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HomeMy WebLinkAbout94-21108 RESO Incomplete RESOLUTION NO. 94-21108 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, flORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ONE WASHINGTON AVENUE CORPORATION, ASASSIGNEEOF SPECIALTY RESTAURANTS CORPORATION, FOR THE PREMISES COMMONLY DESCRIBED AS CRAWDADDY'S RESTAURANT, AND NOW KNOWN AS SOUTH POINTE SEAFOOD HOUSE (THE PROPERTY); THE AMENDMENT REPLACING EXHIBIT "A-1 ", DESCRIBING HiE PROPERTY, WITH A SITE SURVEY REFLECTING THE CORRECTED LEGAL DESCRIPTION AND AMENDED BUILDING FOOTPRINT. WHEREAS, pursuant to Resolution No. 85-18223, the City and Specialty Restaurants Corporation entered into a Lease Agreement (the Agreement) dated November 7, 1985, for the premises situated at South Pointe Park, One Washington Avenue, Miami Beach, Florida and commonly described as Crawdaddy's Restaurant and now known as South Point Seafood House; and WHEREAS, on September 2, 1993, the Mayor and City Commission approved Resolution No. 93-20899, approving an assignment of the Agreement from Specialty Restaurants Corporation, as assignor, to One Washington Avenue Corporation, as assignee; and WHEREAS, One Washington Avenue Corporation now proposes to acquire through a Purchase and Sale Agreement with Specialty Restaurants Corporation, the former Crawdaddy's Restaurant building and interest in the leasehold; and WHEREAS, pursuant to One Washington Avenue Corporation's application for a leasehold title insurance policy, the City and One Washington Avenue Corporation were made aware that Exhibit "A-1" of the Agreement, which provides a description of the property, is incorrect, and does not accurately represent the building footprint of the restaurant that was erected pursuant to the terms and conditions of the Agreement; and WHEREAS, the parties now wish to amend the Agreement to replace Exhibit "A-1" with the corrected legal description and amended building footprint, which would accurately reflect the current premises; and WHEREAS, the City and One Washington Avenue Corporation have accepted the attached site survey, certified as to both parties, as representing the accurate legal description and building footprint for the premises; and WHEREAS, the attached site survey in no way expands or enlarges the facility that was originally constructed pursuant to the terms of the Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, flORIDA that the Mayor and City Clerk be authorized to execute a First Amendment to the Lease Agreement between the City of Miami Beach and One Washington Avenue Corporation, as assignee of Specialty Restaurants Corporation, for the premises commonly described as Crawdaddy's Restaurant, now known as South Pointe Seafood House; the amendment replacing the legal description in Exhibit IA-1" with a site survey representing the correct legal description and building footprint of the restaurant building. day of April , 1994. PASSED and ADOPTED this 6th ATTEST: ~~. [.~v CITY CLERK RJAd sk2\a:\crawd add\new-desc, res 4/1/94 FORM APPROVED LEGAL DEPT. By :fc.y Date 3 . 31 - '{ '-1_ 2 ) H !I :;, ~I i"l 'i ... , ~ f :, q .. I t~ . it ..!I i -fS II II o <. , It ; t.. 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'. . . , . ~ ... ~ ,~ ~ 1\ ~ : J l~ ~ . , ~ ~ ~ to. ~ c .. ~ -1 \J . ~~ ~ ... ,<- 1 ~ .. ,\t " .'c t t /Q " t- -.;. .. /11 -<: " . ~ '. . . ,. I f,,' .. ." , , U "; r- 1:1 1\ n V' f>> t ~ . f~ .. , . . . . ;; , . , . c . -. ':-'It- ~ :. ! , " < . . ; ~ . , .~ < '! . ~ EXHIBIT IIA-III ! 1 I OFFICE OF THE CITY ATTORNEY ~ of J/{imni 11mM F L o R o A CITY ATTORNEY POBOX 0 MIAMI BEACH, FLORIDA 33119-2032 TELEPHONE (305) 673-7470 TELECOPY (305) 673-7002 LAURENCE FEINGOLD COMMISSION MEMORANDUM NO. A ~t)-q~ DATE: April 6, 1994 FROM: MAYOR SEYMOUR GELBER MEMBERS OF THE CITY COMMISSION ~ /", ... , LAURENCE FEINGOLD ' k'... _.. ~ ~ CITY ATTORNEY ~~J ROGER M. CARLTf"'\"'I/7 ,~ . CITY MANAGER ~ TO: SUBJECT: CITY CONSENT TO LEASEHOLD MORTGAGES AND SECURITY AGREEMENTS FOR SOUTH POINTE SEAFOOD HOUSE (FORMERLY CRAWDADDY'S RESTAURANT) The attached appraisal information was prepared by the Florida Business Development Corporation, the local branch of the Small Business Administration, in valuing the above-referenced leasehold interest. As you will note, as of avaluation date of March 4, 1993, the leasehold interest on the restaurant was valued at $2.4 million. This document will supplement what was already included in the original Commission packet for the above-referenced subject (Item R-7-1). RJNcnm RJAdsk2\a:lcrawdadd\l-1612,cm 73 AGENDA ITEM R-l-A-L L.j-~-9~ DJ.\TE 1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139 03-14-1994 10:27AM FROM FLOP!DH BUS DEv CORP TG 1:~56~3~-=~ F.J~ 8fJIIHJlRr or SALIEN'r FAf:rS AND CONCLUSIONS crawdaddy'. Re.~auran~ 1 wa.hinqton Av.nue, Ni..i Beach, FL Restaurant 16,000 sq.ft., .37 acre. (100' x 160' Building Pa4 Only) ~21,000 sq. ft. leasable, ~21.000 .q.ft. 9ro.. Opened April 1, 19., Adequa~e: parkin9 Rh~~~ with adj.cen~ South Point. Park , Aaphitbea~.r Il1prov...nta only (Subject Property): sp.aiAl~y R..tauran~ corpor.~ion, CA Land (no~ included in Yalua~ion)1 city of Miaa! SeaCh GU (Niami Beach: Gov.rnment Us.) Parks , R.creation Property Apprai.ed Property Ut. Land Area Buildinc; Are. y.ar suilt parkinv ownership zoning Land U.. Plan concurrency The subject i. not locat.d in a deferral Bone, refer to paye JO. Polio Huaber 4210-000-0042 Cenau. Tract 45 Flood Zone Map 120aSC0192' Zone AB - E! 8 (full de.oription in .ita see~lon) Hi9h..t , Best U.. R..taurant, a. currently improved VAWB BSTlMATBS ADDroam.. ,.. Slmpl. teased Estate Fee $3,590,000 $1,180,000 InOOll4l - DCI' IDeo.. - Direct Cap. $3,600,000 $1,176,000 Sa1.. cOII~ri.on $3,617,000 n/a Co.t nla n/a ----...... --- .,IDL D1tIft vaLUI f3,.00,000 fl,200,000 Per sq. rt. Restaurant $171.42 $57.14 Valua~ion Date. 03/04/92 - & - tea.ehold Intere.t $2,410,000 $2,360,000 $2,425,000 $ nfa $2,552,000 ---- fl,oIOO,OOO $114.29 ROE .,.. - 2 WESTBERRY &'\SS()CIAIES~, lie'. 1(",1 .....,iIt, Iro"" 74 03-;'4-1994 10: 2a:t1 FRCt1 FUYlDA BUS DEl) CORP Tel 13~56-3~~o~ ~.Jj SUHHARr 0' SALIBN'r I'AC'rS AND CONCLUSIONS - Cont. ~.Ilt:.. The 8ubj.et property 1~ ~n attractive, 2-8tory rastaurant and lOUDge vhich has wood aiding, a copp.r roof and an in~.rior t.hat i. boautifully appolnted with victorian-ara furnishings and acces8orie.. The .ite is located wi~hin South Point. Park and fronto on Covern..nt cut with .p.ctacular views of ,i.h.r Island, the Atlantic ocean, the Port of Miaai and Dcvntovn Kiami. The property i. looated on South Kiami 8ea~h, which ha. rebounded fro. a 9-year buil~in9 aoratoriaa (1974 to 1983) with the h.lp of the City Redevelopa.nt Agency. progre.. wa. slow in the initial years of the effort, but sine. 10tO, tbi. haa beoome one ot the hotte.t real ..tate .ark.t. in Florida. Num.rous botal./restaurants and apa~..nt buildin,. bave been r.novated and new construc- tion is also eviden~. South Beach has become . haven to youn9 prot...lonala, a~ti.t., !or.19n investors and tourist.. The gro~ is .xpected to continue. Crawdaddy's i. subleased to South pointe Hospitality, Inc. (Arthur Forqette). The landlor~ 1s specialty Restau- rant Corporation, who lea... the land frOB Miami' Beach. Le... .uaaari.. are contaIned 1n the Inco.. Approach .ection of this report. The suble.... intends to purcha.e U,e lea..hold position fro. specialty Restaurant and this appraisal 1. for neqotiations and financing in that regard. The ..in tocu. in valuing the leasehold inter..t in the .ubje~ 1. determining market rent for the real e.tate and "'B. The curr.nt subleas. r.flects business value (the .ubless.. took over an on-qoinq op.ration) .nd is above ..rket rent tor the facility. w. valued the property in faa simple and deduct ad the l.ased f.. (land) inter..t. Pl.... note that the l.n~ le... i. below .ark.t because the City va. tryinq to encourage develop.ent in South Beach. It has 15 years r...ining on the oriqin.l t.ra and two lO-year .xt.nAinn~. Therefor., it. value must be ba..~ on the 1.... te~., althouQh this is les. than could be tJarn.r~ in thA ~Urrent .arket. ~e benefit accrue. to the leasehold position. - 5 - ROE WESTBERRY &~~:JAJ'ES.INC. tIC'. Hulr."',"'. '''ul"., 75 03-14-199~ Hl: 28j:(1 FR01 FUJR 1 ~ BUS DEI, COF'P TO 13056i37~82 P,~~ SUHHAltr 01' SALI.N:r FACTS AND CONCLUSIONS - !'ont:. t!~eJlt. J, - cont. The subl..see ha. paid ~~~~.rty ta~.. to Specialty R..taurants, but the DltdA ~n\1nt'y Tax Collect:or roporte t:hat the $&0,456 in dAlinqu.nt t'ax.lI. After lIarob 31, ~a 199:2 tax.. ($]Q,77~ ~lue $10,185 for PQrllonal proparty), vill ~l~o ~Ccm8 pa.t dUe. Additionally, tho 9roun4 rent (payab18 to the city of Mi..i .eaoh) i. in arrear.. Thes. it... need to bo paid by speoialty nes~aurent prior to ole.ill9. 8inc. ~. eubl..aoe took over the prop.rty in February It~l, ,r~e eal.. have inorea.ed 15.1' (1992 vs 1"1) and 10' (budgete4 It93, already exceeded this in tirst 3 aonth.) . &..laBllell~ Appraisal Purpo.. Market Value "as ls" Apprai.el Func~ion Mortgage coll~t.ral analys1s Int.r"~ Apprai.ed Leasehold (tee simple and 1.ase4 rea are al.o est1.ate4 fer analysls, but not part ot the coll.~eral.) Property Apprals.4 Iteal estate and '''''is siaaitlaant Aaarai.al D.t.~ Report ordered February 19, 1993 Approval to Proceed March 3, 1993 Date of Valuation Our appraIsal ia based on conditions .. of Maroh 4, 1993. Date of Inspect.ion (' by vhOll) Raport sune" Repert COllpletecl oate of Transmittal Jeanette D. Peck and Denise C. RAid made a personal inspeotion of t.h. subjeot property on March ., 19Q,. March 19, 199~ March 29, lQQ1 MArch 29, 10t3 - , - RClF. . NVESTBERRY &.~s.SCX~~~.Qi~'IC. Ltc'. 1\~'" r:"'-Dlh' Mu.S.".. TOTAL P.04 16 ;f'J ~ \}J ~l~ NOTE: THIS INSTRUMENT IS 'A LEASEHOLD MORTGAGE AND THEREFORE NON- RECURRING INTANGIBLE TAX IS NOT DUE OR PAYABLE. THIS INSTRUMENT PREPARED BY: LUIS A. CONSUEGRA, ESQ. 780 N.W. 42 Avenue suite 300 Miami, FL 33126 r ' ,- .J ,) LEASEHOLD PIRST MORTGAGE AND SECURITY AGREEMENT -, ,- c... I c.'.... c..n THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), made as of the day of , 1994, between SOUTH POINTB HOSPITALITY, INC., a J'lorida corporation, d/b/a Crawdaddy' 8 Restaurant, (the "Borrower"), as borrower, whose principal place of business is 1 Washington Avenue, Miami Beach, Florida, 1 WASHINGTON AVENUB CORP., a J'lorida corporation, (the "Mortgagor"), as mortgagor of the premises located at 1 Washington Avenue, Miami Beach, Florida, and OCEAN BANK, a state banking corporation (the "Mortgagee"), as mortgagee and secured party, whose address is 780 N.W. 42 Avenue, Miami, Florida 33126. ARTICLB I DEFINITIONS, HEADINGS, RULES OF CONSTRUCTION AND SECURITY AGREEMENT. 1.1 Definitions. As used in this mortgage and in the exhibits attached hereto, the following terms shall have the following meanings herein specified, such definitions to be applicable equally to the singular and plural forms of such terms; (a) Commitment: The Commitment letter from Mortgagee to Borrower dated as of October 22, 1993, together with any amendments thereto. (b) Default Rate: The Default Rate as defined in the Note. (c) Events of Default: Article VII hereof. Those events described in (d) Fixtures: All property and equipment now owned or hereafter acquired by Mortgagor and now or hereafter located under, on, or above the Land, whether or not permanently affixed, which, to the fullest extent permitted by applicable law in effect from time to time, shall be deemed fixtures and a part of the Land. (e) Governmental Authority: Any (domestic or foreign) federal, state, county, municipal or other governmental department, entity, authority, commission, board, bureau, court, agency or any instrumentality of any of them. (f) Governmental Requirement: Any law, enactment, statute, code, ordinance, order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any 1 EXHIBIT IIAII Gover~~E~~al Authority now existing C~ hereafter enacted, adopted, promulgated, entered, or issued applicable to the Mortgagor, the Lar.d, t~c Improvements, or any of the Mortgaged Property. (g) Ground Lease. That certain unrecorded Lease by and between City of Miami Beach, a municipal corporation of the State of Florida, as Landlord, and Specialty Restaurants Corporation, a California corporation authorized to transact business in the State of Florida, as Tenant. Said unrecorded Lease has been assigned to 1 WASHINGTON AVENUE CORP., a Florida corporation, MORTGAGOR, by Assignment of Lease recorded of even date in the public records of Dade County, Florida. (h) Guarantor: Jointly and severally any and all Persons now or hereafter guarantying this Obligation or any part thereof (collectively referred to as the "Guarantor"). (i) Guarantv: Any guaranty of payment, performance or completion executed by any Guarantor in favor of Mortgagee with respect to this Obligation. (j) Hazardous Substances: Any hazardous, toxic or dangerous waste, substance or material including, but not limited to, those elements or compounds which are now or hereafter contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (the "EPA"), the list of toxic pollutants designed by the United States Congress or the EPA or as designated by any other federal, state, or local statute, law, ordinance, code, rule, regulation, order or decree. (k) Imposi tions: All (i) real estate and personal property taxes and other taxes and assessments, public or private; utility rates and charges including those tor water and sewer; all other qovernmental and non-governmental charges and any interest or costs or penalties with respect to any of the foregoing; and charqes for any public improvement, easement or agreement maintained for the benefit of or involvinq the Land, the Improvements or any of the Mortgaged Property, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that at any time prior ~to or after the execution of this Mortgage may be assessed, levied or imposed upon the Land, the Improvements or any of the Mortgaged Property or the Rent or income received therefrom, or any use or occupancy thereof, (ii) other taxes, assessments, fees and governmental and non- governmental charges levied, imposed or assessed upon or against Mortgagor or any of its properties and (iii) taxes levied or assessed upon this Mortgage, the Note, and the other Obligations, or any of them. (1) Improvements: All buildings, structures, appurtenances and improvements, including all additions hereto and replacements and extension thereof, now constructed or hereafter to be constructed under, on or above the Land, which term includes any part thereot. (m) Land: The real property described in Exhibit "A" attached hereto and made a part hereof, together with all rights, privileges, tenements, hereditaments, rights of way, easements, appendages, projections, appurtenances, water rights, including riparian and littoral rights, streets, ways, alleys, and strips and gores of land now or hereafter in anyway belonging, adjoining, crossing or pertaining to the Land. en) Leasehold Estate: Mortgagor in the Land, created by, the Ground lease which includes, Improvements and Fixtures now or The leasehold estate held by arising under and by virtue of but is not limited to, all hereafter erected thereon or 2 affixed thereto and any and all rights and privileges app~~tenan: thereto. (0) Lessee: 1 K.~SHINGTON AVENUE CORP. I with offices located at 1 Washington Avenue, Miami Beach, Florida. (p) Lessor: CITY OF MIAMI BEACH with offices located at 1700 Convention Center, Miami Beach, Florida. (q) Loan: $ 1,250,000.00 as evidenced by the Note. (r) Loan" Documents: The Commitment and those items required by the Commitment and any other document or instrument executed, submitted, or to be submitted by Mortgagor or others in connection with the Loan, including but not limited to the: (i) Note, (ii), Mortgage, (iii), Guaranty, (iv) Loan Agreement, (v) Financing statements, and any other document or instrument defined as "Loan Documents" in the Loan Agreement. (s) Mortgaged Property: The Leasehold Estate, Ground Lease, Purchase Option, Improvements, Fixtures, Subleases, Rents and Personal Property together with: (i) all jUdgments, awards of damages and settlements hereafter made resulting from condemnation proceedings or the taking of the Land, the Improvements or any of the Mortgaged Property or any part thereof under the power of eminent domain, or by agreement in lieu thereof, or for any damage thereto caused by any governmental action (whether by such taking or otherwise), such as without limitation, any award for change of grade or streets; (ii) all judgments, awards and settlements hereafter made, and all insurance proceeds hereafter paid for any damage to the Land, the Improvements or any of the Mortgaged Property, and all unearned insurance premiums on any insurance policies maintained by the Mortgagor pursuant to this Mortgage; (iii) all awards and refunds hereafter made with respect to any Imposition; (iv) the estate, right, title, interest, privilege, claim or demand whatsoever of Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged Property; (v) all rights and benefits of every nature whatsoever derived or to be derived by the Mortgagor under or by virtue of the Ground Lease, inClUding, without limitation, the right to exercise options, to give consents, and to receive monies payable to the Lessee thereunder. (vi) any extension, renewal or modification, as permitted by mortgagee, of the Leasehold Estate created by the Ground Lease; (vii) all right, title and interest that Mortgagor may hereafter acquire in the Land whether by exercising the Purchase Option or otherwise; and (viii) all right, title and interest of the Mortgagor in and to all and singular tenements, hereditaments, easements, rights, privileges and appurtenances of the Leasehold state at any time belonging or in any way appertaining thereto. The Term Mortgaged Property includes any part of the foregoing property described as Mortgaged Property, and all proceeds, products, replacements, improvements, betterment, extension, additions, substitutions, renewals, accessories, and appurtenances 3 thereto and thereof. (t) Mortqagee: OCEAN BANK, a state banki~; corpor~tion, its successors and/or assigns with offices located at 780 N.W. 42 Avenue, Miami, Florida 33126. (u) Mortgagor: 1 WASHINGTON AVENUE CORP., a Florida corporation, with offices located at 1 Washington Avenue, Miami Beach, Florida. (v) Borrower: SOUTH POINTE HOSPITALITY, INC., a Florida corporation, d/b/a Crawdaddy's Restaurant, with offices located at 1 Washington Avenue, Miami Beach, Florida. (w) ~ote: herewith from Borrower and by this reference though set out in full The Promissory Note dated of even date to Mortgagee in the amount of $1,250,000.00 made a part hereof to the same extent as herein. (x) Obligations; (i) Any and all of the indebtedness, liabilities, covenants, promises, agreements, terms, conditions, and other obligations of every nature whatsoever, whether joint or several, direct or indirect, absolute or contingent, liquidated or unliquidated, of Borrower, Mortgagor and Guarantor, or any of them, to Mortgagee, evidenced by, secured by, under and as set forth in the Note, this Mortgage, the Guaranty or the other Loan Documents; and (aa) Corooration: Any officer of the corporation, or other form of the corporation, howsoever designated. (bb) Permitted Title Exceptions: Those matters, if any, described in Schedule B to the title insurance pol icy insuring Mortgagee's interest in this Mortgage. (cc) person; Any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or C\gency or political subdivision thereof, or any other form of entity. (dd) Personal Property: All of the following property of Mortgagor whether now owned or existing, or hereafter acquired or arising, whether located in, on, pertaining to, used or intended to be used in connection with or resulting or created from Mortgagor's Leasehold Estate in, or Mortgagor's development, management, or operation of the Land: (i) all Improvements (to the extent same are not deemed to be real property) and landscaping; (ii) all Fixtures (to the extent same are not deemed to be real property) and goods to become Fixtures; (iii) all accounts, accounts receivable, other receivables, contract rights, chattel paper, instruments and documents; any other obligations or indebtedness owed to Mortgagor from whatever source arising; all rights of mortgagor to receive any performance or any payments in money or kind; all guaranties of the foregoing and security therefor; all of the right, title and interest of Mortgagor in and with respect to the goods, services, or other property that gave rise to or that secure any of the foregoing, and all rights of Mortgagor as an unpaid seller of goods and services, including, but not limited to, the rights to stoppage in transit, replevin, reclamation, a resale; 4 (iv) all goods, including without limitation, al: machinery, equipment, furniture, furnishings, building supplies and ~aterials, appliances, business machines, tools, aircraft and motor vehicles, of every kind and description and all warranties and guaranties for any of the foregoing; (v) all inventory, merchandise, raw materials, parts, supplies, work in process and finished products intended for sale, of every kind and description, in the custody or possession, actual or constructive, of Mortgagor including such inventory as is temporarily out of the custody or possession of Mortgagor, and any returns upon any accounts and other proceeds resulting from the sale or disposition of any of the foregoing, including, without limitation, raw materials, work in process and finished goods; (vi) all general intangibles, including without limitation, corporate or other business records and books, computer records whether on tape disc or otherwise stored, blueprints, surveys, architectural or engineering drawings, plans and specifications, trademarks, tradenames, goodwill, telephone numbers, licenses, governmental approvals, franchises, permits, payments and performance bonds, tax refund claims, and agreements with utility companies, together with any deposits, prepaid fees and charges paid thereon; (vii) all Subleases and Rents (to the extent same are not deemed to be real property); (viii) All judgments, awards of damages and settlements paid or payable to Mortgagor from any condemnation or eminent domain proceedings regarding the Land, the Improvements or any of the Mortgaged Property; (ix) all insurance policies required by this Mortgage, the unearned premiums therefor and all loss proceeds thereof; (x) all other personal property, including without limitation, management contracts, construcuion contracts, architectural contracts, service contracts, engineering contracts, advertising contracts, contracts for purchase and sale of any of the Mortgaged Property, purchase orders, equipment leases, monies in escrow accounts, reservation agreements, prepaid expenses, deposits and down payments with respect to the sale or rental of any of the Mortgaged Property, options and agreements with respect to additional real property for use or development of the Mortgaged Property, end-loan commitments, abstracts of title, all brochures, advertising materials, condominium documents and prospectuses; and (xi) all proceeds, products, replacements, additions, betterments, extensions, improvements, substitutions, renewals and accessions of any and all of the foregoing. (ee) Rents: All of the rents, reimbursements, royalties, issues, revenues, income, profits, security deposits, and other benefits whether past due, or now or hereafter arising from the Mortgaged Property and the occupancy, use and enjoyment thereof. (ff) Subleases: Any and all subleases, licenses, concessions, or grants of other possessory interests, together with the security therefor, now or hereafter in force, oral or written, covering or affecting the Mortgaged Property or any part thereof. 