuing,
the Mortgagee, at any time, at its election, may exercise any or all or any combination of the
remedies conferred upon or reserved to it under this Mortgage, the Agreement, the Notes or any
27
instrument collateral thereto, or now or hereafter existing at law, in equity or by statute. Without
limitation, the Mortgagee may (a) declare the entire unpaid principal balance of the indebtedness
secured hereby immediately due and payable, without notice or demand, the same being expressly
waived by the Mortgagor; (b) proceed at law or in equity to collect all indebtedness secured by
this Mortgage due hereunder, whether at maturity or by acceleration; (c) foreclose the lien of this
Mortgage as against all or any part of the Mortgaged Property; and (d) exercise any rights, powers
and remedies it may have as a secured party under the Uniform Commercial Code of the State,
or other similar laws in effect including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with the Mortgagee's rights with respect to real
property. Any moneys received by the Mortgagee pursuant to the exercise of remedies provided
in this Mortgage or by law shall be applied as provided in Section 7.06 of the Indenture.
Section 6.4. Waiver of Appraisement: Valuation. The Mortgagor does hereby waive to
the full extent it may lawfully do so, the benetit of all appraisement, valuation, stay and extension
laws now or hereafter in force and all rights of marshaling of assets in the event of any sale of the
Mortgaged Property, any part thereof or any interest therein and any court having jurisdiction to
foreclose the lien hereof may sell the Mortgaged Property in part or as an entirety.
Section 6.5. Appointment of Receiver. If an Event of Default shall have occurred and
be continuing, the Mortgagee shall, as a matter of right and to the extent permitted by applicable
law and without regard to the adequacy of the Mortgaged Property as security, be entitled to the
appointment of a receiver for all or any part of the Mortgaged Property, whether such receivership
is incidental to a proposed sale of the Mortgaged Property or otherwise, and the Mortgagor hereby
consents to the appointment of such a receiver and covenants not to oppose any such appointment.
Section 6.6. Possession. Management and Income: Assignment: Application of Moneys
Received. If an Event of Default shall have occurred and be continuing, the Mortgagee, to the
extent permitted under applicable law, ex parte and without notice may notify all lessees and
account debtors to make payment directly to the Mortgagee or its agents and may retain such
amounts for application to the indebtedness secured hereby and enter upon and take possession of
the Mortgaged Property or any part thereof by force, summary proceedings, ejectment or
otherwise, and may remove the Mortgagor and all other persons and any and all property
therefrom and may hold, operate and manage the same and receive all revenues, income or profits
accruing with respect thereto or any part thereof. The Mortgagee shall be under no liability for
or by reason of any such taking of possession, entry, removal, holding, operation or management.
All amounts received by the Trustee pursuant to this Article shall be applied as provided in the
Indenture.
Section 6.7. Remedies Cumulative. Each right, power and remedy of the Mortgagee,
provided for in this Mortgage, in the Agreement, in the Notes or now or hereafter existing at law
or in equity or by statute or otherwise, shall be cumulative and concurrent and shall be in addition
to every other right, power or remedy provided for in this Mortgage, in the Agreement, in the
Notes or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise
or beginning of the exercise or partial exercise by the Mortgagee of anyone or more of such
28
rights, powers or remedies shall not preclude the simultaneous or later exercise by the Mortgagee
of any or all such other rights, powers or remedies.
Section 6.8. Provisions Subiect to Applicable Law. All rights, powers and remedies
provided herein may be exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that they will not render
this Mortgage invalid, unenforceable or not entitled to be recorded, registered or filed under any
applicable law.
Section 6.9. No Waiver by Mortgagee. No failure by the Mortgagee to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy consequent upon
a breach thereof shall constitute a waiver of any such term or of any such breach. No waiver of
any breach shall affect or alter this Mortgage, which shall continue in full force and effect with
respect to any other then existing or subsequent breach.