1.2 Headings. The Article headings and the Section and Subsection titles hereof are inserted for convenience of reference only, and shall in no way alter or modify the text or substance of 5 such Articles, SeC:ions and SUbsections. 1. 3 Rules Of. Construction. The Use of any gender shall include all other genders. The singular shall include the plural and the plural shall include the singular. The word "or" is not exclusive and the Use of the word "and" may be conjunctive or disjunctive in the sole and absolute discretion of Mortgagee. The captions of Articles, Sections and Subsections of this Mortgage are for convenient reference only, and shall not affect the construction or interpretation of any of the terms and provisions set forth herein. 1.4 Securitv Aareemen~ This Mortgage constitutes a "Security Agreement" within the meaning of and shall create a security interest under the Uniform commercial COde-Secured Transactions as adopted by the State of Florida, with respect to the Fixtures, Subleases, Rents and Personal Property. A carbon, Photographic or other reproduction of this 1Il0rtgage or of any financing statelllent shall be sufficient as a financing statement. The 1Il0rtgaged property and the secured party' s address are set forth in the intrOduction of this Mortgage. ARTICLE II ~RANT I 2.1 ~rant4 For good and valuable consideration, the receipt and SUffiCiency of which is hereby acknowledged, and to secure the payment, observance, performance and disCharge of the Obligations, Mortgagor does by these presents give, tranSfer, grant, bargain, sell, alien, relllise, release, assign, 1Il0rtgage, hypothecate, deposit, Pledge, set over, confirm, Convey and warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and to the Mortgaged Property, whether now owned or held or hereafter acquired by Mortgagor, Subject, however, to the Permitted Title Exceptions, to have and to hold the Mortgaged Property unto Mortgagee, its SUccessors and/or assigns forever. 2.2 Condition of Grant. The condition of these presents is such that if Mortgagor shall pay, observe, perform and discharge the Obligations, or cause same to be paid, observed, performed and discharged in strict accordance with the terms thereof then this Mortgage and the estates, interests, rights and assignments granted hereby shall be null and void, but otherwise shall remain in fUll force and effect. 2.3 SUbroqation4 The Mortgagee is hereby Subrogated to the claillls and liens of all parties whose claillls or liens are fUlly or partially discharged or paid with the proceeds of the indebtedness secured by this Mortgage notwithstanding that such claillls or liens may have been canceled and satisfied of record. ARTICLE III ASSIGNMENT OF SUBLE~SES AND REN~ 3.1 Ass!anmen~ The Mortgagor does hereby absOlutely and unconditionally assign and transfer to Mortgagee all of Mortgagor's estate, right, title and interest in and to the SUbleases and Rents, to have and to hold the SUbleases and Rents unto Mortgagee, its SUccessors and assigns forever. Frolll tillle to tillle, upon ~equest of Mortgagee, Mortgagor shall give further evidence of this \ssignlllent to Mortgagee by executing and delivering to Mortgagee 'pecific assignments of the SUbleases and Rents, in form and 'ontent approved by Mortgagee. All SUch specific assignments shall 'e of the sallie dignity and priority as this Mortgage. From time to ime, upon request of Mortgagee, Mortgagor shall also execute and 6 any subtenant under any SublAase to assign or sublet its rig~:~ thereunder. 3.7 Delivery of Execut~~ Subleases and Monthly status Reports. Mortgagor covenants that it shall furnish Mortgagee with executed copies of all Subleases within ten (10) days after the execution thereof, and a monthly status report on all leasing activities, together with such other related information as may be reasonably required by Mortgagee. 3.8 No Obliqation of Mortgagee. This Assignment shall not be deemed or construed to constitute Mortgagee as a mortgagee in possessio of the Mortgaged Property nor shall it obligate Mortgagee to take any action or to incur expenses or perform or discharge any obligation, duty or liability of Mortgagor under any Sublease. 3.9 Cumulative Remedies. Each and every right, remedy and power granted to Mortgagee by this Article shall be cumulative and in addition to every other right, remedy and power given by the Loan Documents and now or hereafter existing in equity, at law, or by virtue of statute or otherwise. The failure of Mortgagee to avail itself of any of its rights, remedies and powers shall not be construed or deemed to be a waiver thereof. 3.10 Notification of Mortgagee's Rights. Mortgagee shall have the right, but not the obligation, at any time and from time to time, to notify any subtenant under any Sublease of the rights of Mortgagee a~ provided in this Article III and Mortgagor, upon demand from Mortgagee, shall confirm to such subtenant the existence of such rights. 3.11 Management and Leasing: (a) The Mortgagor covenants that the Mortgaged Property shall be managed by the Mortgagor or by a management company which shall have been approved in writing by the Mortgagee and pursuant to a management agreement which shall have been approved in writing by the Mortgagee prior to the execution thereof. (b) If at any time Mortgagee shall determine, in the exercise of Mortgagee's sole discretion, that Mortgagor has failed to proceed with reasonable diligence in the leasing of the rental space contained in or on the Mortgaged Property, Mortgagee may, at its option, require Mortgagor to employ a reputable real estate leasing organization to lease such rental space. The selection of such company by Mortgagor shall be subject to the prior written approval of Mortgagee. (c) In the event Mortgagor shall fail to select a company approved by Mortgagee within twenty (20) days after Mortgagee shall request Mortgagor to do so pursuant to Subsections Ca) or (b) above, such failure shall constitute an Event of Default under this Mortgage. 3.12 Leasing Commission. Mortgagor covenants that every agreement to pay leasing commissions with respect to the leasing of space in the Mortgaged Property, or any part thereof, are and shall be subject, subordinate and inferior to the right of Mortgagee, so that in the event Mortgagee acquires title to the Mortgaged Property either at a foreclosure sale or by other means, Mortgagee will be exonerated and discharged from all liabilities for the payment of any such commissions or compensations. 3.13 Attorney-in-Fact. To further effectuate Mortgagee's rights under this Article III, Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in- fact, which appointment is coupled with an interest, with full 8 . po...;er of substitution, and e::-,f":',;':;:-3 said attorney or ,:i~:'h'-'::i..J the name of Mortgagor, but at the option of said attorney-in-fact, to (i) collect and receive tho Rents and to i~~~c ~c~eipt5 therefor, (ii) to make, enter into, extend, mOdi!y, ~~end, terminate, consent to the cancellation or surrender of any Sublease, or permit any subtenant to assign or sublet its rights thereunder, (iii) to execute, acknowledge and deliver any and all instruments and documents that Mortgagee may deem necessary or proper to implement its rights as provided in this Article III and (iv) to perform and discharge any and all obligations and undertakings of Mortgagor under any Sublease. 3.14 Other Assignments. Mortgagor shall not further assign or transfer the Subleases or Rents except in favor of Mortgagee as provided in this Article III, and shall not create or permit to be created or to remain, any mortgage, pledge, lien, encumbrance, claim, or charge on the Subleases or Rents. Any transaction prohibited under this section shall be null and void. ARTICLB IV REPRESENTATIONS AND WARRANTIES 4.1 Representations and Warranties. represents and warrants to Mortgagee that: (a) Organization. Corporate Status. Etc. Mortgagor and Borrower (i) are corporations, validly existing and in good standing under the laws of the State of Florida, (ii) have corporate power and authority to own its properties and to carryon its business as now being conducted, (iii) are qualified to do business in the State of Florida, and (iv) are in compliance with all Governmental Requirements. Mortgagor hereby (b) Validity of Loan Documents. (i) The execution, delivery and performance by Mortgagor of the Ground Lease and the Loan Documents, and the borrowing evidenced by the Note, (A) are within the powers and purposes of Mortgagor and Borrower, (B) have been duly authorized by all requisite action Qf Mortgagor and Borrower, (C) do not require the approval of any Governmental Authority, and (0) will not violate any Governmental Requirement, the articles of incorporation or bylaws of Mortgagor and/or Borrower, or any indenture, agreement or other instrument to which Mortgagor is a party or by which it or any of its property is bound, or be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge, or encumbrance of any nature whatsoever upon any of its property or assets, except as contemplated by the provisions of the Loan Documents; and (ii) the Ground Lease and Loan Documents, constitute the legal, valid and binding obligations of Mortgagor and other obligor named therein, if any, in accordance with their respective terms. (c) Financial statements. All balance sheets, statements of profit and loss, and other financial data that have been given to Mortgagee with respect to the Mortgagor, Borrower and the Guarantor, (i) are complete and correct in all material respects, (ii) accurately present the financial condition of said parties as of the dates, and the results of its or their operations, for the periods for which the same have been furnished, and (iii) have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods covered thereby; all balance sheets disclose all known liabilities, direct and contingent, as of their respective dates; and there has been no change in the condition of the Mortgagor or the Guarantor, financial or otherwise, since the date of the most recent financial 9 statements given to Mortgagee ~ith respect to said parties, ocher than changes in the ordinary course of business, none of which changes has been lliaterially adverse. Cd) Other Agreements. Mortgagor is not a party to any agreement or instrument materially and adversely affecting any of the Mortgaged Property, Mortgagor, or Mortgagor's present or proposed businesses, properties or assets, operation or condition, financial or otherwise, and Mortgagor is not in default in the performance, service or fulfillment of any of the material obligations, covenants or conditions set forth in any agreement or instrument to which it is a party. (e) other Information. All other information, including reports, financing statements, certificates, appears, date and otherwise, given and to be given to Mortgagee with respect (i) to Mortgagor or any Guarantor, (ii) to the Ground Lease, (iii) to the Loan and (iv) to others obligated under the terms of the Loan Documents, are true, accurate and correct in all material respects and complete. (f) Title. Mortgagor is the sole owner and holder of the entire lessee's interest in the Ground lease and of the Leasehold Estate created thereby. Mortgagor will preserve its title to the Mortgaged Property and will forever warrant and defend the same to Mortgagee and will forever warrant and defend the validity and priority of the lien of this Mortgage against the claims of all persons and parties whomsoever. (g) No violations. To the best of Mortgagor's knowledge, no Governmental Requirement, and no covenant, condition, restriction, easement or similar matter affecting the Land, the Improvements or any of the Mortgaged Property has been violated and Mortgagor has not received any notice of violation from any Governmental Authority or any other person with respect to any of the foregoing matters. (h) Ground Lease. The fully executed copy of the Ground Lease delivered to Mortgagee by Mortgagor is a t~e, correct and complete copy of the Ground Lease. The Ground Lease is in full force and effect, in good standing, and is unmodified as of the date hereof. All rents (including additional rents and other charges) reserved in the Ground lease have been paid to the extent that they were payable prior to the date hereof. There is no existing default under the Ground lease or in the performance of any of the terms, covenants, conditions or warranties thereof by Mortgagor or by lessor, and no event has occurred which with due notice or the lapse of time, or both, would constitute a default thereunder. (i) Taxes. Mortgagor has filed all federal, state, county and municipal income tax returns required to have been filed by it, and has paid all taxes that have become due pursuant to such returns, pursuant to any assessments received by it or pursuant to law, and Mortgagor does not know of any basis for additional assessment with respect to such taxes or additional taxes. The Land is assessed separately from all other adjacent land for the purposes of real estate taxes and there is no intended public improvements which may involve any charge being levied or assessed, or which result in the creation of any lien upon the Land, the Improvements or any of the Mortgaged property. (j) Litigation. There are no judgments outstanding against Mortgagor or Borrower and there is no action, suit, proceeding, or investigation now pending (or to the best of Mortgagor's and Borrower's knowledge after dil igent inquiry), threatened against, involving or affecting Mortgagor or the 10 Mortgaged Property, or any part 'C.[.er:;,~ [, d;: lc1w, ln eq'~ i. ty c;:: before any Governmental Authority that if adversely determined as to the Mortgagor or as to the Mortgaged Pr0p~rty would result in ~ material adverse change in the business or financial condition of the Mortgagor or Mortgagor's operation and ownership of the Mortgaged Property, nor is there any basis for such action, suit, proceeding or investigation. (k) utilities. There is available to the Land and Improvements through public or private easements or rights of way abutting or crossing the Land (which would inure to the benefit of Mortgagee in case of enforcement of this mortgage) a water supply and a sanitary sewer service approved by all health and other authorizes having jurisdiction, and electric, gas (if applicable) and telephone service, all of sufficient capacity to serve the needs of the Land and Improvements according to their intended purposes. (1) Condition of Mortgaged Property. Neither the Land, the Improvements nor any of the Mortgaged Property or any part thereof, now existing, is damaged or injured as a result of any fire, explosion, accident, flood or other casualty. To the best of Mortgagor's knowledge, the Improvements, as of the date of this mortgage, are free of any defects in material, structure and construction and do not violate any Governmental Requirements. To the best of Mortgagor's knowledge, there is no existing, proposed or contemplated plan to modify or realign any street or highway or any existing, proposed or contemplated eminent domain proceeding that would result in the taking of all or any part of the Land, the Improvements or any of the Mortgaged Property, or that would adversely affect the use or the operation of the Land, the Improvements or any of the Mortgaged Property. (m) Zoninq. The Land is zoned so as to permit the Land and Improvements to be used for their intended purpose. (n) No Default. No default or Event of Default exists under any of the Loan Documents; and no event has occurred and is continuing which, with notice or the lapse of time, or both, would constitute a default under any provision thereof." (0) Fictitious Name statute. Mortgagor, if applicable, has duly complied with all of the requirements of the Florida Fictitious Name statute. (p) Environmental Contamination/Hazardous Substances. To the best of the Mortgagor's knowledge based on environmental audit reports, neither the Land, the Improvements nor any of the other Mortgaged Property has in the past been used for the handling, storage, transportation or disposal of Hazardous Substances other than as disclosed in the environmental audit reports previously submitted by Mortgagor to Mortgagee. Neither the Land, the Improvements nor any of the other Mortgaged Property is presently being used for the handling, storage, transportation, or disposal of Hazardous Substances except in full compliance with all applicable legal requirements. No notice or advice has been received by Mortgagor of any condition or state of facts that would be contributing to a claim of pollution or any other damage to the environment by reason of the conduct of any business on the Land, the Improvements or any of the Mortgaged Property or the operation thereof as presently being conducted. (q) Guarantor's Representations and Warranties. The representations and warranties of the Guarantor contained in the Guaranty are true and correct. 4.2 Reliance on Representations. The Mortgagor acknowledges 11 ~~at the Mortgagee has relied upon the Mortgagor's representations, has made no independent investigation of the truth thereof, is not charged ~ith any knowledge contrary thereto that may be received by an examination of the public records in Tallahassee, Florida, and wherein the Land is located, or that may have been received by any officer, director, agent, employee or shareholder of Mortgagee. ARTICLE V AFFIRMATIVE COVENANTS 5.1 Payment and punctually perform, punctually performed, payable. Performance. Borrower shall promptly pay and or shall cause to be promptly paid and all of the Obligations as and when due and 5.2 Existence. Mortgagor and Borrower shall preserve and keep in full force and effect their existence, rights, franchises, trade names and qualification to transact business in the State of Florida. 5.3 Compliance with Laws. Mortgagor shall promptly and faithfully comply with, conform to and obey all Governmental Requirements and the rules and regulations now existing or hereafter adopted by every Board of Fire Underwriters having jurisdiction, or similar body exercising similar functions, that may be applicable to Mortgagor, the Land, the Improvements or any of the Mortgaged Property or to the use or manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Land, the Improvement or any of the Mortgaged Property, whether or not such Governmental Requirement or rule or regulation shall necessitate structural changes or improvements or interfere with the use or enjoyment of the Land, the Improvements or any of the Mortgaged Property. 5.4 Impositions. (a) Mortgagor shall pay all Impositions on the Land, the Improvements and the other Mortgaged Property and~ll taxes levied or assessed upon this Mortgage, the Note and the Obligations, or any of them. In the event of the passage, after the date of this Mortgage, of any law (i) making it illegal for the Mortgagor to pay the whole or any part of the Impositions, or charges or liens herein required to be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and all taxes levied or assessed upon this Mortgage, the Note, or the Obligations or the interest in the Mortgaged Property represented by this Mortgage unlawful, or (iii) rendering the covenants for the payment of the matters set forth in Subparts (i) and (ii) of this Subsection by Mortgagor legally inoperative, the Mortgagor shall pay, upon demand, the entire unpaid Obligations notwithstanding anything in the Note, this Mortgage, or the other Loan Documents to the contrary. (b) Mortgagor shall deliver to Mortgagee, on or before December 31 of each year, tax receipts evidencing the payment of all ad valorem taxes upon the Land, the Improvements and the other Mortgaged Property for the then current calendar year, and shall deliver to Mortgagee receipts evidencing the payment of all other Impositions within thirty (30) days after same become due and payable or before same shall become delinquent, whichever is sooner. 5.5 Insurance. (a) The Mortgagor shall obtain, maintain and keep in full force and effect during the term of this Mortgage, with all premiums paid thereon, and without notice or demand, the following 12 insurance with respect to the Land, the Improvements and the other Mortgaged Property: (i) During construction of the Improvements, Builder's All-Risk or All Perils, Completed Value, Non-Reporting Form Insurance ("Builder's Risk Insurance") reflecting coverage in such amounts as Mortgagee may require, but in no event less than 100% of the full replacement cost of the Mortgaged Property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure or the acquisition of the Mortgaged Property by a deed in lieu thereof, a change in ownership of the Land, the Improvements or any of the Mortgaged Property, a more hazardous use of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by Mortgagor, Lessor, or any Person having an interest therein, provided that the mortgagee pays any premium demanded should the Mortgagor or Lessor fail to do so; the aforesaid mortgage endorsement (which creates a separate agreement between the insurance company and the mortgagee) shall also specifically cover and apply to that portion of the Mortgaged Property constituting Personal Property; (B) a replacement cost endorsement, (C) a stipulated value/agreed amount endorsement, (D) flood insurance, if the Land is in a designated flood plain area, (E) collapse and earthquake coverage, and (F) vandalism and malicious mischief coverage. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. Such policy shall also cover all Mortgaged Property whether on the Land, stored off the Land, or in transit and the transit coverage shall equal or exceed the largest single shipment. In addition, consequential and resulting losses from an insured peril shall also be covered; (ii) Upon completion of construction of the Improvements, All-Risk (Special) Hazard Insurance ("All-Risk Hazard Insurance") reflecting coverage in such amounts as Mortgagee may require, but in no event less than 100% of the full replacement cost of the Mortgaged property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure to the acquisition of the Mortgaged Property by a deed in 1 ieu thereof, a change in ownership of the Land, the Improvements or any of the Mortgaged Property, a more hazardous use of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by the Mortgagor, Lessor, or any Person having an interest therein, provided that the mortgagee pays any premium demanded should the Mortgagor or Lessor fail to do so; the aforesaid mortgage endorsement (which creates a separate agreement between he insurance company and the mortgagee) shall also specifically cover and apply to that portion of the Mortgaged Property constituting Personal property; (B) a replacement cost endorsement, (C) a stipulated value/agreed amount endorsement, (D) boiler explosion coverage, if applicable, (E) sprinkler leakage coverage, if applicable, (F) vandalism and malicious mischief coverage (G) twelve (12) months rent loss and business interruption coverage, and (H) flood insurance, if the Land is in a designated flood plain area. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. In addition, consequential and resulting losses from an insured peril shall also be covered; (iii) General Comprehensive Public Liability Insurance ("Liabil i ty Insurance") against claims for bodily inj ury, death and property damage, occurring in, on, or about the Land, the Improvements or any of the Mortgaged Property, in such amounts as 13 may be required by Mortgagee, but in no event less than $1,000,000 per occurrence for bodily injury and property damage. such policy shall include an additional insured endorsement naming the Mortgagee. The Mortgagor 0 s general cont racto r ( if app 1i cab 1 e) shall also carry the aforesaid insurance coverage; (iv) workers' compensation Insurance ("Worker's compensation") in the statutory amount, naming the Mortgagor as owner of the Mortgaged property: and (v) Insurance in such amounts and against such other casualties and contingencies as required under the Ground Lease and as may from time to time be required by Mortgagee ("other Insurance"). (b) All policies of insurance required hereunder shall: (i) be written by carriers which are licensed or authorized to transact business in the state of Florida, and are rated "A" or higher, Class XII or higher, according to the latest published Best's Key rating Guide and which shall be otherwise acceptable to Mortgagee in all other respects, (ii) provide that the Mortgagee shall receive thirty (30) days' prior written notice from the insurer before a cancellation, modification, material change or non-renewal of the policy becomes effective, material change or non-renewal of the policy becomes effective, (iii) be written with a deductible of not more than $500 and for such amounts as are sufficient to prevent the Mortgagor from becoming a co-insurer thereunder, and (iv) be otherwise satisfactory to Mortgagee. (c) Mortgagor shall not, without the prior written consent of Mortgagee, take out separate insurance concurrent in form or contributing with regard to any insurance coverage required by the Mortgage. (d) At all times during the term of this Mortgage, Mortgagor shall have delivered to Mortgagee the original (or a certified COpy) of all policies of insurance required hereby, together with receipts or other evidence that the premiums therefor have been paid. (e) Not less than thirty (30) days prior to the expiration date of any insurance policY, Mortgagor shall deliver to Mortgagee the original (or certified copy), or the original certificate, as applicable, of each renewal policy, together with receipts or other evidence that the premiums therefor have been paid. (f). The delivery of any insurance policy and any renewals thereof, shall constitute an assignment thereof to Mortgagee, and Mortgagor hereby grants to Mortgagee a security interest in all such policies, in all proceedS thereof and in all unearned premiums therefor. 5.6 ~ax and Insurance EscrowL supplementing the provisions of sections 5.4 and 5.5 hereof, and if an Event of Default shall have occurred including, without limitation, non-payment by Mortgagor of any Imposition or insurance premium as and when required by this Mortgage, Mortgagor shall pay to Mortgagee on the payment date of installments of principal and/or interest as provided in the Note, together with and in addition to such installments of principal and/or interest, an installment of the Impositions and insurance premiums for such insurance is required hereunder, next due, in an amount sufficient as estimated by Mortgagee, to accumulate the sum required to pay such Impositions and insurance premiums, as applicable, thirty (30) days prior to the due date thereof, Amounts held hereunder shall not be, nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, 14 and no interest shall be payable with respect there~o. Upon de~and of Mortgagee, Mortgagor shall deliver to Mortgagee, within ten (10) days after such demand, such additional money as is necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such Impositions and insurance premiums when due. In case of an Event of Default, Mortgagee may apply any amount under this section remaining to Mortgagor's credit to the reduction of the Obligations, at such times and in such manner as Mortgagee shall determine. ' 5.8 Restoration Followinq Casualty. (a) If all or any part of the Improvements or any of the Mortgaged Property shall be damaged or destroyed by a casualty covered by insurance under Section 5.5, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer. Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage; provided, however, that Mortgagee shall not make such proof of loss or settle, adjust or compromise such claim so long as (i) no Event of Default exists, and no condition exists which but for notice would constitute an Event of Default and (ii) Mortgagor shall forthwith make such proof of loss and diligently prosecute the payment of such claim and the settlement, adjustment or compromise thereof and, at Mortgagee's reasonable request, retain legal counsel (acceptable to Mortgagee) to represent Mortgagor in connection with such prosecution, settlement, adjustment or compromise. All proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (inClUding, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds (provided that such amounts shall not be applied to payment of the above expenses prior to Mortgagee's notification to Mortgagor of the expenses incurred by Mortgagee and Mortgagor having been given five (5) days from receipt of such notice to pay such amounts), and second to the restoration, repair or replacement of the Improvements and the other mortgaged Prop~rty damaged or destroyed. Such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently, regardless of whether there' shall be sufficient insurance proceeds therefor, restore, repair and rebuild the Improvements and the other mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. Mortgagee's disbursement of the insurance proceeds to Mortgagor for such restoration, repair or replacement shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or any of the Improvements or the other Mortgaged property shall be damaged or destroyed by a casualty not covered by insurance under Section 5. 5, or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expenses, restore, repair and' rebuild the Improvements and the other Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (c) If any restoration, repair, or replacement shall 15 involve an estimated expenditure of more than $25,000.00, no such restoration, repair, or replacement shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee have been submitted to and approved by Mortgagee. 5.9 Condemnation. (a) Mortgagor shall immediately notify Mortgagee upon obtaining any knowledge of the institution of any proceedings for the condemnation (which term when used in this Mortgage shall include any damage or taking by any Governmental authority and any transfer by private sale in lieu thereof, either temporarily or permanently) of the Land, the Improvements or any of the Mortgaged Property or any part thereof. (b) The Mortgagee shall be entitled to all condemnation awards, compensation and other payments (collectively the "Condemnation Awards") due Mortgagor in accordance with the terms of the Ground Lease and Mortgagee is hereby authorized, at its option, to commence, appear in and prosecute, in its own or in Mortgagor's name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith; provided, however, that Mortgagee shall not commence or prosecute such action or proceeding or settle or compromise such claim so long as (i) no Event of Default exists, and no condition exists which but for notice would constitute an Event of Default and (ii) Mortgagor shall retain legal counsel, reasonably acceptable to Mortgagee, to represent Mortgagor in connection with such condemnation and shall timely commence and diligently prosecute any action, proceeding, settlement and compromise in connection therewith. All such Condemnation Awards, damages, claims rights of action and proceedings and the right thereto are hereby. assigned by Mortgagor to Mortgagee and shall be applied first" to the payment of all costs and expenses (including, without limitation, reasonable attorneys fees and expenses) incurred by Mortgclgee in connection with any action or proceeding under this Sectic)n 5.9 (provided that such amounts shall not be applied to payment of the above expenses prior to Mortgagee's notification to Mortgclgor of the expenses incurred by Mortgagy and Mortgagor having been given five (5) days from receipt of such notice to pay such amounts), and second, (i) in the event of a total or substantial taking (as described in Subsection 5.9 (c) below) to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or (ii) in the event of a partial taking (as descri.bed in Subsection 5.9 (d) below) to the restoration, repair or al teraltion of the Land, the Improvements and the other Mortgaged Property as provided in Subsection 5.9(d). . (c) If all or "substantially all of the Premises" (as said term is defined in the Ground lease) shall be damaged or taken through condemnation, Mortgagee at its option may declare all of the unpaid Obligations to be immediately due and payable, and upon ten (10) days written notice from Mortgagee to Borrower all such Obligations shall immediately become due and payable as fully and to the same extent as if such date were the date originally specified for the final payment or maturity thereof. Cd) If less than substantially all of the Premises should be damaged or taken through condemnation, the Condemnation Awards shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall I>romptly and diligently regardless of whether there shall be sufficient Condemnation Awards therefor restore, repair and alter the La11d, the Improvements and the other Mortgaged Property in a manner satisfactory to Mortgagee. During the period of restoration, repair and alteration, the Borrower shall continue to duly and 16 pronptly pay, periorn, observe and comply with all of the Obligations. Mortgagee's disbursement of the Condemnation Awards to Mortgagor upon such restoration, repair or alteration shall not affect the lien of this Mortgage or affect or reduce the Obligations. If any such restoration, repair or alteration shall involve an estimated expenditure of more than $25,000.00, same shall not be commenced until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee. 5.10 Inspection. Mortgagor shall permit Mortgagee and its agents to inspect the Land, Improvements and the other Mortgaged Property at any time during normal business hours and at all other reasonable times. 5.11 Contest of Tax Assessments. Etc. After prior written notice to Mortgagee, Mortgagor, at it sown expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of (a) any of the Governmental Requirements referred to in Section 5.3, or (b) any Imposition; provided that: (i) in the case of any unpaid Imposition, such proceedings shall suspend the collection thereof from Mortgagor the lessor, the Land, the Improvements and the other Mortgaged Property, (ii) the Land, the Improvements and the other Mortgaged Property or any part thereof will not be in danger of being sold, forfeited, terminated, canceled or lost (iii) the use of the Land, the Improvements and the other Mortgaged Property or any part thereof for its present or future intended purpose or purposes will not be interrupted, lost or terminated, (iv) Mortgagor shall have set aside adequate reserves with respect thereto, and (v) Mortgagor shall have furnished such security as may be required in the proceedings or as may be reasonably requested by Mortgagee. 5.12 Expenses. (a) Borrower shall pay all costs and expenses in connection with the Loan and the preparation, execution, and delivery of the Loan Documents including, but not limited to, fees and disbursements of counsel, appointed by Mortgagee, and all recording costs and expenses, documentary stamp tax and intangible tax on the entire amount of funds disbursed under the Loan, and other taxes, surveys, appraisals, premiums for policies of title and other insurance and all other fees, costs and expenses, if any, set forth in the Commitment, the Loan Agreement, or otherwise, in connection with the Loan Transaction. (b) Mortgagor shall payor reimburse Mortgagee for all costs, charges, expenses, and reasonable attorneys' fees paid or incurred by Mortgagee pursuant to this Mortgage including but not limited to those costs, charges, expenses and fees paid or incurred for the payment of the Impositions, insurance, completion of construction, repairs, or in any action, proceeding or dispute of any kind in which Mortgagee is a party because of any Obligation not being duly and promptly performed or being violated, inClUding, but not limited to, the foreclosure or other enforcement of this Mortgage, any condemnation or eminent domain action involving the Land, the Improvements or any of the Mortgaged Property or any part thereof, any action to protect the security hereof, or any proceeding in probate, reorganization, bankruptcy, or forfeiture in rem. All such amounts paid or incurred by Mortgagee, together with interest thereon at the Default Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately, whether or not there be notice or demand therefor. (c) Any reference in this Mortgage to attorneys' or 17 counse is I ~ c,~s pa id or incu~ red by :'rort'J~g.,; = sha 11 be deci.',ed too include paralegal's fees and legal assistants' fees. Moreover, wherever prevision is made herein for payment of attorneys' or counsels' fees or expenses incurred by the Mortgagee, said provision shall include, but not limited to, such fees or expenses incurred in any and all judicial, bankruptcy, reorganization administrative, or other proceedings, including appellate proceedings, whether such fees or expenses arise before proceedings are commenced or after entry of a final judgment. 5.13 Performance of the Commitment. The Obligations of the Mortgagor and Borrower under the Commitment shall sure the execution and delivery of this Mortgage and all other loan documents and Mortgagor and Borrower shall timely comply with, abide by and perform all the Obligations of the Commitment on their part to be complied with, abided by and performed. 5.14 Preservation of Agreements. Mortgagor shall preserve and keep in full force and effect, or cause to be preserved and kept in full force and effect, all agreements, approvals, permits and licenses necessary for the development, use and operation of the Land, the Improvements and the other Mortgaged Property for its intended purpose or purposes. 5.15 Books and Records. The Mortgagor shall keep and maintain, at all times, full, true and accurate books of accounts and records, adequate to correctly reflect the results of the operation of the Mortgaged Property. 5.16 Estoppel Affidavits. Borrower, within ten (10) days after written request from Mortgagee, shall furnish a written statement, duly acknowledged, setting forth the unpaid principal and interest balance of the Obligations secured by this Mortgage, and whether or not any off-sets or defenses exist thereto. 5.17 Indemnification. (a) Borrower shall at its own expense, and does hereby agree to, protect, indemnify, defend and hold Mortgagee and its directors, officers, agents, employees and attorneys harmless from and against any and all liability, loss, expense, suits, proceedings, claims, demands, or damages of any kind or nature (including attorneys' fees and expenses paid or incurred in connection therewith) arising out of or by reason of (i) an incorrect legal description of the Land, (ii) any action, or inaction of Mortgagee in connection with the Note, this Mortgage, the other Loan Documents or the mortgaged Property (iii) the construction of the Improvements, (iv) the use and operation of the Land, the Improvements and the other Mortgaged Property, or (v) the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, or release from the Land, the Improvements or any of the Mortgaged Property (or any part thereof) 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 the Comprehensive Environmental Response, Compensation and Lability Act, any so-called federal, state or local "superfund" or "Superlien" laws, statutes, ordinances, codes, rules, regulations, order or decrees regulation, without respect to, or imposing liability, including strict liability, in connection with any hazardous Substance or standards of conduct concerning any hazardous SUbstance, regardless of whether within the control of Mortgagee, so long as the act or omission in question occurs prior to the sale of the Mortgaged Property and complete dispossession of Mortgagor therefrom. 18 (b) The indemnifications of this Section 5.17 sha2.~ survive the full payment and performance of the Obligations and the satisfaction of this Mortgage. 5.18 Borrower to Furnish Financial statements. Borrower shall annually, until all the Obligations have been fully paid and performed, furnish Mortgagee with financial statements of Mortgagor, Borrower and each Guarantor, prepared by an accountant satisfactory to Mortgagee, all in such detail as Mortgagee may reasonably require and certified by the Borrower as being true and correct. Such statements shall be furnished not later than ninety (90) days after the end of Borrower's fiscal year. Failure to furnish such statements shall be an Event of Default under Article VII of this Mortgage. 5.19 Further Assurances. Mortgagor, at its sole expense, upon the request of Mortgagee, shall execute, acknowledge and deliver such further instruments and do such further acts as may, in the opinion of the Mortgagee, be necessary, desirable or proper to carry out more effectively the purpose of this Mortgage and to subj ect to the 1 ien hereof any property intended by the terms hereof to be covered hereby, including, without limitation, any proceeds, renewals additions, substitutions, replacements, products, betterment, accessions and appurtenances thereto and thereof. 5.20 Financing Statements. Mortgagor shall execute and deliver to Mortgagee, in form and substance satisfactory to Mortgagee, such financing statements, continuation statements, and such further assurances as Mortgagee may from time to time consider reasonably necessary to create, perfect, preserve and maintain in full force and effect Mortgagee's lien upon the fixtures, Subleases, Rents and Personal Property; and, Mortgagee, at the expense of Mortgagor and/or Borrower, may cause such statements and assurances to be recorded and rerecorded, filed and refiled, in the name of Mortgagor, and Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-act, which appointment is coupled with an interest, with full power of substitution, and empowers said attorney and atto~neys in the name of Mortgagor, but at the option of said attorney-in-fact, to execute and file any and all financing statements. 5.21 Withholding Taxes. (a) If under any applicable law or regulation or the interpretation thereof by any Governmental Authority charged with the administration thereof Borrower shall be required to make any withholding or deduction from any payment of the Obligations (whether of principal interest or otherwise) to be made by or on behalf of Borrower to Mortgagee for or in respect to any present or future taxes, levies, imposts, duties, charges, or fees of any nature (excepting only Mortgagee's income taxes of the United states of America and its political Subdivisions), the amount due to Mortgagee from Borrower in respect of such payment shall be increased to the extent necessary to ensure that after making such withhOlding or deduction and any withholdings or deductions required to be made in respect to any such increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have received had no such withholding or deduction been required to be made. In the event of such withholding or deduction, Borrower shall deliver to Mortgagee official documentation evidencing the payment of the amount so withheld or deducted. (b) If Borrower shall fail to make any withholding or deduction so required to be made, Mortgagee reserves the right to make payment thereof to the appropriate Governmental Authority. If Mortgagee makes such payment under any applicable law or regulation 19 or if as a res~lt of the interpretation thereof by any Govern~ental Authority charged with the administration thereof in respect of any such payment, whether of principal, interest or otherwise made or to be made by Mortgagee, Borrower shall be required to pay any tax, levy impost, duty, charge or fee of any nature (excepting only Mortgagee's income taxes of the united states of America and its political subdivisions), Mortgagor shall and does hereby indemnify Mortgagee against and shall forthwith upon demand of Mortgagee pay to Mortgagee the amount of such payment, together with any interest, penalties, and expenses in connection therewith, and interest thereon at the Default Rate; and in the event any of the aforesaid amounts, interest, penalties or expenses shall be subject to withholding or deduction, the amount thereof shall be increased to the extent necessary to ensure that after making such withholding or deduction and any withholdings or deductions in respect of any such increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have received had no such withholding or deduction been required to be made. (c) Any increased amount required to be paid by Borrower in accordance with the provisions of this section 5.23 shall have the same character as the amount in respect of which such increased amount is determined, but shall not (i) if characterized as principal to be applied in reduction of the principal amount outstanding under the Obligations or (ii) if characterized as interest, to be applied in reduction of accrued, unpaid interest under the Obligations. , 5.22 Hazardous Substances. (a) If Mortgagor receives (i) any notice of the happening of any event involving the spillage, release, leakage, seepage discharge or cleanup of any Hazardous Substance on the Land, the Improvements or any of the Mortgaged Property or in connection with Mortgagor's operations thereon or (ii) from any Person or Governmental Authority (inclUding, without limitation the EPA) any complaint, order, citation or notice with regard to air emissions, water discharges, or any other environmental, health or safety matter (collectively and individually and "Environmental Complaint") affecting Mortgagor, Lessor, the Land, the Improvements or any of the Mortgaged Property (or any part thereof), the Mortgagor shall immediately notify Mortgagee orally and in writing of such Environmental Complaint. (b) Mortgagee shall have the right but not the obligation, and without any limitation of Mortgagee's other rights under this Mortgage, to enter onto the Land and the Improvements or to take such other actions as it deems necessary or advisable to cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any hazardous Substance or any Environmental Complaint following receipt o~ any notice from any Person or Governmental Authority (including, without limitation, the EPA) asserting the existence of any Hazardous Substance or an Environmental Complaint pertaining to the Land, the Improvements or any of the Mortgaged property or any part thereof which, if true, could result in an order, suit or other action against Mortgagor or Mortgagee which in the sole opinion of Mortgagee, could jeopardize Mortgagee's security under this Mortgage. All costs and expenses incurred by Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be payable by Borrower upon demand. (c) Mortgagee shall have the right, in its sole discretion, to require Mortgagor to periodically ,perform an environmental audit of the Land, the Improvements and the other Mortgaged Property (but not more frequently than annually unless an Environmental Complaint is then outstanding) and, if deemed necessary by Mortgagee, an environmental risk assessment of the 20 L3r.d, che Inprovernents and the other Mortgaged Property including Hazardous Substances waste management practices and Hazardous Substances ~aste disposal sites thereon. All environmental audits and environmental risk assessments shall be at Mortgagor's expense, shall be performed and prepared by an environmental consultant satisfactory to Mortgagee and shall otherwise be in form and substance satisfactory to Mortgagee. Should Mortgagor fail to provide such environmental audit or environmental risk assessment within thirty (30) days of the Mortgagee's written request, Mortgagee shall have the right, but not the obligation to retain an environmental consultant to perform and prepare same. All costs and expenses incurred by Mortgagee in the exercise of such rights shall be secured by this Mortgage and shall be payable by Borrower upon demand or charged to Mortgagor's loan balance at the discretion of Mortgagee. 