Section 6.10. Discontinuance of Proceedings and Restoration of Status Quo. In case the
Mortgagee shall have proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Mortgagee, then and in every case
the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of the Mortgagee shall continue as if no such proceeding had
been taken.
(End of Article VI)
29
ARTICLE VII
MISCELLANEOUS
Section 7.1. Additional Security. Without notice to or consent of the Mortgagor and
without impairment of the lien and rights created by this Mortgage, the Mortgagee may accept
from the Mortgagor or from any other person or persons, additional security for the indebtedness
secured by this Mortgage. Neither the giving of this Mortgage nor the acceptance of any such
additional security shall prevent the Mortgagee from resorting, first, to such additional security,
or first, to the security created by this Mortgage, in either case without affecting the lien hereof
and the rights conferred hereunder.
Section 7.2. Release of Mortgaged Property and Easements. At the request of the
Mortgagor, the Mortgagee may, at any time and from time to time, in its sole discretion, consent
to, join in or permit a release of any part of the Mortgaged Property or the granting of any
easements, licenses, party wall rights and rights of lateral support with respect to the Project Site
or the Project Facilities. As a condition to the granting of such release, the Mortgagor will
deposit any money received by the Mortgagor with respect to the released Mortgaged Property
in the Bond Fund or in escrow for the payment of the Bonds. Such a release shall be permitted
only if the Mortgagee shall have determined that any of the foregoing is not prejudicial to the
Holders of the Bonds and does not impair the value or marketability of the Mortgaged Property
(taking into account any amounts to be deposited in the Bond Fund or held in escrow, as
aforesaid), as security under this Mortgage. None of the foregoing shall impair in any manner
the validity, or except as specifically provided therein the priority of this Mortgage.
Section 7.3. Expenses. The Mortgagor will, to the extent permitted by law, immediately
upon demand payor reimburse the Mortgagee for all attorneys' fees, costs and expenses incurred
by the Mortgagee in any proceedings involving an insolvent or a debtor under federal bankruptcy
law, or in any action, proceeding or dispute of any kind in which the Mortgagee is made a party,
or appears as an intervenor or party plaintiff or defendant, affecting or relating to the Series 1999
Notes or any other Notes secured hereby, this Mortgage or the Agreement, the Mortgagor or any
of the Mortgaged Property, including, but not limited to, the foreclosure of this Mortgage, any
condemnation action involving the Mortgaged Property, or any action to protect the security
hereof, and any such amounts paid by the Mortgagee shall be added to the indebtedness secured
hereby and secured by the lien and security interest of this Mortgage and shall bear interest at the
Interest Rate for Advances.
Section 7.4. Books. Records and Accounts. The Mortgagor will keep and maintain or
will cause to be kept and maintained proper and accurate books, records and accounts retlecting
all items of income and expense in connection with the operation of the Mortgaged Property or
in connection with any services, equipment or furnishings provided in connection with the
operation of the Mortgaged Property, whether such income or expenses be realized by the
Mortgagor or by any other person or entity whatsoever excepting sublessors unrelated to and
unaffiliated with the Mortgagor and who leased from the Mortgagor portions of the Mortgaged
30
Property for the purposes of occupying same. The Mortgagee and its designee shall have the right
from time to time at all times during normal business hours to examine such books, records and
accounts at the office of the Mortgagor or other person or entity maintaining such books, records
and accounts and to make copies or extracts thereof as the Mortgagee shall desire.
Section 7.5. Estoppel Affidavits. The Mortgagor, within ten days after written request
from the Mortgagee, shall furnish a written statement, duly acknowledged, setting forth the unpaid
principal of and interest on the indebtedness secured hereby and whether or not any offsets or
defenses exist against such principal and interest.
Section 7.6. Subrogation. The Mortgagee shall be subrogated to the claims and liens of
all parties whose claims or liens are discharged or paid by the Mortgagor with the proceeds of the
indebtedness secured hereby.