5.23 Performance of Other Agreements. Mortgagor shall duly and punctually perform all covenants, terms and agreements expressed as binding upon it under any Permitted Title Exception, or any other agreement of any nature whatsoever binding upon it with respect to the Land, the Improvements or any of the Mortgaged Property. 5.24 Ground Lease. (a) Mortgagor shall (i) duly and punctually observe, perform and discharge, or cause to be observed, performed and diSCharged, all of the obligations and undertakings of Mortgagor or its agents under the Ground Lease; (ii) use its best efforts to enforce or secure, or cause to be enforced or secured, the due and punctual performance of each and every obligation and undertaking of the Lessor under the Ground lease; (iii) promptly notify Mortgagee in writing upon receipt by Mortgagor of any notice that Mortgagor is in default (the "Default Notice") under the Ground Lease or that an event has occurred which with due notice or the lapse of time, or both, would constitute a default under the Ground lease, and to promptly cause a copy of each such Default Notice given by the Lessor thereunder to be delivered to Mortgagee; upon receipt by Mortgagee of such Default notice, Mortgagee may rely thereon in proceeding to effect a cure of the default described in such Default notice given through the existence of such default or the nature thereof may be questioned or denied by Mortgagor or by any party on behalf of Mortgagor; and (iv) from time to time upon demand of Mortgagee submit evidence to Mortgagee that Mortgagor has maintained and is maintaining the Ground Lease in good standing. (b) If Mortgagor fails to observe, perform, or discharge any obligation or undertaking of Mortgagor under the Ground Lease, then Mortgagee may on behalf of Mortgagor, but without obligation to do so and without notice to and demand upon Mortgagor, and without releasing Mortgagor or Borrower from any Obligation and without waiving any Event of Default hereunder, take any action Mortgagee deems necessary or desirable to prevent or cure any such default by Mortgagor, including, but without limitation, the right to pay any and all rental payments, insurance premiums, taxes and assessments and other sums due or to become due under the Ground Lease. Mortgagor hereby expressly grants to Mortgagee and agrees that Mortgagee and its agents shall have the absolute and immediate right to enter upon the Land and the Improvements or any part thereof to such extent and as often as Mortgagee in its sole discretion deems necessary or desirable in order to prevent or cure any such default by Mortgagor. All payments and all costs and expenses incurred by Mortgagee in connection with any such prevention or cure (inClUding, without limitation, reasonable attorneys' fees and expenses), together with an interest thereon at the Default Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and shall be due and payable by Mortgagor 21 im~ediately, whether or Dot there be notice, denand, an atte~pt to collect same, or suit pending. To further effectuate Mortgagee's rights under this Subsection 5.26 (b) , Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an interest, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney in fact to perform and discharge any and all obligations and undertakings of Mortgagor under the Ground Lease. ARTICLE VI NEGATIVE COVENANTS 6.1 Use Violations. Etc. Mortgagor shall not use the Land, the Improvements or any of the Mortgaged Property or allow the same to be used or occupied for any unlawful purpose or in violation of any Governmental Requirement or restrictive covenant covering, affecting or applying to the ownership, use or occupancy thereof, commit or permit or suffer any act to be done or any condition to exist on the Land, the Improvements or any of Mortgaged Property or any article to be brought thereon that may be dangerous, or that may in any way increase any ordinary fire or other hazard, unless safeguarded as required by law or that may, in law, constitute a nuisance, public or private. 6.2 Care of the Mortgaged Property. (a) Mortgagor shall not commit or permit any waste impairment, or deterioration of the Land,t he Improvements or any of the Mortgaged Property, or (except as may be provided for in the Loan Agreement) perform any clearing, grading, filling or excavation thereof, or make or permit to be made any alterations or additions thereto that would have the effect of materially diminishing the value thereof (in Mortgagee's sole opinion) or take or permit any action that will in any way increase any ordinary fire or other hazard arising out of the construction or operation thereof. (b) Mortgagor shall not, without the prior written consent of Mortgagee, remove, demolish or substantially alter, or permit the removal, demolishment or substantial alteration of, any Improvements on the Land except as contemplated by the terms of the Loan Documents and as set forth in the plans previously provided to Mortgagee. In the event such consent is given and if any work to be performed shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, shall have been submitted to and approved by Mortgagee. (c) Mortgagor shall not permit any of the Fixtures or Personal Property to be demolished or to be removed from the Land and Improvements without the prior written consent of Mortgagee. In the event such consent is given, the Mortgagee may require that said Fixture or Personal Property be replaced by an article of equal suitability and value, owned by Mortgagor free and clear of any vendor's lien, chattel mortgage, or security interest of any kind, except such as may be approved in writing by Mortgagee, and that such replacement article be encumbered by the lien of this Mortgage. Notwithstanding the foregoing, the Mortgagor may remove or demolish any Fixture or Personal Property without first obtaining the Mortgagee's prior written consent provided (i) the value of such article does not exceed in value at the time of disposition thereof $10,000.00 for any single item, or a total of $25,000.00 in anyone year for all such items and (ii) that said article is replaced and subject to the lien of this Mortgage as 22 aforesaid. 6.3 other Liens and Mortgaqes. (a) Mortgagor shall not, without the prior written consent of Mortgagee create or permit to be created or to remain, any mortgage, pledge, mechanics' lien or other lien, condition sale or other title retention agreement, encumbrance, claim, or charge on (whether prior to subordinate to the lien of this mortgage or the other Loan Documents) the Mortgaged Property or income therefrom, other than this Mortgage, the other Loan Documents and the Permitted Titre Exceptions. Any transaction prohibited under this section shall be null and void. (b) Mortgagor shall not, without the prior written consent of Mortgagee, (i) enter any agreement either oral or in writing, whereby any permitted Junior Mortgage is modified or amended in any manner whatsoever, (ii) permit the release of any guarantor or modification of any guaranty affecting any permitted Junior Mortgage, or (iii) incur any additional indebtedness secured thereby. (c) Mortgagor shall not directly or indirectly, take, acquire, or permit to be taken or acquired by any other party, any interest whatsoever in any permitted Junior Mortgage without the prior written consent of Mortgagee. 6.4 Transfer of Mortgaqed Property. Except for Subleases, Mortgagor shall not sell, convey, or transfer or permit to be sold, conveyed or transferred any interest in the Mortgaged Property or any part thereof. A contract to deed or agreement for deed, or an assignment, pledge, or encumbrance of a beneficial interest, in any land trust, or a lease for all or substantially all of the Land or Improvements shall constitute a transfer prohibited by the provisions of this section and shall be null and void. 6.5 Change in OwnershiD of Mortgaqor. Mortgagor shall not, without the prior written consent of Mortgagee, do or permit any other Person to do any of the following: (a) traqsfer, directly or indirectly, in the aggregate 25' or more of the issued and outstanding stock in Mortgagor, as of the date hereof, or (b) issue any additional stock to any shareholder in Mortgagor, after the date hereof. Any transfer descried above shall be deemed to have occurred where such purported transfer shall be (i) a direct transfer, sale, or conveyance by a stockholder, (ii) the result of an encumbrance or pledge of such stock, or (iii) the result of action by any Person against such stockholder. 6.6 Loans to stockholders or Partners. Mortgagor and Borrower shall not make loans directly or indirectly to any Guarantor, or to any stockholder, partner, corporate affiliate, or any other Person directly or indirectly related to Mortgagor. 6.7 Mortgagor's and Borrower' s Articles of Incorporation Agreement. Mortgagor and Borrower shall not, without the prior written consent of Mortgagee, materially amend or modify their respective articles of incorporation. 6.8 Environmental contamination/Hazardous Substances. Mortgagor shall not permit or cause the Land, the Improvements or any of the Mortgaged Property to be used for the handling, storage, transportation, or disposal of Hazardous Substances except in full compliance with applicable Governmental Requirements. 6.9 Ground Lease. Mortgagor shall not (a) amend, modify, extend, or in any way alter the terms of the Ground Lease or cancel, terminate, or surrender the Ground Lease; and Mortgagor 23 does hereby expressly release, relinquish and surrender u~tc Mortgagee all of the Mortgagor's right, power and authority to amend, modify, extend or alter any of the terms or provisions of the Ground Lease or to cancel, terminate or surrender the Ground Lease, and any attempt on the part of Mortgagor to exercise any such right without the prior written consent of Mortgagee shall be null and void ab initio and shall be of no force and effect; (b) in any way release or discharge the Lessor from duly and punctually performing any of Lessor's obligations or undertakings under the Ground Lease; or (c) do or permit anything to be done, the doing of which, will impair or tend to impair the security of this Mortgage or will be grounds for terminating or declaring a forfeiture of the Ground Lease. ARTICLB VII EVENTS OF DEFAULT 7.1 Events of Default. An "Event of Default" as used in this Mortgage, shall occur at any time or from time to time: (a) Failure to Pay. If any Obligation or any installment thereof is not paid as and when due and payable taking into account all applicable grace periods given Mortgagor by Mortgagee; (b) Failure to Perform. If any Obligation (other than an Obligation requiring the payment of money for which a grace period is otherwise provided for elsewhere in the Loan Documents of the occurrence of an ,event described in Subsections 7.l(c) through 7.l(p), inclusive, below) is not duly and promptly performed or is violated, and such non-performance or violation is not curable, or if curable continues for a period of thirty (30) days after written notice thereof fro. Mortgagee to Mortgagor or Borrower, provided, however, if such non-performance or violation may not reasonably be cured within such thirty (30) day period, an Event of Default shall not be deemed to have occurred so long as Mortgagor or Borrower shall be diligently and continuously endeavoring to cure same and such cure shall actually be effected within a reasonable length of time; (c) False Representation. warranty made in the Ground Lease or in behal f of Mortgagor, Borrower or any false, misleading, or breached; (d) Judgment. If a final judgment for the payment of money is rendered against Mortgagor, Borrower or any Guarantor, and the same remains unsatisfied except for such period of time as execution on the judgment is effectively stayed (provided however, that if as to any such final judgment, payment or performance is bonded or otherwise guaranteed, then a condition of default shall not be deemed to exist); If any representation or any Loan Document by or on Guarantor is at any time (e) Voluntary BankruDtCY, Etc. If Mortgagor, Borrower or any Guarantor (i) is voluntarily adjudicated a bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver or trustee for itself or for all or any part of its property, (ii) a files a petition seeking relief, including reorganization, arrangement or similar relief, under the present Bankruptcy Code or other similar present or future applicable laws of the United states or any state or any other competent jurisdiction, (iv) makes a general assignment for the benefit of credits or (v) admits in writing its inability to pay its debts as they mature; ( f) Involuntary Bankruptcy. Etc. If a receiver or 24 trustee is ~ppointed for Mortgagor, Borrower or any Guarantor or for all or any part of their respective properties without their respective consents and such appointment is not vacated within sixty (60) days, or if a petition is filed against Mortgagor, Borrower or any Guarantor seeking relief, including reorganization, arrangement or similar reI ief, under the present Bankruptcy Code or other similar present or future applicable laws of the United States or any state or other competent jurisdiction, and such petition is not dismissed within sixty (60) days after the filing thereof; (g) Dissolution. If Mortgagor or Borrower voluntarily or involuntarily dissolves or liquidates; (h) Default by Guarantor. If any Guarantor fails to duly payor perform any covenant, term, provision, or condition of the Guaranty; (i) Foreclosure of Other Liens. If the holder of any mortgage or other lien on the Mortgaged Property, whether a Permitted Title Exception or not (without hereby implying Mortgagee's consent to any such mortgage or other lien) institutes a foreclosure or other proceedings for the enforcement of any of its remedies thereunder; (j) Default under Junior Mortgage. If any default or any event of default occurs under any permitted Junior Mortgage, whether or not foreclosure or other proceedings have been instituted thereunder; (k) Ground Lease. If any default or event of default occurs under the Ground Lease, or if Mortgagor fails to give Mortgagee notice within five (5) days of any default under the Ground lease, or if Mortgagor fails to furnish to Mortgagee within five (5) days any and all information which Mortgagee may reasonably request concerning the performance by Mortgagor of its obligations and undertaking under the Ground Lease, or if Mortgagor fails to permit Mortgagee or Mortgagee's agents at all reasonable times to investigate or examine Mortgagor's performance under the Ground Lease, or if Mortgagor fails to permit Mortgagee from curing any default of Mortgagor under the Ground Lease; (1) Confirmatory Agreement. If Mortgagor fails to duly and punctually perform any of its obligations to Mortgagee as provided in the Confirmatory Agreement, if any; or ARTICLB VIII RIGHTS AND REMEDIES. 8.1 Remedies. If an Event of Default shall have occurred, Mortgagee may, at its option, exercise any, some or all of the following remedies, concurrently or consecutively. (a) Acceleration. Mortgagee may declare all of the unpaid Obligations, together with all accrued interest thereon, to be due and payable without notice or demand which are hereby expressly waived, and upon such declaration all such Obligations shall immediately become due and payable as fully and to the same effect as if the date of such declaration were the date originally specified for the full payment or maturity thereof. (b) Mortgagee's Right to Enter and Take Possession, Operate and Apply Income. 25 (i) Mortgagee may demand that Mortgagor surrender the actual possession of the Mortgaged property and upon such demand, Mortg~gor shall forthwith surrender same to Mortgagee and, to the extent permitted by law, Mortgagee i tsel f, or by such officers or agents as it may appoint, may enter and take possession of all of the Mortgaged property and may exclude Mortgagor and its agents and employees wholly therefrom. (ii) If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or order conferring on Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession to Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. (iii) Mortgagee may from time to time: (A) continue and complete construction of, hold, store, use, operate, manage and control the Mortgaged property and conduct the business thereof, (B) make all reasonably necessary maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional Fixtures and personal property: (C) insure or keep the Mortgaged property insured: (D) exercise all the rights and powers of the Mortgagor in its name or otherwise with respect to the same: and (E) enter into agreements with others (including without limitation, a new ground lease, new subleases, or amendments, extensions, or cancellations to existing subleases) all as Mortgagee from time to time may determine in its sole discretion. Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney in fact which appointment is coupled with an interest, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney in fact, to do any and all acts and execute any and all agreements that Mortgagee may deem necessary or property to implement and perform any and all of the foregoing. (iv) The Mortgagee may, with or without taking possession of the Mortgaged property as hereinabove provided, collect and receive all the Rents therefrom, including those past due as well as those accruing thereafter, and shall apply the monies so received first, to the payment of all costs and expenses (inCluding, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee and its agents in connection with the collection of same, whether or not in possession of the Mortgaged property, and second, in such order as Mortgagee may elect, to the payment of the Obligations. (i) If any installment or part of any Obligation shall fail to be paid when due, Mortgagee shall be entitled to sue for and to recover judgment against the Borrower for the amount so due and unpaid together with all costs and expenses (inclUding, without limitation reasonable attorneys' fees and expenses) incurred by Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate as of the date incurred by Mortgagee. All such costs and expenses shall be secured by this Mortgage and shall be due and payable by Borrower immediately. (ii) If Borrower shall fail to pay upon the Mortgagee's demand, after acceleration as provided in subsection 8.1(a), all of the unpaid Obligations, together with all accrued interest thereon, Mortgagee shall be entitled to sue for and to recover judgment against the Borrower for the entire amount so due and unpaid together with all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by (c) rroceedinas to Recover Sums Due. 26 Mortgagee in connection ~l~n 3~ch proceeding, together ~i:h interest thereon at the Default Rate from the date incurred by Mortgagee. All such costs and ~^pen5as shall be secured by this Mortgage and shall be payable by 9~~rower immediately. Mortgagee's right under this Sub-section (ii) may be exercised by Mortgagee either before, after or during the pendency of any proceedings for the enforcement of the Obligations and this Mortgage, including appellate proceedings. (iii) No recovery of any judgment as provided in Subsections (i) and (ii) above and no attachment or levy of any execution upon any of the Mortgaged Property or any other property shall in any way affect the lien of this Mortgage upon the Mortgaged Property or any part thereof, or any lien, rights, powers and remedies shall continue unimpaired as before. d. Foreclosure. (i) Mortgagee may institute proceedings for the partial or complete foreclosure of this Mortgage and Mortgagee may, pursuant to any final judgment of foreclosure, sell the Mortgaged Property as an entirety or in separate lots, units, or parcels. (ii) In case of a foreclosure sale of all or any part of the Mortgaged Property, the proceeds of sale shall be applied in accordance with section 8.8 hereof, and the Mortgagee shall be entitled to seek a deficiency judgment against the Borrower to enforce payment of any and all obligations then remaining due and unpaid, together with interest thereon, and to recover a judgment against the Borrower therefor. (iii) The Mortgagee is authorized to foreclose this Mortgage subject to the rights of any subtenants of the Mortgaged Property or Mortgagee may elect which subtenants Mortgagee desires to name as parties defendant in such foreclosure and failure to make any such subtenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be asserted by the Mortgagor or Borrower to be a defense to any proceedings instituted by the Mortgagee to collect the unpaid ~bligations or to collect any deficiency remaining unpaid after the foreclosure sale of the Mortgaged Property. (e) Receiver. Mortgagee may apply to any court of competent jurisdiction to have a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the Rents therefrom and apply the same as the court may direct, such receiver to have all of the rights and powers permitted under the laws of the state of Florida. The right of the appointment of such receiver shall be a matter of strict right without regard to the value or the occupancy of the Mortgaged Property or the solvency or insolvency of Borrower. The expenses, including receiver's fees, attorneys' fees, costs and agent's commi$sion incurred pursuant to the powers herein contained, together with interest thereon at the Default Rate, shall be secured hereby and shall be due and payable by Borrower immediately without notice or demand. Notwithstanding the appointment of any receiver or other custodian, Mortgagee shall be entitled as pledgee to the possession and control of any such deposits at the time held by, payable, or deliverable under the terms of this Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the unpaid Obligations against any such cash or deposits, in such order as Mortgagee may elect. (f) Remedies as to Personal Property. Mortgagee may exercise any or all of its rights and remedies under the Uniform Commercial Code-Secured Transactions as adopted by the state of Florida or other applicable law as well as all other rights and remedies possessed by Mortgagee, all of which shall be cumulative. 