Section 7.7. No Merger. It being the desire and intention of the parties hereto that this
Mortgage and the lien thereof do not merge in fee simple title to the Mortgaged Property, it is
hereby understood and agreed that should the Mortgagee acquire any additional or other interests
in or to the Mortgaged Property or the ownership thereof, then, unless a contrary intent is
manifested by the Mortgagee as evidenced by an appropriate document duly recorded, this
Mortgage and the lien thereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
Section 7.8. General Provisions. This Mortgage shall be deemed to be made under the
laws of the State and for all purposes shall be governed by and construed in accordance with the
laws of the State and shall inure to the benefit of and be binding upon the Mortgagor, the
Mortgagee and their respective permitted successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid, illegal or unenforceable, the validity of the remaining
provisions hereof shall in no way be affected thereby. The captions or headings herein shall be
solely for convenience.
Section 7.9. Amendments. Changes and Modifications. Except as otherwise provided
herein, this Mortgage may not be effectively amended, changed, modified, altered or terminated
without the prior written consent of the Mortgagee and the Trustee.
In the event of the issuance of Additional Bonds, this Mortgage may not be effectively
cancelled, changed, modified or altered without written title evidence that the Trustee, as holder
of the Mortgage and of any amendments or supplements thereto relating to those Additional
Bonds, will have a valid, direct first mortgage upon the Mortgaged Property constituting real
property subject only to (i) taxes and assessments which are not delinquent, and (ii) liens and
encumbrances permitted by the terms and provisions of this Mortgage, as so supplemented or
amended. The title evidence shall consist of an American Land Title Association form of loan
policy of title insurance, or a commitment therefor, in usual and customary form in a face amount
acceptable to the Trustee. The policy or the commitment therefore shall be issued by a title
31
company authorized to transact business in the State, selected by the Mortgagor and approved by
the Mortgagee.
Section 7.11. Disposition. Except as permitted by and subject to the provisions of the
Agreement and Sections 3.1, 3.2, 4.3, 4.4., 5.1, 5.2, 5.3, 5.4 and 7.2 hereof, the Mortgagor
shall not sell, transfer, convey, lease or encumber (except Permitted Encumbrances) the
Mortgaged Property without the prior written consent of Mortgagee.
Section 7.11. Issuer's Right of Purchase. Notwithstanding the foregoing, the Mortgagee,
during any period the Series 1999 Bonds are Outstanding, shall have the right, but not the
obligation, to purchase the Cove Building following an Event of Default hereunder by paying the
Outstanding principal amount of the Series 1999 Bonds. In either such event, prior to such
purchase the Issuer shall deliver written notice of its election to purchase the Cove Building.
Upon such purchase this Mortgage shall terminate as to the purchased property and the
Mortgagee shall take such steps as may be required or permitted to remove the lien of this
Mortgage from such property.
(End of Article VII)
32
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage as of the date
hereof.
Signed and acknowledged
in the presence of:
BEF, INC., a Florida not-for-profit
corporation
By:
Title: President
Attest:
Title: Secretary
Witnesses as to BEF, Inc., a Florida not-for-
profit corporation
ST A TE OF FLORIDA )
) SS
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before this 1 st day of May, 1999 by
and the President and Secretary ,
respectively, of BEF, Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and seal as of this 1 st day of
May, 1999.
Name:
Notary Public, State of Florida
My Commission Expires:
(SEAL)
Personally Known D or Produced Identification D
Type of Identification Produced
33
EXHIBIT A
PROJECT SITE LEGAL DESCRIPTION
Site I - Cove Building
[to be provided]
EXHIBIT B
PERMITTED ENCUMBRANCES
B-1
EXHIBIT C
FORM OF PROMISSORY NOTES
B-2
EXHIBIT D
ASSIGNMENT OF MORTGAGE
AND SECURITY AGREEMENT
B-3