27 ~ortgagee 1S ~~reby duthorized and e~powered to enter the Land 3n~ Improvements or other place where the Personal Property may be located without legal process, and to take possession of the Personal Property without notice or demand, which hereby are waived to the maximum extent permitted by the laws of the state of Florida. Upon demand by Mortgagee, Mortgagor shall make the Personal Property available to Mortgagee at a place reasonably convenient to Mortgagee. Mortgagee may sell at one or more public or private sales and for such price as Mortgagee may deem commercially reasonable, any and all of the Personal Property secured by this Mortgage, and any other security or property held by Mortgagee and Mortgagee may be the Purchaser of any or all of the Personal Property. (g) Other. Mortgagee may institute and maintain any suits and proceedings as the Mortgagee may deem advisable (i) to prevent any impairment of the Mortgaged Property by any acts which may be unlawful or in violation of this Mortgage, (ii) to preserve or protect its interest in the Mortgaged Property, and (iii) to restrain the enforcement of or compliance with any Governmental Requirement that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such Governmental Requirement might impair the security hereunder or be prejudicial to the Mortgagee's interest. 8.2 Remedies CUmulative and Concurrent. No right, power or remedy of Mortgagee as provided in the Note, this Mortgage, the Guaranty, or the other Loan Documents is intended to be exclusive of any other right, power, or remedy of Mortgagee, but each and every such right power and remedy shall be cumulative and concurrent and in addition to any other right, power or remedy available to Mortgagee now or hereafter existing at law or in equity ,and may be pursued separately, successively or together against Mortgagor, Borrower, any Guarantor, or any endorser, co- maker, surety or guarantor of the Obligations, or the Mortgaged Property or any part thereof, or anyone or more of them, at the sole discretion of Mortgagee. The failure of Mortgagee to exercise any such right, power or remedy shall in no event be construed as a waiver or release thereof. 8.3 Waiver, Delay or Omission. No waiver of any Event of Default hereunder shall extend to or affect any subsequent or any other Event of Default then existing, or impair any rights, powers or remedies consequent thereon, and no delay or omission of Mortgagee to exercise any right, power or remedy shall be construed to be a waiver of any such Event of Default or to constitute acquiescence thereto. 8.4 Credit of Mortgagee. To the maximum extent permitted by the Laws of the state of Florida, upon any sale made under or by virtue of this Article, Mortgagee may bid for and acquire the Mortgaged Property, or any part thereof, and in lieu of paying cash therefor may apply to the purchase price, any portion of or all of the unpaid Obligations in such order as Mortgagee may elect. 8.5 Sale. Any sale or sales made under or by virtue of this Article shall operate to divest all the estate, right, title interest, claim and demand whatsoever at law or in equity, of the Mortgagor and all Persona, except subtenants pursuant to Subleases approved by Mortgagee, claiming by, through or under Mortgagor in and to the properties and rights so sold, whether sold to Mortgagee or to others. 8.6 Proof of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, seizure of the Mortgaged Property by any Governmental Authority, or other judicial proceedings affecting the Mortgagor, 28 Borrower, any Guarantor, any endorser, co-maker, surety or guarantor of the Obligations, or any of their respective properties, the Mc~tgagee, to the extent permitted by Law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have its claim allowed in such proceedings for the entire unpaid Obligations at the date of the institution of such proceedings, and for any additional amounts which may become due and payable after such date. 8.7 Waiver of Redemption. Notice. Marshalling, etc. Mortgagor and Borrower hereby waive and release, for themselves and anyone claiming through, by, or under each of them, to the maximum extent permitted by the laws of the state of Florida: (a) all benefit that might accrue to Mortgagor by virtue of any present or future law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof from attachment, levy or sale on execution, or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment. (b) unless specifically required herein, all notices of default, or Mortgagee's actual exercise of any option or remedy under the Loan Documents, or otherwise, and (c) any right to have the Mortgaged Property marshalled. 8.8 Application of Proceeds. The proceeds of any sale of all or any portion of the Mortgaged Property shall be applied by Mortgagee first, to the payment of receiver's fees and expenses, if any, and to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee together with interest thereon at the Default Rate from the date so incurred, in connection with any entry, action, or proceeding under this Article and, second, in such order as Mortgagee may elect, to the payment of the Obligations. Mortgagor shall be and remain liable to Mortgagee for any difference between the net proceeds of sale and the amount of the Obligations until all of the Obligations have been paid in full. 8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded to enforce any right under any Loan Document and such proceedings shall have been discontinued or abandoned for any reason, then except as may be provided in any written agreement between Mortgagor and Mortgagee providing for the discontinuance or abandonment of such proceedings, Mortgagor and Mortgagee shall be restored to their former positions and the rights, remedies and powers of Mortgagee shall continue as if no such proceedings had been instituted. 8.10 Mortgagee's Actions. Mortgagee may, at any time without notice to any Person and without consideration, do or refrain from doing any or all of the following actions, and neither the Mortgagor, Borrower, any Guarantor, any endorser, co-maker, surety or guarantor of the Obligations, nor any other Person (hereinafter in this Section 8.10 collectively referred to as the "Obligor") now or hereafter liable for the payment and performance of the Obligations shall be relieved from the payment and performance thereof, unless specifically released in writing by Mortgagee: (a) renew, extend or modify the terms of the Note, this Mortgage, the Guaranty and the other Loan Documents, or any of them; (b) forbear or extend the time for the payment or performance of any or all of the Obligations; (c) apply payments by any Obligor to the reduction of the unpaid Obligations in such manner, in such amounts, and at such times and in such order and priority as Mortgagee may see first (d) release any Obligor; (e) substitute or release in whole or in part the Mortgaged Property or any other collateral or any 29 portion thereof now or hereafter held as security for the ObI igations without affecting, disturbing or impairing in any manner whatsoever the validity and priority of the lien of this Mortgage upon the Mortgaged Property which is not released or substituted, or the validity and priority of any security interest of the Mortgagee in such other collateral which is not released or substituted; (f) subordinate the lien of this Mortgage or the lien of any other security interest in any other collateral now or hereafter held as security for the Obligations; (g) join in the execution of a plat or replat of the Land; (y) join in and consent to the filing of a declaration of condominium or declaration of restrictive covenants regarding all or any part of the Land; (i) consent to the granting of an easement on the Land (and (j ) generally deal with any Obligor or any other party as Mortgagee may see fit. ARTICLB IX MISCELLANEOUS 9.1 Maximum Rate of Interest. Nothing contained herein, in the Note, in the commitment or in any other Loan Document or in any instrument or transactions related thereto; shall be construed or so operate as to require the Borrower or any person liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any Obligations, to pay interest, or any charge in the nature of interest, in an amount or at a rate which exceeds the maximum rate of interest allowed by applicable law, as amended from time to time. Should any interest or other charges in the nature of interest received by Mortgagee or paid by the Borrower or any parties liable for the payment of the loan made pursuant to the Note, or liable for the payment of any Obligations, exceed the maximum rate of interest allowed by applicable law, as amended from time to time, then such excess such shall be credited against the principal balance of the Note or the balance of the other Obligations, as applicable, unless the Borrower or such other parties liable for such payments, as applicable, shall notify the Mortgagee in writing, that the Borrower or such other party elects to have such excess sum returned to it forthwith, it being the intent of the parties hereto that under no circumstances shall the Borrower or any parties liable for any of the aforesaid payments be required to pay interest in excess of the maximum rate of interest allowed by applicable law, as amended from time to time. The Mortgagee may, in determining the maximum rate of interest allowed under applicable law, as amended from time to time, take advantage of any state or federal law, rule or regulation in effect from time to time which may govern the maximum rate of interest which may be reserved, charged or taken. 9.2 Survival of Warranties and Covenants. The warranties, representations, covenants and agreement set forth in this Mortgage shall survive the making of the Loan and the execution and delivery of the Note, and shall continue in full force and effect until all of the Obligations shall have been paid and performed in full. 9.3 No representation by Mortgagee. By accepting or approving anything required to be observed, performed or fulfilled, or to be given to Mortgagee, pursuant to this Mortgage, the Commitment, or the other Loan Documents, including, but not limited to, any officer's certificate, balance sheet, statement, surveyor appraisal, Mortgagee shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or representation with respect thereto by Mortgagee. 30 9.4 liotice. All notices, demands, reques~5 and othe~ communications required under this Mortgage may be given orally (either in person or by telephone if confirmed in writing within (3) days thereafter), by telex, telegram, or telecopy, or in writing delivered by hand or mail and shall be conclusively deemed to have been received if delivered or attempted to be delivered by united states first class mail, return receipt requested, postage prepaid, addressed to the party for whom it is intended at its address set forth in the introduction to this Mortgage. Any part may designate a change of address by written notice to the other party, received by such other party at least ten (10) days before such change of address is to become effective. 9.5 ~ortqagee's Right to pay and Perform. If Mortgagor or Borrower shall fail to duly payor perform any of the Obligations required by this Mortgage, then at any time thereafter without notice to or demand upon Mortgagor or Borrower, and without waiving or releasing any right, remedy, or power of Mortgagee, and without releasing any of the Obligations or any Event of Default, Mortgagee may payor perform such Obligation for the account of and at the expense of Mortgagor and/or Borrower, and shall have the right to enter and to authorize others to enter upon the Land and the Improvements for such purpose and to take all such action thereon and with respect to the Mortgaged property as may be necessary or appropriate for such purpose. All payments made and all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee, together with interest thereon at the Default Rate from the date incurred by Mortgagee shall be secured by this Mortgage and shall be due and payable by Mortgagor and/or Borrower immediately, whether or not there be notice, demand, an attempt to collect same, or suit pending. 9 ~6 covenants Runninq with the LandL All covenants contained in this Mortgage shall be binding on the mortgagor and shall run with the Leasehold Estate. 9.7 ~uccessors and Assiqns. All of the terms of this Mortgage shall apply to and be binding upon, and inure to the benefit of, the successors and assigns of Mortgagor and Mortgagee, respectivelY, and all persons claiming under or tbrough them. 9.8 Invalidity. (a) If anyone or more of the provisions contained in this Mortgage is declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision or portion thereof shall be deemed stricken and severed and the remaining provisions hereof shall continue in full force and effect. (b) If anyone or more of the Obligations is declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining Obligations shall continue to in full force and effect. 9.9 ~odification. No agreement unless in writing and signed by an authorized officer of Mortgagee and no course of dealing between the parties hereto shall be effective to change, waive, terminate, modify, discharge or release in whole or in part any provision of this Mortgage. No waiver of any rights or powers of Mortgagee or consent by it shall be valid unless in writing signed by an authorized officer of Mortgagee and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 9.10 ~ppl icable Law. This Mortgage shall be construed, 31 interpreted, enforced and governed by and in accordance with C.2 laws of the state of Florida (excluding the principles thereof governing conflicts of law), and federal law, in the event federal law permits a higher rate of interest than Florida Law. 9.11 strict performance. It is specifically agreed that time is of the essence as to all matters provided for in this Mortgage and that no waiver of any Obligation hereunder or secured hereby shall at any time thereafter be held to be a waiver of the Obligations. 9.12 Joint and Several Liability~ If more than one Person executes this Mortgage, each is and shall be jointly and severally liable hereunder; and if Mortgagor is a general partnership, then all partners in Mortgagor shall be jointly and severally liable hereunder, notwi thstanding any contrary provision in the partnership laws of the state of Florida. 9.13 Ho MergerL So long as this Mortgage is in existence, the Lessor's fee simple interest in the Land and Improvements and the Mortgagor's Leasehold Estate therein shall not merge, but shall remain separate and distinct, notwithstanding the acquisition of both estates by Lessor, or by Mortgagor, or by Mortgagee, or by any other Person. 9.14 AGREB THAT STATEMENTS DOCUHENT · THB BANK, THB BORROWER AND TUB MORTGAGOR SPECX~ICALLY THEY WAIVE ALL RIGHTS TO RELY ON OR BNFORCB ANY ORAL MADE PRIOR TO OR SUBSEQUEN'r IfO THE SIGNING O~ THIS 9.15 THB BlUut, '1'0 BORROnR un 'tHB MORTGAGOR HEREBY ItNOWINGLY, VOLUNTARILY AND INTBLLIGBNTLY nXVB THB RIGHT BlUER KAY HAVE '1'0 A TRIAL BY JURY IN RESPBCt' lfO AllY LIlfIGATIOB BASED DREON, OR ARISING OUT OF, UNDBR OR IN OOHHBCTIO. WITH THIS DOCUKBNT, AND ANY AGREBKBN'l' CONTBHPLATED '1'0 BB BDCUTBD IN CONJUNCTION BBRBlIITH, OR ANY COURSB OF CONDUCT, COURSB O~ D~NG, STATEMENTS (1fBBTHBR VERBAL OR WRITTEN) OR ACTIONS OJ' ANY pAftY HADB BBFaRl, DURING, OR AFTER THB EXBCUTION OJ' THIS DOCUKBN'l'. THIS PROVISION IS A KATBRIAL INDUCEMENT ~OR THE BANK BXTENDING CREDI., TO BORROQR. 9.16 VENUB AND JURISDICTION SHALL BB IN DADB COUNTY, FLORIDA, ~OR ANY AFJ'IRMATIVE OR DBJ'ENSIVE LEGAL PROCEEDING IN CONNECTION lIITH THIS DOCUKENT AND/OR ANY OTHBR DOCtJlIB)tT SIGNBD BY THB BORROWER AND THB MORTGAGOR IN ~AVOR O~ 'I'd BANK. IN WITNESS WHEREOF, Mortgagor and Borrower have executed this instrument as of' the day and year first above written. KOJrl'GAGOR: Signed, sealed and delivered in the presence of: 1 WASHINGTON AVENUE CORP., a Florida corporation. 1 Washington Avenue Miaai Beach, Florida. By: ARTHUR FORGETTE, PRESIDENT AND SECRETARY. 32 BORROWER: SOUTH POINTE HOSPITALITY, INC. , a Florida corporation, d/b/a Crawdaddy's Restaurant. 1 washigton Avenue Miami Beach, Florida By: ARTHUR FORGETTE, PRESIDENT Attest: PATRICIA FORGETl'E, SECRETARY GUARANTORS: ARTHUR FORGETTE , SOUTH POINTE HOSPITALITY, INC. 1 Washington Avenue Miami Beach, Florida. PATRICIA FORGETTE Same as above. STATE OF FLORIDA ) ) SS: COUNTY OF DADE ,) THE FOREGOING INSTRUMENT was acknowledged before me this ____ day of , 1994, by ARTHUR FORGETTE, as President and Secretary of 1 WASHINGTON AVENUE CORP., a Florida corporation, on behalf of the corporation. lie has produced as identification and did take an oath. My Commission Expires: ENI F. CALVINO NOTARY PUBLIC COMMISSION NO. STATE OF FLORIDA ) ) ) 5S: COUNTY OF DADE THE FOREGOING INSTRUMENT was acknowledged before me this ____ day of , 1994, by ARTHUR FORGETTE AND PATRICIA FORGETTE, as President and Secretary, respectively, of SOUTH POINTE HOSPITALITY, INC., a Florida corporation, on behalf of the corporation. They have produced Florida Drivers License as identification and did take an oath. My Commission Expires: ENI F. CALVINO NOTARY PUBLIC. COMMISSION NO. 33 STATE OF FLORIDA ) ) ) SS: COUNTY OF DADE THE FOREGOING INSTRUMENT was acknowledged before me this _ day of , 1994, by ARTHUR FORGETTE AND PATRICIA FORGETTE. They have produced Florida Drivers License as identification and did take an oath. My Commission Expires: ENI F. CALVINO NOTARY PUBLIC. COMMISSION NO. ~ A:CRAWDADDY.MTG\eni 34 Commence at referenced Monument "C" and run S 65'36'16" E along the Northerly line of SOUTH POINTE PARK, a distance of 697.058 feet to a Point of Intersection (P.I.) with the state of Florida, Department of Natural Resources Coastal Construction Control Line; thence run S 10'23'21.8" W along the Coastal Construction Control Line, a distance of 382.005 feet to an intersection with the Northerly line of a 50.00 foot maintenance easement for "Government Cut;" thence run N 65'35'19" W along the Northerly line of said Maintenance Easement a distance of 59.74 feet to the Point of Beginning (P.O.B.) of the Restaurant site; thence continue N 65' 35' 19W along the last mentioned course a distance of 160.00 feet; thence run N 24'24'41" E a distance ,of 100.00 feet;thence run S 65'35'19" E a distance of 160.00 feet; thence run S 24'24'41" W a distance of 100.90 feet to the Point of Beginning. 8aid lands lie wholly within the following property described as followsz For the Point of Beginning commence at a 10" square concrete monument located on the northerly boundary of the U.S. Corps of Engineers Reservation, being on a bearing of South 65'13' East, and a distance of 16.62 feet from the westernmost corner of Lot 6, Block 4 of South Beach Park Subdivision as shown in Plat Book 6 at Page 77 of the Public Records of Dade County, Florida, said monument designated "C" having coordinates of X-784,440.39, and y_ 521,912.47. Said monument also lies approximately South 24~27'26" W a distance of 592.30 feet South of, and North 65'36'16" East, a distance of 554.97 feet west of the northeast corner of the northwest 1/4 of Section 10, Township 54 South, Range 42 East. From said point of beginning, thence run along the northerly boundary of said land South 65'36'16" East, passing through a monument designated "A" at a distance of 713.87' a total distance of 1,476.52 feet, more or less, to its intersection with the erosion control line established for the Miami Beach renourishment project as shown on Dade County Plat File Number 24-5342-12, Sheet 1 of 14, dated July 25, 1977; thence run South 23' 41'12" East along said erosion control line and its extension, a distance of 630.14 feet; more or less, to the Mean High Water line of the northerly shoreline of the "Government cut" for the entrance channel of Miami Harbor; run thence northwesterly along said Mean High Water line on an approximately bearing of North 65' 35' 19" West, a distance of 1,945.66 feet, more or less, to a point on the mean high water line which lies South 24' 25' 50" West, a distance of 50 feet, more or less, from U.S. Corps of Engineers monument "Wiggins"; thence run North 24'25'50" East a distance of 50 feet, more or less, to monument "Wiggins"; thence continue North 24' 25' 50" East, 370.43 feet to monument "C" and the Point of Beginning. LYING AND BEING IN DADE COUNTY, FLORIDA. NQT~: THIS INSTRUMENT IS A LEASEHOLD MORTGAGE AND THEREFORE NON- RECU~RING INTANGIBLE TAX IS NOT DUE OR PAYABLE. THIS INSTRUMENT PREPARED BY: LUIS A. CONSUEGRA, ESQ. 780 N.W. 42 Avenue suite 300 Miami, FL 33126 BCU~,,"~'~ -.. - - .' - - -.' ,- '.' - _:'~,~~~.~;.\:*;'}.-.. "-' '.".' - -'~- --"'-".':""~"':::~'-"~~") THIS LBASBHOLD MORTGAGB AND SECURITY AGREEMENT (the "Mortgage"), made as of the day of , 1994, between SOUTH POINTB HOSPITALITY, INe., a Florida corporation, d/b/a Craw4addy's Restaurant, (the hBorrower"), as borrower, whose principal place of business is 1 Washington Avenue, Miami Beach, Florida, 1 WASHINGTON AVENUB CORP., a Plori4a corporation, (the "Mortgagor"), as mortgagor of the premises located at 1 Washington Avenue, Miami Beach, Florida, and OCEAN BANK, a state banking corporation (the "Mortgagee"), as mortgagee and secured party, whose address is 780 N.W. 42 Avenue, Miami, Florida 33126. ARTICLB I DEFINITIONS, HEADINGS, RULES OF CONSTRUCTION AND SECURITY AGREEMENT. 1.1 Definitions. As used in this mortgage and in the exhibits attached hereto, the following terms shall have the following meanings herein specified, such definitions to be applicable equally to the singular and plural forms of such terms; (a) Commitment: The Commitment letter from Mortgagee to Borrower dated as of October 22, 1993, together with any amendments thereto. (b) Default Rate: The Default Rate as defined in the Note. .. (c) Events of Default: Article VII hereof. './,!'I~., (d) Fixtures: All property and equipment now owned or herearter acquired by Mortgagor and now or hereafter located under, on, or above the Land, whether or not permanently affixed, which, to the fullest extent permitted by applicable law in effect from time to time, shall be deemed fixtures and a part of the Land. Those events described in (e) Governmental Authority: Any (domestic or foreign) federal, state, county, municipal or other governmental department, entity, authority, commission, board, bureau, court, agency or any instrumentality of any of them. (f) Governmental Requirement: Any law, enactment, statute, code, ordinance, order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, 1 EXHIBIT "B" Co l: tho r i z at ion , or C~~ :-,::: r d : .- -::::: t i ': :l .:' r r 2 ,~u :. !,' c :-:-:: n t. 0 ;: a n l' Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issu~d applicable to the Mortgagor, the Land, the Improve~e~ts, C~ a:lY c! the ~c~tga;ed PrCp2rty. (g) Ground Lease. That certain unrecorded Lease by and between CITY OF MIAMI BEACH, a municipal corporation of the state of Florida, as Landlord, and SPECIALTY RESTAURANTS CORPORATION, a California corporation authorized to transact business in the state of Florida. Said unrecorded Lease has been assigned to MORTGAGOR by Assignment of Lease recorded on even date in the public records of Dade County, Florida. (h) Guarantor: Jointly and severally any and all Persons now or hereafter guarantying this Obligation or any part thereof (collectively referred to as the "Guarantor"). (i) Guaranty: Any guaranty of payment, performance or completion executed by any Guarantor in favor of Mortgagee with respect to this Obligation. (j) Hazardous Substances: Any hazardous, toxic or dangerous waste, substance or material including, but not limited to, those elements or compounds which are now or hereafter contained in the list of hazardous substances adopted by the United states Environmental Protection Agency (the "EPA"), the list of toxic pollutants designed by the United States Congress or the EPA or as designated by any other federal, state, or local statute, law, ordinance, code, rule, regulation, order or decree. (k) I1l\Positions: All (i) real estate and personal property taxes and other taxes and assessments, public or private; utility rates and charges including those for water and sewer; all other governmental and non-governmental charges and any interest or costs or penalties with respect to any of the foregoing; and charges for any public improvement, easement or agreement maintained for the benefit of or involving the Land, the Improvements or any of the Mortgaged Property, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that at any time prior to. or after the execution of this Mortgage may be assessed, levied or imposed upon the Land, the Improvements or any of the Mortgaged Property or the Rent or income received therefrom, or any use or occupancy thereof, (ii) other taxes, assessments, fees and governmental and non- governmental charges levied, imposed or assessed upon or against Mortgagor or any of its properties and (iii) taxes levied or assessed upon this Mortgage, the Note, and the other Obligations, or any of them. , (1) Im~rovements: All buildings, structures, appurtenances and improvements, including all additions hereto and replacements and extension thereof, now constructed or hereafter to be constructed under, on or above the Land, which term includes any pa~,thereof . :ift,~; . l~ ' em) Land: The real property described in Exhibit "A" attached hereto and made a part hereof, together with all rights, privileges, tenements, hereditaments, rights of way, easements, appendages, projections, appurtenances, water rights, including riparian and littoral rights, streets, ways, alleys, and strips and gores of land now or hereafter in anyway belonging, adjoining, crossing or pertaining to the Land. (n) Leasehold Estate: Mortgagor in the Land, created by, the Ground lease which includes, Improvements and Fixtures now or The leasehold estate held by arising under and by virtue of but is not limited to, all hereafter erected thereon or 2 affixed thereto and any and all rights a;'.,} p~l\'Eeges appu~t.e;,~:;~ thereto. (0) Lessee: 1 Washington !'.':e~ue Corp., a Flc:.'~_' corporation, with offices at I Washington Avenue, Miami Beach, Florida. (p) Lessor: CITY OF MIAMI BEACH with offices located at 1700 Convention Center, Miami Beach, Florida. (q) Loan: $ 1,000,000.00 as evidenced by the Note. (r) Loan Documents: The Commitment and those items required by the Commitment and any other document or instrument executed, submitted, or to be submitted by Mortgagor or others in connection with the Loan, including but not limited to the: (i) Note, (ii), Mortgage, (iii), Guaranty, (iv) Loan Agreement, (v) Financing statements, and any other document or instrument defined as "Loan Documents" in the Loan Agreement. (i) all judgments, awards of damages and settlements hereafter made resulting from condemnation proceedings or the taking of the Land, the Improvements or any of the Mortgaged Property or any part thereof under the power of eminent domain, or by agreement in lieu thereof, or for any damage thereto caused by any governmental action (whether by such taking or otherwise), such as without limitation, any award for change of grade or streets; (ii) all judgments, awards and settlements hereafter made, and all insurance proceeds hereafter paid for any damage to the Land, the Improvements or any of the Mortgaged Property, 'and all unearned insurance premiums on any insurance policies maintained by the Mortgagor pursuant to this Mortgage; (iii) all awards and refunds hereafter made with respect to any Imposition; (iv) the estate, right, title, interest, privilege, claim or demand whatsoever of Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged Property; (v) all rights and benefits of every nature whatsoever derived or to be derived by the Mortgagor under or by virtue of the Ground Lease, including, without limitation, the right to exercise options, to give consents, and to receive monies payable to the Lessee thereunder. , . (vi) any extension, renewal or modification, as permitted by mortgagee, of the Leasehold Estate created by the Ground Lease; . , -~- :1iii~~?J~..;. (vii) all right, title and interest that Mortgagor may hereafter acquire in the Land; and (viii) all right, title and interest of the Mortgagor in and to all and singular tenements, hereditaments, easements, rights, privileges and appurtenances of the Leasehold state at any time belonging or in any way appertaining thereto. The Term Mortgaged Property includes any part of the foregoing property described as Mortgaged Property, and all proceeds, products, replacements, improvements, betterment, extension, additions, substitutions, renewals, accessories, and appurtenances 3 ",;,,-__ CO ar.Cl thereat. (t) Mortgagee: OCE&~ B.~rK, a state banking corporation, its successors and/or assigns, with offices located at 780 N.W. 42 ~vei.ue, Miami, Florida. (u) Mortqaqor: corporation with offices Beach, Florida. 1 WASHINGTON AVENUE CORP., a Florida located at 1 Washington Avenue, Miami (v) Borrower: SOUTH POINTE HOSPITALITY, INC., a Florida corporation, d/b/a Crawdaddy's Restaurant, with offices located at 1 Washington Avenue, Miami Beach, Florida. (w) Note: The Promissory Note dated of even date herewith from Borrower to Mortgagee in the amount of $1,000,000.00 and by this reference made a part hereof to the same extent as though set out in full herein. (x) Obligations: (i) Any and all of the indebtedness, liabilities, covenants, promises, agreements, terms, condi tions, and other obligations of every nature whatsoever, whether joint or several, direct or indirect, absolute or contingent, liquidated or unliquidated, of Borrower, Mortgagor and Guarantor, or any of thea, to Mortgagee, evidenced by, secured by, under and as set forth in the Note, this Mortgage, the Guaranty or the other Loan Documents; and (aa) COrDoration: Any officer of the corporation, or other form of the corporation, howsoever designated. (bb) Permitted Title Exceptions: Those matters, if any, described in Schedule 8 to the title insurance policy insuring Mortgagee's interest in this Mortgage. (cc) Person: Any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or agency or political subdivision thereof, or any other form of entity. (dd) Personal Property: All of the following property of Mortgagor whether now owned or existing, or hereafter acquired or arising, whether located in, on, pertaining to, used or intended to be used in connection with or resulting or created from Mortgagor's Leasehold Estate in, or Mortgagor's development, management, or operation of the Land: (i) all Improvements (to the extent same are not deemed to be real property) and landscaping; (ii) all Fixtures (to the extent same are not deemed to ,be real property) and goods to become Fixtures; (iii) all accounts, accounts receivable, other receivables, contract rights, chattel paper, instruments and documents; any other obligations or indebtedness owed to Mortgagor from whatever source arising; all rights of mortgagor to receive any performance or any payments in money or kind; all guaranties of the foregoing and security therefor; all of the right, title and interest of Mortgagor in and with respect to the goods, services, or other property that gave rise to or that secure any of the foregoing, and all rights of Mortgagor as an unpaid seller of goods and services, inClUding, but not limited to, the rights to stoppage in transit, replevin, reclamation, a resale; 4 (iv) all goods, includlJ':'j ,~-,-~:iC._:: li~i-:-:-::c:-:, all machinery, equipment, furniture, furnishings, building supplies and materials, appliances, business machines, tccls, aircLa[t and motor vehicles, of every kind and description 2:-:~ -,-: ~ ',,;ar-::-::,:-,ties "~,d guaranties for any of the foregoing; (v) all inventory, merchandise, raw naterials, parts, supplies, work in process and finished products intended for sale, of every kind and description, in the custody or possession, actual or constructive, of Mortgagor including such inventory as is temporarily out of the custody or possession of Mortgagor, and any returns upon any accounts and other proceeds resulting from the sale or disposition of any of the foregoing, inClUding, without limitation, raw materials, work in process and finished goods; (vi) all general intangibles, including without limitation, corporate or other business records and books, computer records whether on tape disc or otherwise stored, blueprints, surveys, architectural or engineering drawings, plans and specifications, trademarks, tradenames, goodwill, telephone numbers, licenses, governmental approvals, franchises, permits, payments and performance bonds, tax refund claims, and agreements with utility companies, together with any deposits, prepaid fees and charges paid thereon; (vii) all Subleases and Rents (to the extent same are not deemed to be real property); (viii) All jUdgments, awards of damages and settlements paid or payable to Mortgagor from any condemnation or eminent domain proceedings regarding the Land, the Improvements or any of the Mortgaged Property; (ix) all insurance policies required by this Mortgage, the unearned premiums therefor and all loss proceeds thereof, (x) all other personal property, including without limitation, management contracts, construction contracts, architectural contracts, service contracts, engineering contracts, advertising contracts, contracts for purchase and sale of any of the Mortgaged Property, purchase orders, equipment leases, monies in escrow accounts, reservation agreements, prepaid expenses, deposits and down payments with respect to the sale or rental of any of the Mortgaged Property, options and agreements with respect to additional real property for use or development of the Mortgaged Property, end-loan commitments, abstracts of title, all brochures, advertising materials, condominium documents and prospectuses; and . (xi) all proceeds, products, replacements, additions, betterments, extensions, improvements, substitutions, renewals and accessions of any and all of the foregoing. \(. , . (ee) Rents: All of the rents, reimbursements, royalties, issues, revenues, income, profits, security deposits, and other benefits whether past due, or now or hereafter arising from the Mortgaged Property and the occupancy, use and enjoyment thereof. (ff) Subleases: Any and all subleases, licenses, concessions, or grants of other possessory interests, together with the security therefor, now or hereafter in force, oral or written, covering or affecting the Mortgaged Property or any part thereof. 1.2 Headings. The Article headings and the Section and Subsection titles hereof are inserted for convenience of reference only, and shall in no way alter or modify the text or substance of 5 such Articles, Sections and S~~sections. 1.3 Rules of Construction. The use of any gender shall include all other genders. The singular shall include the plural and the plural shall include the singular. The word "or" is not exclusive and the use of the word "and" may be conjunctive or disjunctive in the sole and absolute discretion of Mortgagee. The captions of Articles, Sections and Subsections of this Mortgage are for convenient reference only, and shall not affect the construction or interpretation of any of the terms and provisions set forth herein. 1.4 Security Agreement. This Mortgage constitutes a "Security Agreement" within the meaning of and shall create a security interest under the Uniform Commercial Code-Secured Transactions as adopted by the State of Florida, with respect to the Fixtures, Subleases, Rents and Personal Property. A carbon, photoqraphic or other reproduction of this mortgage or of any financing statement shall be sufficient as a financing statement. The mortgaged property and the secured party's address are set forth in the introduction of this Mortgage. ARTICLB II GRANT. 2.1 Grant. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to secure the payment, observance, performance and discharge of the Obligations, Mortgagor does by these presents give, transfer, grant, bargain, sell, alien, remise, release, assign, mortgage, hypothecate, deposit, pledge, set over, confina, convey and warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and to the Mortgaged Property, whether now owned or held or hereafter acquired by Mortgagor, subject, however, to the Permitted Title Exceptions, to have and to hold the Mortgaged Property unto Mortgagee, its successors and/or assigns forever. 2.2 Condition of Grant. The condition of these presents is such that if Mortgagor shall pay, observe, perform and discharge the Obligations, or cause same to be paid, observed, performed and discharged in strict accordance with the terms thereof then this Mortgage and the estates, interests, rights and assignments granted hereby shall be null and void, but otherwise shall remain in full force and effect. 2.3 SUbrogation. The Mortgagee is hereby subrogated to the claims and liens of all parties whose claims or liens are fully or partially discharged or paid with the proceeds of the indebtedness secured by this Mortgage notwithstanding that such claims or liens .ay have been canceled and satisfied of record. AR'l'ICLB III ." ,>,~ ASSIGNMENT OF SUST.RASES AND RENTS Mortgagor does hereby absolutely and e;. ransfer to Mortgagee all of Mortgagor's estate, right, title and interest in and to the Subleases and Rents, to have and to hold the Subleases and Rents unto Mortgagee, its successors and assigns forever. From time to time, upon request of Mortgagee, Mortgagor shall give further evidence of this assignment to Mortgagee by executing and delivering to Mortgagee specific assignments of the Subleases and Rents, in form and content approved by Mortgagee. All such specific assignments shall be of the same dignity and priority as this Mortgage. From time to time, upon request of Mortgagee, Mortgagor shall also execute and 6 any s~btenant unjer any Sublease to asslgn ~~ 3~clet its righ~s thereunder. 3.7 Delivery of Executed Subleases ~~~ ~~nthly status Reports. Mortgagor covenants that it shall furnish Mortgagee with executed copies of all Subleases within ten (10) days after the execution thereof, and a monthly status report on all leasing activities, together with such other related information as may be reasonably required by Mortgagee. 3.8 No Obliaation of Mortaagee. This Assignment shall not be deemed or construed to constitute Mortgagee as a mortgagee in possessio of the Mortgaged Property nor shall it obligate Mortgagee to take any action or to incur expenses or perform or discharge any obligation, duty or liability of Mortgagor under any Sublease. 3.9 CUmulative Remedies. Each and every right, remedy and power granted to Mortgagee by this Article shall be cumulative and in addition to every other right, remedy and power given by the Loan Documents and now or hereafter existing in equity, at law, or by virtue of statute or otherwise. The failure of Mortgagee to avail itself of any of its rights, remedies and powers shall not be construed or deemed to be a waiver thereof. 3.10 Notification of Mortgagee's Rights. Mortgagee shall have the right, but not the obligation, at any time and from time to time, to notify any subtenant under any Sublease of the rights of Mortgagee as provided in this Article III and Mortgagor, upon demand from Mortgagee, shall confirm to such subtenant the existence of such rights. 3.11 Management and Leasing: (a) The Mortgagor covenants that the Mortgaged Property shall be managed by the Mortgagor or by a management company which shall have been approved in writing by the Mortgagee and pursuant to a management agreement which shall have been approved in writing by the Mortgagee prior to the execution thereof. (b) If at any time Mortgagee shall determine, in the exercise of Mortgagee's sole discretion, that Mortgagor has failed to proceed with reasonable diligence in the leasing of the rental space contained in or on the Mortgaged Property, Mortgagee may, at its option, require Mortgagor to employ a reputable real estate leasing organization to lease such rental space. The selection of such company by Mortgagor shall be subject to the prior written approval of Mortgagee. (c) In the event Mortgagor shall fail to select a company approved,: by Mortgagee within twenty (20) days after Mortgagee shall request Mortgagor to do so pursuant to Subsections (a) or (b) above, such failure shall constitute an Event of Default under ~i~>Mo~age. > ''''';.' 'f;~t'\!~,iY':'" 3 .12 Leasing Commission. Mortgagor covenants that every agreement to pay leasing commissions with respect to the leasing of space in the Mortgaged Property, or any part thereof, are and shall be subject, subordinate and inferior to the right of Mortgagee, so that in the event Mortgagee acquires ti tIe to the Mortgaged Property either at a foreclosure sale or by other means, Mortgagee will be exonerated and discharged from all liabilities for the payment of any such commissions or compensations. 3.13 Attorney-In-Fact. To further effectuate Mortgagee's rights under this Article III, Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in- fact, which appointment is coupled with an interest, with full 8 power of S_L~_l~~ticn, 3nd ecpc~ers S~la ~::.=~ei :~ 3~~or~~i3 In the name of Mortgagor, but at the option af said attcrney-in-fact, to (i) collect and receive the Rents and to issue receipts therefor, (ii) to make, enter into, extend, modify, amend, terminate, con3en~ to the cancellctian or surrc~der of any Sublease, or permit any subtenant to assign or sublet its rights thereunder, (iii) to execute, acknowledge and deliver any and all instruments and documents that Mortgagee may deem necessary or proper to implement its rights as provided in this Article III and (iv) to perform and discharge any and all obligations and undertakings of Mortgagor under any Sublease. 3.14 Other Assignments. Mortgagor shall not further assign or transfer the Subleases or Rents except in favor of Mortgagee as provided in this Article III, and shall not create or permit to be created or to remain, any mortgage, pledge, lien, encumbrance, claim, or charge on the Subleases or Rents. Any transaction prohibited under this Section shall be null and void. ARTXCLB XV REPRESENTATIONS AND WARRANTIES rt::::aq::r:: Borrower (i) are corporations, validly existing and in good standing under the laws of the State of Florida, (ii) have corporate power and authority to own its properties and to carry on its business as now being conducted, (iii) are qualified to do business in the State of Florida, and (iv) are in compliance with all Governmental Requirements. (b) Validity of Loan Documents. (i) Tbe execution, delivery and performance by Mortgagor of the Ground Lease and the Loan Documents, and the borrowing evidenced by the Note, (A) are within the powers and purposes of Mortgagor and Borrower, (B) have been duly authorized by all requisite action of Mortgagor and Borrower, (e) do not require the approval of any Governmental Authority, and (D) will not violate any Governmental Requirement, the articles of incorporation or bylaws of Mortgagor and/or Borrower, or any indenture, agreement or other instrument to which Mortgagor is a party or by which it or any of its property is bound, or be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge, or encumbrance of any nature whatsoever upon any of its property or assets, except as contemp1ate~,by the provisions of the Loan Documents; and (ii) the Ground Lease and Loan Documents, constitute the legal, valid and binding obligations of Mortgagor and other obligor named therein, if any, in accordance with their respective terms. i' .." (e) Pinancial statements. All balance sheets, statements of profit and loss, and other financial data that have been given to Mortgagee with respect to the Mortgagor, Borrower and the Guarantor, (i) are complete and correct in all material respects, (ii) accurately present the financial condition of said parties as of the dates, and the results of its or their operations, for the periods for which the same have been furnished, and (iii) have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods covered thereby; all balance sheets disclose all known liabilities, direct and contingent, as of their respective dates; and there has been no change in the condition of the Mortgagor or the Guarantor, financial or otherwise, since the date of the most recent financial 9 statements given to M~rt;2g~e with r8spect ~8 33~~ ;Jrtl~3, C~~~~ than changes in the ordinary course of business, none of which changes has been materially adverse. (d) Other Aqree~encs. Mortgagor is not a party to any agreement or instrument materially and adversely affecting any of the Mortgaged Property, Mortgagor, or Mortgagor's present or proposed businesses, properties or assets, operation or condition, financial or otherwise, and Mortgagor is not in default in the performance, service or fulfillment of any of the material obligations, covenants or conditions set forth in any agreement or instrument to which it is a party. (e) other Information. All other information, including reports, financing statements, certificates, appears, date and otherwise, given and to be given to Mortgagee with respect (i) to Mortgagor or any Guarantor, (ii) to the Ground Lease, (iii) to the Loan and (iv) to others obligated under the terms of the Loan Documents, are true, accurate and correct in all material respects and complete. (f) Title. Mortgagor is the sole owner and holder of the entire lessee · s interest in the Ground lease and of the Leasehold Estate created thereby. Mortgagor will preserve its title to the Mortgaged Property and will forever warrant and defend the same to Mortgagee and will forever warrant and defend the validity and priority of the lien of this Mortgage against the claims of all persons and parties whomsoever. (g) No violations. To the best of Mortgagor' s knowledge, no Governmental Requirement, and no covenant, condition, restriction, easement or similar matter affecting the Land, the Improvements or any of the Mortgaged Property has been violated and Mortgaqor' has not received any notice of violation from any Governmental Authority or any other person with respect to any of the ~oreqoinq _atters. (h) Ground Lease. The fully executed copy of the Ground Lease delivered to Mortgagee by Mortgagor is a true, correct and complete copy of the Ground Lease. The Ground Lease is in full force and effect, in good standing, and is unmodified as of the date hereof. All rents (including additional rents and other charqes) reserved in the Ground lease have been paid to the extent that they were payable prior to the date hereof. There is no existing default under the Ground lease or in the performance of any of the terms, covenants, conditions or warranties thereof by Mortgagor or by lessor, and no event has occurred which with due notice or the lapse of time, or both, would constitute a default thereunder. ~ ;t-: -': ,.. .' , .' I ' ": ,...i.. ~[. .... -..... :;.. J - . ~ . . ~. 1,.. 'I ~ r. l~'."'''' 1 ....: ;... . r has filed all federal, state, coun eturns required to have been filed by it, and has paid all taxes that have become due pursuant to such returns'LPursuant to' any assessments received by it or pursuant to law," and MortgagoJ; . does not know of any basis for additional assessment with respect to such taxes or additional taxes. The Land is assessed separately from all other adjacent land for the purposes of real estate taxes and there is no intended public improvements which may involve any charge being levied or assessed, or which result in the creation of any lien upon the Land, the Improvements or any of the Mortgaged property. (j) Litigation. There are no judgments outstanding against Mortgagor or Borrower and there is no action, sui t, proceeding, or investigation now pending (or to the best of Mortgagor's and Borrower's knowledge after diligent inquiry), threatened against, inVOlving or affecting Mortgagor or the 10 ~:8r':Sciged Property, ::::r any part t.hereof, a t. law, in equity or before any Governmental Authority that if adversely determined as to the Mortgagor or as to the Mortgaged Property would result in a material adverse chanoe in the business or financial condition of the Mortgagor or Mo~tgagor's operation and ownership of the Mortgaged Property, nor is there any basis for such action, suit, proceeding or investigation. (k) utilities. There is available to the Land and Improvements through public or private easements or rights of way abutting or crossing the Land (which would inure to the benefit of Mortgagee in case of enforcement of this mortgage) a water supply and a sanitary sewer service approved by all health and other authorizes having jurisdiction, and electric, gas (if applicable) and telephone service, all of sufficient capacity to serve the needs of the Land and Improvements according to their intended purposes. (1) Condition of Mortaaged Property. Neither the Land, the Improvements nor any of the Mortgaged Property or any part thereof, now existing, is damaged or injured as a result of any fire, explosion, accident, flood or other casualty. To the best of Mortgagor's knowledge, the Improvements, as of the date of this mortgage, are free of any defects in material, structure and construction and do not violate any Governmental Requirements. To the best of Mortgagor's knowledge, there is no existing, proposed or contemplated plan to modify or realign any street or highway or any existing, proposed or contemplated eminent domain proceeding that would result in the taking of all or any part of the Land, the Improvements or any of the Mortgaged Property, or that would adversely affect the use or the operation of the Land, the Improvements or any of the Mortgaged Property. < (11)' Zonina. The Land is zoned so as to permit the Land and ~provements to be used for their intended purpose. , ,~ .~ (n) No Default. No default or Event of Default exists under any of the Loan Documents; and no event has occurred and is continuing whiCh, with notice or the lapse of time, or both, would constitute a default under any provision thereof. (0) Fictitious Name statute. Mortgagor, if applicable, has duly complied with all of the requirements of the Florida Fictitious Name statute. Hazardo s ubsta ces. TOdge based on environmental audit reports, neither the Land, the Improvements nor any of the other Mortgaged Property has in the past been used for the handling, storage, transportation or disposal of Hazardous Substances, other than 'as disclosed in the environmental audit reports ,previously submitted by Mortgagor to Mortgagee. Neither the Land, the Improvements nor any of the other Mortgaged Property is presently being used for the bandling, storage, transportation, or disposal of Hazardous Substances except in full compliance with all applicable legal requirements. No notice or advice has been received by Mortgagor of any condition or state of facts that would be contributing to a claim of pollution or any other damage to the environment by reason of the conduct of any business on the Land, the Improvements or any of the Mortgaged Property or the operation thereof as presently being conducted. (q) Guarantor's ReDresentations and Warranties. The representations and warranties of the Guarantor contained in the Guaranty are true and correct. 4.2 Reliance on Representations. The Mortgagor acknowledges 11 tha t the N:::;;::-::.j agee has re 1 ied '.lr:;:::;;-, ~ ' ; I ,; --;; ~ ,2 ,c>2.;"c t::. -: i. ;::~ -; : has made no independent investig~t~~~ ~f the ~ruth thereof, is n~t charged with any knowledge contrary thereto that may be received by an examination of the public records in Tallahassee, Florida, and wherein the Land is located, or t~~~ ~~j have teen received by any officer, director, agent, employee or shareholder of Mortgagee. ARTICLE V AFFIRMATIVE COVENANTS 5.1 Payment and Performance. Borrower shall promptly pay and punctually perform, or shall cause to be promptly paid and punctually performed, all of the Obligations as and when due and payable. 5.2 Existence. Mortgagor and Borrower shall preserve and keep in full force and effect their existence, rights, franchises, trade names and qualification to transact business in the state of Florida. 5.3 Compliance with Laws. Mortgagor shall promptly and faithfully comply with, conform to and obey all Governmental Requirements and the rules and regulations now existing or hereafter adopted by every Board of Fire Underwriters having jurisdiction, or similar body exercising similar functions, that may be applicable to Mortgagor, the Land, the Improvements or any of the Mortgaged Property or to the use or manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Land, the Improvement or any of the Mortgaged Property, whether or not such Governmental Requirement or rule or regulation shall necessitate structural changes or improvements or interfere with the use or enjoyment of the Land, the Improvements or any of the Mortgaged Property. 5.4 Impositions. (a) Mortgagor shall pay all Impositions on the Land, the Improvements and the other Mortgaged Property and all taxes levied or assessed upon this Mortgage, the Note and the Obligations, or any of them. In the event of the passage, after the date of this Mortgage, of any law (i) making it illegal for the Mortgagor to pay the whole or any part of the Impositions, or charges or liens herein required to be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and all taxes levied or assessed upon this Mortgage, the Note, or the Obligations or the interest in the Mortgaged Property represented by this Mortgage unlawful, or (iii) rendering the covenants for the payment of the matters set forth in Subparts (i) and (ii) of this Subsection by Mortgagor legally inoperative, the Mortgagor shall pay, upon demand, the entire unpaid Obligations notwithstanding anything in the Note, this Mortgage, or the other Loan Documents to the contrary. ',. (b) Mortgagor shall deliver to Mortgagee, on or before December 31 of each year, tax receipts evidencing the payment of all ad valorem taxes upon the Land, the Improvements and the other Mortgaged property for the then current calendar year, and shall deliver to Mortgagee receipts evidencing the payment of all other Impositions within thirty (30) days after same become due and payable or before 'same shall become delinquent, whichever is sooner. 5.5 lnsurance. full for c premiums paid thereon, intain and keep in term of this Mortgage, with all notice or demand, the following 12 lnsurance with respect to the Land, t~e I~prove8e~: Mortgaged Property: (i) During construction of the Improvements, Builder's All-Risk or All Perils, Conpleted Value, ~on-Reporting Form Insurance ("Builder's Risk Insurance") reflecting coverage in such amounts as Mortgagee may require, but in no event less than 100% of the full replacement cost of the Mortgaged Property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure or the acquisition of the Mortgaged Property by a deed in lieu thereof, a change in ownership of the Land, the Improvements or any of the Mortgaged Property, a more hazardous use of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by Mortgagor, Lessor, or any Person having an interest therein, provided that the mortgagee pays any premium demanded should the Mortgagor or Lessor fail to do so; the aforesaid mortgage endorsement (which creates a separate agreement between the insurance company and the mortgagee) shall also specifically cover and apply to that portion of the Mortgaged Property constituting Personal Property: (B) a replacement cost endorsement, (C) a stipulated value/agreed amount endorsement, (D) flood insurance, if the Land is in a designated flood plain area, (E) collapse and earthquake coverage, and (F) vandalism and malicious mischief coverage. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. Such policy shall also cover all Mortgaged Property whether on the Land, stored off the Land, or in transit and the transit coverage shall equal or exceed the largest single shipment. In addition, consequential and resulting losses from an 1'insured peril shall also be covered: t:--:e ct.r~er .' At(ii) ~. Upon, completion of construction of the .~,.. raprovement., All-Risk' (Special) Hazard Insurance ("All-Risk Hazard 1nsurance") reflecting.coverage in such amounts as Mortgagee may :<requlre; :--but in no event ,less than 100' of the full replacement :-..\ "cost o~,' the Mortgaged property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure to the acquisition of the Mortgaged Property by a deed in -lieu thereof, a change in ownership of the Land, the _.~ Improvements or any ot~ the Mortgaqed Property, a more hazardous use 'of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by the Mortgagor, Lessor, or any Person having an interest therein, provided that the mortgagee pays any premiWD demanded should the M9rtgagor or Lessor fail to do so; the :', ":' afore~id,~mortqage;;en(lor_sement (whicJ1 creates a's,eparate. agreement :'f1tbetwe~ bet insurane.(-~company. I~_nd: the,,~mortgagee)' shall". also .~1i1 speci~icallY..:t;,cover-~OJ)d apply to that portion of the Mortgaged Property constituting Personal property 7 (B) a replacement cost R' ,endorsement.!,. (C) a, st,~pU~*1...~~~ .va!\l~/agreed amount endorsement, (D) ',~." boiler explosion coverage,," it ' applicable, (E) sprinkler leakage , coverage i', if- appl icable, i ': (F)" vandal ism and mal icious mischief coverage (G) twelve (12) months rent loss and business interruption coverage, and (H) flood insurance, if the Land is in a designated flood plain area. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. In addition, consequential and resulting losses from an insured peril shall also be covered: (iii) General Comprehensive Public Liability Insurance ("Liability Insurance") against claims for bodily injury, death and property damage, occurring in, on, or about the Land, the Improvements or any of the Mortgaged Property, in such amounts as 13 involve an estimated expenditure o~ ~~re than 525,000.00, no such restoration, repair, or replacement shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee have been submitted to and approved by Mort;~0~2. 5.9 Condemnation. (a) Mortgagor shall immediately notify Mortgagee upon obtaining any knowledge of the institution of any proceedings for the condemnation (which term when used in this Mortgage shall include any damage or taking by any Governmental authority and any transfer by private sale in lieu thereof, either temporarily or permanently) of the Land, the Improvements or any of the Mortgaged Property or any part thereof. (b) The Mortgagee shall be entitled to all condemnation awards, compensation and other payments (collectively the "Condemnation Awards") due Mortgagor in accordance with the terms of the Ground Lease and Mortgagee is hereby authorized, at its option, to commence, appear in and prosecute, in its own or in Mortgagor's name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith; provided, however, that Mortgagee shall not commence or prosecute such action or proceeding or settle or compromise such claim so long as (i) no Event of Default exists, and no condition exists which but for notice would constitute an Event of Default and (ii) Mortgagor shall retain legal counsel, reasonably acceptable to Mortgagee, to represent Mortgagor in connection with such condemnation and shall timely commence and diligently prosecute any action, proceeding, settlement and compromise in connection therewith. All such Condemnation Awards, damages, claims rights of action and proceedings and the right thereto are hereby assigned by Mortgagor to Mortgagee and shall be applied first, to the payment of all costs and expenses (including, without liaitation, ~reasonable attorneys fees and expenses) incurred by Mortgagee in connection with any action or proceeding under this Section 5.9 (provided that such amounts shall not be applied to payment of the above expenses prior to Mortgagee's notification to Mortgagor of the expenses incurred by Mortgagee and Mortgagor having been given five (5) days from receipt of such notice to pay such amounts), and second, (i) in the event of a total or substantial taking (as described in Subsection 5.9(c) below) to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or (ii) in the event of a partial taking (as described in Subsection 5.9(d) below) to the restoration, repair or alteration of the Land, the Improvements and the other Mortgaged Property as provided in Subsection 5.9(d). (c) If all or "substantially all of the Premises" (as said term J~d..e~ine.d"in the Ground lease) shall be damaged or taken through ,condemnation, '. Mortgagee at its option may declare all of the unpaid Obligations to be immediately due and payable, and upon ten (10) days written notice from Mortgagee to Borrower all such Obligations shall immediately become due and payable as fully and to the same extent as if such date were the date originally specified for the final payment or maturity thereof. (d) If less than substantially all of the Premises should be damaged or taken through condemnation, the Condemnation Awards shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently regardless of whether there shall be sufficient Condemnation Awards therefor restore, repair and alter the Land, the Improvements and the other Mortgaged Property in a manner satiSfactory to Mortgagee. During the period of restoration, repair and alteration, the Borrower shall continue to duly andc 16 counsels' fees ;aid or incurred by ::--:..:::.~.:.-:;~e 3~_aL. be dee:-:led to include paralegal's fees and legal assistants' fees. Moreover, wherever provision is made herein fa:':: ~~~r::er.t of attorneys' or counsels' fees or expenses incurred by the M~rtgasc2, said provision shall include, but not limited :'0, such fees or expenses incurred in any and all judicial, bankruptcy, reorganization administrative, or other proceedings, including appellate proceedings, whether such fees or expenses arise before proceedings are commenced or after entry of a final judgment. 5.13 Performance of the Commitment. The Obligations of the Mortgagor and Borrower under the Commitment shall sure the execution and delivery of this Mortgage and all other loan documents and Mortgagor and Borrower shall timely comply with, abide by and perform all the Obligations of the Commitment on their part to be complied with, abided by and performed. 5.14 Preservation of Aqreements. Mortgagor shall preserve and keep in full force and effect, or cause to be preserved and kept in full force and effect, all agreements, approvals, permits and licenses necessary for the development, use and operation of the Land, the Improvements and the other Mortgaged Property for its intended purpose or purposes. 5.15 Books and Records. The Mortgagor shall keep and maintain, at all times, full, true and accurate books of accounts and records, adequate to correctly reflect the results of the operation of the Mortgaged Property. 5.16 EstopDel Affidavits. Borrower, within ten (10) days after written request from Mortgagee, shall furnish a written statement, duly acknowledged, setting forth the unpaid principal and interest balance of the Obligations secured by this Mortgage, and whether or not any off-sets or defenses exist thereto. 5.17 Indemnification. (a) Borrower shall at its own expense, and does hereby agree to, protect, indemnify, defend and hold Mortgagee and its directors, officers, agents, employees and attorneys harmless from and against any and all liability, loss, expense, suits, proceedings, claims, demands, or damages of any kind or nature (inClUding attorneys' fees and expenses paid or incurred in connection therewith) arising out of or by reason of (i) an incorrect legal description of the Land, (ii) any action, or inaction of Mortgagee in connection with the Note, this Mortgage, the other Loan Documents or the mortgaged Property (iii) the construction of the Improvements, ( i v) the use and operation of the Land, the Improvements and the other Mortgaged Property, or (v) the presence on or un4er, or the escape, seepage, leakage, spillage, discharge, emission, or release from the Land, the Improvements or any, of the Mortgaged Property (or any part thereof) of any Hazardous Substance (inClUding, without limitation, any losses, liabilities"v~'including strict liability, damages, injuries, expinses, including reasonable attorneys' fees, costs of any settlement or jud9llent or claims asserted or arising under the Comprehensive Environmental Response, Compensation and Lability Act, any so-called federal, state or local "superfund" or "Superlien" laws, statutes, ordinances, codes, rules, regulations, order or decrees regulation, without respect to, or imposing liability, including strict liability, in connection with any hazardous Substance or standards of conduct concerning any hazardous Substance, regardless of whether within the control of Mortgagee, so long as the act or omission in question occurs prior to the sale of the Mortgaged Property and complete dispossession oflMortgagor therefrom. 18 or if as a result of -':'.-.-2' .i.;--,tc;.-~::.-::_,~:ic:1 :':-:0::::-e;:;: ';:.~- J.;--.~' ::::'./-=:-:-:::-21'"'.':3.1 Authority charged with the ad~i~istraticn thereof in r2spect of any such payment, whether of principal, interest or otherwise made or to be made by Mortgagee, Borrower shall be required to pay any tax, levy impost, duty, ch3.rge or fee of 2..-::y nature (excepting only Mortgagee's income taxes of the United states of America and its political subdivisions), Mortgagor shall and does hereby indemnify Mortgagee against and shall forthwith upon demand of Mortgagee pay to Mortgagee the amount of such payment, together with any interest, penal ties, and expenses in connection therewith, and interest thereon at the Default Rate: and in the event any of the aforesaid amounts, interest, penalties or expenses shall be subject to withholding or deduction, the amount thereof shall be increased to the extent necessary to ensure that after making such withholding or deduction and any withholdings or deductions in respect of any such increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have received had no such withholding or deduction been required to be made. (c) Any increased amount required to be paid by Borrower in accordance with the provisions of this section 5.23 shall have the same character as the amount in respect of which such increased amount is determined, but shall not (i) if characterized as principal to be applied in reduction of the principal amount outstanding under the Obligations or (ii) if characterized as interest, to be applied in reduction of accrued, unpaid interest under the Obligations. 5.22 Hazardous Substances. (a) If Mortgagor receives (i) any notice of the happening of any event involving the spillage, release, leakage, seepage discharge or cleanup of any Hazardous Substance on the Land ,oj ~e' Improvements or any of the Mortgaged Property or in oonnection with Mortgagor's operations thereon or (ii) from any Person or Governmental Authority (inClUding, without limitation the EPA) any complaint, order, citation or notice with regard to air emissions, water discharges, or any other environmental, health or safety matter (COllectively and individually and "Environmental Complaint") affecting Mortgagor, Lessor, the Land, the Improvements or any of the Mortgaged property (or any part thereof), the Mortgagor shall immediately notify Mortgagee orally and in writing of SUCh_Environmental Complaint. ..... .... . ..: ,1", t':;'7. , (b) Mortgagee shall have the right but not the obligation, and without any limitation of Mortgagee's other rights under this Mortgage, to enter onto the Land and the Improvements or to take such other actions as it deems necessary or advisable to cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any hazardous Substance or any Environmental Complaint ;. following' receipt:. of'. any notice from any Person or G9vernmental . Au~ority (including, wi thout limitation, the EPA) asserting. ;the exist.ence'of, any'Hazardous Substance or an Environmental Complaint --: pertaining to ..t1},e ~ Land, the Improvements or any of the Mortgaged Property' or .anylpart thereOf-which, if true, ,could result ,in 'an order, . suit or other action against Mortgagor. or Mortgagee which in the sole opinion 'of Mortgagee, could jeopardize Mortgagee's security under this Mortgage. All costs and expenses incurred by Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be payable by Borrower upon demand. (c) Mortgagee shall have the right, in its sole discretion, to require Mortgagor to periodically perform an environmental audit of the Land, the Improvements and the other Mortgaged Property (but not more frequently than annually unless an Environmental Complaint is then outstanding) and, if deemed necessary by Mortgagee, an environmental risk assessment of the 20 immediately, whether or not there be r.:::' :~'-? I de!1and I an at tc. collect same, or suit pending. To further effectuate Mortg~;ce's rights under this subsection 5.26 (b) , Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an intere~t, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney in fact to perform and discharge any and all obligations and undertakings of Mortgagor under the Ground Lease. ARTICLE VI ~EGATIVE COVENANTS 6.1 yse Violations. Etc. Mortgagor shall not use the Land, the Improvements or any of the Mortgaged Property or allow the same to be used or occupied for any unlawful purpose or in violation of any Governmental Requirement or restrictive covenant covering, affecting or applying to the ownership, use or occupancy thereof, commit or permit or suffer any act to be done or any condition to exist on the Land, the Improvements or any of Mortgaged Property or any article to be brought thereon that may be dangerous, or that may in any way increase any ordinary fire or other hazard, unless safeguarded as required by law or that may, in law, constitute a nuisance, public or private. 6.2 Care of the Mortgaged Property. (a) Mortgagor shall not commit or permit any waste impairment, or deterioration of the Land,t he Improvements or any of the Mortgaged Property, or (except as may be provided for in the Loan Agreement) perform any clearing, grading, filling or excavation thereof,- or make or permit to be made any alterations or additions thereto ,that would have the effect of materially diainishing the value thereof (in Mortgagee's sole opinion) or take or. permit any action that will in any way increase any ordinary fire or other hazard arising out of the construction or operation thereof. (b) Mortgagor shall not, without the prior written consent of Mortgagee, remove, demolish or substantially alter, or permit the removal, demolishment or substantial alteration of, any Improvements on the Land except,as contemplated by the terms of the Loan Documents and as set forth in the plans previously provided to Mortgagee. ; In the event such consent is given and if any work to be performed shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications,therefor, prepared by an architect satisfactory to t',Mortgagee, shall have been submitted to and approved by Mortgagee. , ,... , '. .' ...;;$ .. 1 ., . .' . , .';l /, ~n-... '.' ,@,l: "'\1'1>;.>.- :..~ D' ~C::':,1 ~~ . . ..'. ", ~ " - - . - - \ - -I. ' , o'L.:t.'. . (f'f ,i}"l't'(Q) ~Rrtgagor shall riot permit any of the Fixtures or Personal Property to be demolished or to be removed from the Land an4.Improy~ent!t.~ithout the prior writte~ c,onsent ot Mortgagee. :In . -::..the.. .ven~;<suc~-,..con.s>~nt is given,' the Mortgagee may require that .aid~~i~ture or/Personal property be replaced by an article of equal suitability and value, owned by Mortgagor free and clear of any vendor's lien, chattel mortgage, or security interest of any kind, except such as may be approved in writing by Mortgagee, and that such replacement article be encumbered by the lien of this Mortgage. Notwithstanding the foregoing, the Mortgagor may remove or demolish any Fixture or Personal Property without first obtaining the Mortgagee's prior written consent provided (i) the value of such article does not exceed in value at the time of disposition thereof $10,000.00 tor any single item, or a total of $25,000.00 in anyone year for all such items and (ii) that said article is replaced and subject to the lien of this Mortgage as 22 ~c~~liance with applicable Govern~ental Require~ents. 6.9 Ground Lease. Mortgagor shall not (a) amend, modify, extend, or in any way alter the terms of the Ground Lease or cancel, terminate, or surrender the Ground Lease; and Mortgagor does hereby expressly release, relinquish and surrender unto Mortgagee all of the Mortgagor's right, power and authority to amend, modify, extend or alter any of the terms or provisions of the Ground Lease or to cancel, terminate or surrender the Ground Lease, and any attempt on the part of Mortgagor to exercise any such right without the prior written consent of Mortgagee shall be null and void ab initiQ and shall be of no force and effectJ (b) in any way release or discharge the Lessor from duly and punctually performing any of Lessor's obligations or undertakings under the Ground LeaseJ or (c) do or permit anything to be done, the doing of which, will impair or tend to impair the security of this Mortgage or will be grounds for terminating or declaring a forfeiture of the Ground Lease. ARTICLB VII EVENTS OF DEFAULT 7.l Events of Default. An "Event of Default" as used in this Mortgage, shall occur at any time or from time to time: (a) Failure to Pay. If any Obligation or any installment thereof is not paid as and when due and payable taking into account all applicable grace periods given Mortgagor by Mortgagee: (b), Failure to Perform. If any Obligation (other than an ,Obligation requiring the paYJDent of money for whicb a grace period is otherwise provided for elsewhere in the Loan Documents of the occurrence of an event described in Subsections 7.I(c) through 7.1(p), inclusive, below) is not duly and promptly perforaed or is violated, and such non-performance or violation is not curable, or if curable continues for a period of thirty (30) days after written notice thereof from Mortgagee to Mortgagor or Borrower, provided, however, if such non-performance or violation may not reasonably be cured. within such thirty (30) day period, an Event of Default shall not be deemed to ba,ve occurred so long ,as Mortgagor or Borrower shall be diligently and continuously endeavoring to cure same and such cure shall actually be etfected within a reasonable length of time: ny representation or warran , ,~,Groun ,Loan Document by or on behal( ~f ~ortgag~r, Borrower...~~;'la:ny ; 'Guarantor is at any time false, misleading, or breached,~' ". · -,. '. '(, '-:.. (d) Judgment. If a final judgment for the paYment of money is rendered against Mortgagor, Borrower or any Guarantor, and the same remains unsati~~ied. ex<?ep~ for such period of time as execution on the judgment is effectively stayed (provided however, that if as to any such final judgment, paYment or performance is bonded or otherwise guaranteed, then a condition of default shall not be deemed to exist)J (e) Voluntary Bankru~tcv. Etc. If Mortgagor, Borrower or any Guarantor (i) is voluntarily adjudicated a bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver or trustee for itself or for all or any part of its property, (ii) a files a petition seeking relief, including reorganization, arrangement or similar relief, under the present Bankruptcy Code or other similar present or future applicable laws of the United 24 effect as if the date of s~~h d6claratio~ ~ere the dat3 ~rigi~~:ly specified for the full payment or maturity thereof. (b) Mortgagee's Right to Enter and Take Possession. Operate and Apply Inco~e. (i) Mortgagee may demand that Mortgagor surrender the actual possession of the Mortgaged Property and upon such demand, Mortgagor shall forthwith surrender same to Mortgagee and, to the extent permitted by law, Mortgagee itself, or by such officers or agents as it may appoint, may enter and take possession of all of the Mortgaged Property and may exclude Mortgagor and its agents and employees wholly therefrom. (ii) If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or order conferring on Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession to Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. (iii) Mortgagee may from time to time: (A) continue and complete construction of, hold, store, use, operate, manage and control the Mortgaged Property and conduct the business thereof, (B) make all reasonably necessary maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional Fixtures and Personal Property; (C) insure or keep the Mortgaged Property insured; (D) exercise all the rights and powers of the Mortgagor in its name or otherwise with respect to the same; and (E) enter into agreements with. others (including without limitation, '. a new ground lease, new Subleases, or amendments, extensions, or cancellations to existing~ Subleases) all as Mortgag~e from time to time,maydeteraine in its sole discretion. Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney in fact which appointment is coupled with an interest, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney in fact, to do any and all acts and execute any and all agreements that Mortgagee may deem necessary or property to implement and perform any and all of the foregoing. ,~, -:~ i~. '""' - ~'1i~J .^}'- .:. . . - . .""~ e.' . .~ " r (iv) The Mortgagee' aay," 'with or without taking possession of the Mortgaged Property as hereinabove provided, collect and receive all the Rents therefrom, including those past due as well as those accruing thereafter, and shall apply the monies so received first, to the paYment of all costs and expenses (inClUding, without limitation, reasonable attorneys' fees and expenses) '~1nQux:~edl.by Mo~gagee. a~~. ~t~ ~~ents in connection with the col~lection. Qf:;. same, ,.~~~,~h.e,r"i or:" nq~t,!n possession of; 'the " Mortgaged. i f. J:~pe~y , and s.. e.qond" -J",n.,/-. ~ sucli 0.. rde,r, , a.. s. ,> ,Mortgag~e may '.::ele~~,; ~Qth,e ~aYDteP7 of.1;~ p~f,~9.ft:;o!',':~;;;:;'ed 1.lilijtiil: '>' .i;:";~ :'1. -) $._"" t>tf,t. 'l"~:-<i ,.i.trl1t of the or. . '-:...-..j. "', .~""', - .-,., ,(0) 1 Proceedings to Rec9ver, Sums Due: -.-- lt~h~:. , :,,:. .: -:'.;~f Ci'r' . , ".._1"-. '.. . ....- ..).-:' ~. ~ (1) If a~y in~tali~e~t' ot~p~rt:-- of any ObligaiIon shall fail to be paid when due, Mortgagee shall be entitled to sue for and to recover judgment against the Borrower for the amount so due and unpaid together with all costs and expenses (including, without limitation reasonable attorneys' fees and expenses) incurred by Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate as of the date incurred by Mortgagee. All such costs and expenses shall be secured by this Mortgage and shall be due and payable by Borrower immediately. (ii) If Borrower shall fail to pay upon the 26 8.6 Proof of Claim. In the case of any receiversh~?1 insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, seizure of the Mortgaged Property by any Governmental Authority, or other judicial proceedings affecting the Mortgagor, Borrower, any Guarantor, any endorser, co-maker, surety or guarantor of the Obligations, or any of their respective properties, the Mortgagee, to the extent permitted by Law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have its claim allowed in such proceedings for the entire unpaid Obligations at the date of the institution of such proceedings, and for any additional amounts which may become due and payable after such date. , " .. : il-...'i'-) ",,': ;:: ,\-,tr-fj'l.~ ,/), \" - 'v . -,,,,,-. -, ;:' -".!:r< ," ",. ^ ~''''''. _7-~ ""'Ii1 ;1. ". c";_'" dl ....".\.. ~.".' ~ "."'~..,;.:!''''.f;V6.f'~~')~;-:'~ a sIn e Mortgagor and se, for themselves and anyone claiming through, by, or under each of them, to the maximum extent permitted by the laws of the state of Florida: (a) all benefit that might accrue to Mortgagor by virtue of any present or future law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof from attachment, levy or sale on execution, or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for paYment. (b) unless specifically required herein, all notices of default, or Mortgagee's actual exercise of any option or remedy under the Loan Documents, or otherwise, and (c) any right to have the Mortgaged Property marshalled. 8.8 Ap9lication of Proceeds. The proceeds of any sale of all or any portion of the Mortgaged Property shall be applied by Mortgagee first, to the paYment of receiver's fees and expenses, if any, and to the paYment of all costs and expenses (inClUding, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee together with interest thereon at the Default Rate from the date so incurred, in connection with any entry, action, or proceeding under this Article and, second, in such order as Mortgagee may elect, to the paYment of the Obligations. Mortgagor shall be and remain liable to Mortgagee for any difference between the net proceeds of sale and the amount of the Obligations until all of the Obligations have been paid in full. 8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded to enforce any right under any Loan Document and such proceedings shall have been discontinued or abandoned for any reason, then except as may be provided in any written agreement between Mortgagor and Mortgagee providing for the discontinuance or abandonment of such proceedings, Mortgagor and Mortgagee shall be restqred~o ~eir former positions and the rights, remedies and ~~r~f~~i;~~~f{trI.,~ . ::n~i,JC i; no such proceedings had ,:;;'::..8.10 .., · > ,'. Mortgagee may, at any time without notice to any Person and without consideration, do or refrain from doing 'any or all of the following actions, and neither the Mortgagor, Borrower, any Guarantor, any endorser, co-maker, surety or guarantor of the Obligations, nor any other Person (hereinafter in this Section 8.10 collectively referred to as the "Obligor") now or hereafter liable for the paYment and performance of the Obligations shall be relieved from the payment and performance thereof, unless specifically released in writing by Mortgagee: (a) renew, extend or modify the terms of the Note, this Mortgage, the Guaranty and the other Loan Documents, or any of them, (b) forbear or extend the time for the paYment or performance of any or all of the Obligations: (c) apply paYments by any Obligor to the reduction 29 of the unpaid Cbligations in such manner, in such amounts, and at such times and in such order and priority as Mortgagee nay see first (d) release any Obligor; (e) substitute or release in whole or in part the Mortgaged Property or any other collateral or any portion thereof now or hereafter held as security for the Obligations without affecting, disturbing or impairing in any manner whatsoever the validity and priority of the lien of this Mortgage upon the Mortgaged Property which is not released or substituted, or the validity and priority of any security interest of the Mortgagee in such other collateral which is not released or substituted: (f) subordinate the lien of this Mortgage or the lien of any other security interest in any other collateral now or hereafter held as security for the Obligations; (g) join in the execution of a plat or replat of the Land; (y) join in and consent to the filing of a declaration of condominium or declaration of restrictive covenants regarding all or any part of the Land: (i) consent to the granting of an easement on the Land (and (j) generally deal with any Obligor or any other party as Mortgagee may see fit. ARTICLB XX MISCELLANEOUS 9.l ~aximum Rate of Interest. Nothing contained herein, in the Note, in the commitment or in any other Loan Document or in any instrument or transactions related thereto: shall be construed or so operate as to require the Borrower or any person liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any Obligations, to pay interest, or any charge in the nature of.. interest, in an amount or at a rate which exceeds the maximUB rate of interest allowed by applicable law, as amended from , time to.. time. Sboulcl any interest or other charges in the nature of interest received by Mortgagee or paid by the Borrower or any parties 1 iable for the paYment 'of the loan made pursuant to the Note, or liable for the payment of any Obligations, exceed the maximum rate of interest allowed by applicable law, as amended from time to time, then such excess such shall be credited against the principal balance of the Note or the balance of the other Obligations, as applicable, unless the Borrower or such other parties liable for such payments, as applicable, shall notify the Mortgagee in writing" that the Borrower or such other party elects to have such excess sum returned to it forthwith, it being the intent of the parties hereto that under no circumstances shall the Borrower or any parties liable for any of the aforesaid payments be required to pay interest in excess of the maximum rate of interest allowed by applicable law, as amended from time to time. The Mo~~gagee may, in det~rmining the maximum rate 'of interest allowed "und~~, ~pplicable.law,' as. amended from time to time, take advantage . o(.;:~ny st.at,~.or.:;J;~d~~~I"I~W ,~,~le'or'",r..equlation in effect from time . tQhti~~ ..~h~$,~~Y:9~'{ern the ~a,xtJliUJirate of. ,interest which may be ~ re$9J:Y~<i, diarged or' taken. ... . ").t atB', -, ('" t: n'..' u . . 9.~~} ,urvlyal of warrantiesapd Covenants. . The warranties, repr__s~nt;ati~~~ ;'~qovenants arid. ~9~~~ment . set forth in this Mortgage shall survive the makin9 of the'-Loan ;and the execution and delivery of the Note, and shall continue in full force and effect until all of the Obligations shall have been paid and performed in full. 9.3 No rel'resentation by Mortaaaee. By accepting or approving anything required to be observed, performed or fulfilled, or to be given to Mortgagee, pursuant to this Mortgage, the Commitment, or the other Loan Documents, including, but not limited to, any officer's certificate, balance sheet, statement, surveyor appraisal, Mortgagee shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal 30 the specl:.L-':: t-c..rpose for 'v.:._-'::;1 gl\0n. 9.10 Atilll icable Law. This Mortgage shall be construed, interpreted, enforced and governed by and in accordance with the laws of the state of Florida (excluding the principles thereof governing conflicts of law), and federal law, in the event federal law permits a higher rate of interest than Florida Law. 9.1l strict Performance. It is specifically agreed that time is of the essence as to all matters provided for in this Mortgage and that no waiver of any Obligation hereunder or secured hereby shall at any time thereafter be held to be a waiver of the Obligations. 9.12 Joint and Several Liability. If more than one Person executes this Mortgage, each is and shall be jointly and severally liable hereunder; and if Mortgagor is a general partnership, then all partners in Mortgagor shall be jointly and severally liable hereunder, notwithstanding any contrary provision in the partnership laws of the State of Florida. 9.l3 No Merger. So long as this Mortgage is in existence, the Lessor's fee simple interest in the Land and Improvements and the Mortgagor's Leasehold Estate therein shall not merge, but shall remain separate and distinct, notwithstanding the acquisition of both estates by Lessor, or by Mortgagor, or by Mortgagee, or by any other Person. '.14 AGUB THAT STA'l'BJID1'rS DOCUJlBII'I. ;~,:. '.15 '1'JIB &UK, '!lIB BORROWER AND '1'JIB MORTGAGOR &BUBY DOUBGLY, VOLUftARILY AND ZH'l'BLLZGBH'l'LY nIVE '1'IIB RIGB'l BITBBR KAY Dn ~ A TRIAL BY JURY ZN USPBC'l' '1'0 AllY LITIGATION BASBD &BRBO., OR UZSING 00'1 OJ', UlIDBR OR IN oo"'C'1'ION WI'1'B '1'BIS DOCUNBH'l', AND AllY AGRBBHBH'l' COH'l'BMPLATED '1'0 BB BDCU'l'ED IN CONJUNCTION &BREWI'1'B, OR BY COURSB OJ' CONDUCT, COURSB 01' DEALING, STATBKBH'l'S (WBB'!IIBR VERBAL OR WRITTEN) OR ACTIONS 01' BY PARTY HADB BEFORB, DURING, OR UTBR TIIB BXBCUTION 01' THIS DOCUXBIIT. HIS PROnSION ZS A KATBRIAL ZIIDUCBKBHT I'OR 'I'D BANK BftBWING CRBDIT '1'0 BORRODR. '1'BB BANK, '1'BB BORROWER AND '!lIB MORTGAGOR SPECII'ICALLY 'l'BBY WAIVI ALL RIGB'l'S '1'0 RELY ON OR BlfFORCB AMY ORAL HADB PIUOR '1'0 OR SUBSBgUBNT '1'0 'I'D SIGHZNG 01' HIS . .1' VBlfUB AND JURISDICTION SHALL BB IN DADB COUftY, FLORIDA, I'OR BY AFI'IRMATIVB OR DEFENSIVE LBGAL PROCEEDING ZN CONNECTION WI'1'B '1'BIS DOCUMENT AND/OR AllY OTBBR DOCUNBN'l' SIGNED BY '1'BE BORROWER AND '1'JIB MORTGAGOR IN J'AVOR 01' '!lIB BANK. IN WITNESS WHEREOF, Mortgagor and Borrower have executed this instrum~nt as of the day and year firs~. above ~ritten. . '. IIORTGAGORI Signed,seale4 and delivered in the presenca"'of: ;;;,;:t!1/~, .,:, c ~" . 1 WASHINGTON AVENUE CORP., a Florida corporation. 1 Washington Avenue Miami Beach, Florida ~'+. (. By- s. -. ARTHUR FORGETTE, PRESIDENT/ SECRETARY 32 EO""~,OWER: SOUTH POINTE HOSPITALITY, INC. , a Florida corporation, d/b/a Crawdaddy's Restaurant. 1 Washington Avenue Miami Beach, Florida. By: ARTHUR FORGETTE, PRESIDENT Attest: PATRICIA FORGETTE, SECRETARY HOSPITALITY, Avenue Florida. COUNTY OF DADE ) ) ) ss: STATE OF FLORIDA THE FOREGOING INSTRUMENT was acknowledged before me this _ day of , 1994, by ARTHUR FORGETTE, as President and Secretary of 1 WASHINGTON AVENUE CORP., a Florida corporation, on behalf of the corporation. He has produced as identification and did take an oath. My commission Expires: ENI F. CALVINO NOTARY PUBLIC COMMISSION NO. ":~:-',~~~~';~i- . ,," STATE OF,FLORIDA :~~~~l:.::' COUNTY"OP DADE ;' . CH.1~:t'nrA;..H)4ti~\.t\ 1 ~,):..>. :I '.'_~:"~.~'~:~.'..~;,'-'- ':'.'\0",\ . ) ) ) ss: THE FOREGOING INSTRUMENT was acknowledged before me this _ day of , 1994, by ARTHUR FORGETTE AND PATRICIA FORGETTE, as President and Secretary, respectively, of SOUTH POINTE HOSPITALITY, INC., a Florida corporation, on behalf of the corporation. They have produced Florida Drivers License as identification and did take an oath. My commission Expires: ENI F. CALVINO NOTARY PUBLIC. COMMISSION NO. 33 FR0I1 I SH~ I NES 8. ~"CEQCHERr. TO 113056737002 l.EASllHOLn 1,:,,=,4.1.:J-,,-11 .16:.......-r- _.~.L:;:. ,. .~~ --- MORTGAGE (Partl~lp.tlon) Th!a mortcae~ Made and entered into this d~ 01 March 19 94, b)' and between 1 Weshiniton Avenue Corp. (hcrelnaller rderred I.cJ N mong-.or) and Florida Bu.1nu8 Development Corporation (Mrtl"M~r referred to u monaa..e), who m~nt.ains OJ\ oroce and place or busu\c!lS &l 6801 Lake Worth Road, Room 209 Lake Worth. Florida 33467 WITNESS!:."', that (or the cOMideratlon herelnaJl.cr 5ta~. recolpt oC whiCh Is h~reby acknowledSt'd, the mortgagor do./t herfby mortg.,e. 6t1l, Jr&.lIt, ....,.,illn, Illd convey unto tho monA&gee, his successor. and &lAliNl, All of the following ~.('rIMd pr\)~rt)' litllatpd and being 4n the County ot Dad. St.w.lfl of Florida FOR PROPERTY DESCIUPT10N. SEE SCHEDULE "A" ATTACHED HERETO. THIS IS NOT HOMF.STEAD PROPlRTY. Thi, mOftsaae is subject to a prior mortgage to Ocean Bank. Together wilh and including all buildings, all ftxture. lneludan. hut nut limited to all plwnbtna. hut in" Iighlln., vent1latini, refrigeratin&. lneineraUn.. alr conditioning appanM, and elevatOrS CUlt rnurtaaaor hereby dtelarlnc that It Ia Int.ended that tht ltttn. hertin tnumflratfOd shall be ~med to have been J>Cnn&n'cntl)' Installed as part of !he ruhy), and aUlmpro\'tmenla now or Mreafter uistinl tMNOn; lht hort'dltamenLl and appur\enMc-n and all other rip'" tMreunto belongln&. or in anywise appcrta1ninc. and the' r"version and rt'v'n1iona, remai~r alld remainders, all rl&hta of ~mpuon, and the renw.Iaut'S.1lICI pronu ohhe above dc~ribed ~ny (provided, 'lOwt"vt'r. \hat ~ mons.,or shall be entitled Ion \he possetslon of aaJd p'roPf~ and lO tOl~ct and ret&1n the renta, lIaue..lI\d pronta until d"tault henunder). To hA\'t and to hold the lam. unco the mo~ee and W IUecetlOft In inter.at of the monpcec forever in fN 'lmp~ or .uth other estate, at an)'. u 11 aWed here an. The m~lior covenantIJ that tit l.s l.wtuUy aelzed and possessed o( Ihd has the rlcht to ~U and convey aaid prope(1)'; that l.he .ame It tree from all encumhran<<s ncept u herelnaboYt redtedj and that he hereby binds himJell' and h1a IUCC.MOra In inU'rest to wan-ant and dolend the title aforesaid thereto and eveI)' part thertOf agNR5t the claims or all penlOna whomlO~v~r, ThiS instrument is liven to lCCurc the payment of a promil$ory note dated M.rch, 1994 rrlneipalsumo(S 1.000,000.00 'lanedby Arthur P. Fors.tee, President in behatror both South Pointe Hospitality. Inc. and 1 Washington Avenue Corp. in the: SBA FORM 028 (1l-8S) USF. 2.78 EDITION UN1'1L EXHAUSTED EXHIBIT lIell FkOl~ : 5Hl=l1 fJE5 8. MCEl=lCHERN TO I 13056737002 ~'=,':l-' ,,-:~-..L.i ..~.....:::>r- Said I"umlSSOI')' nol.(' ",'as Blvtn 1.(1 ~(,llrt . luan In which Ull! Small liuslnc!;.(j AdmlnllU'.tion, an &g(,II(,)' uf the Unil~ Sl.lt~1 of Afll4!rica, hM l>II'ticiplt~. In tonlplianC(,l with ll\'cUon lOI.1(d) ur the ItUItA and Re,l!laUonA or the Small Ru,lnQ6$ Admhlilltratlon I J 3 C.F,R. 101.1 (d)), thi!; imlt ru~nlls lO tlf' ('onlilrucot1 and ."fOfted Itl .~ordanee wiLt. AI"plicablc hd('ral hlW. I. Th~ mon,flIor roV('nanlS alld ~. u rollnw.: a. Ht' wllll"romlllly '.)' the! Il'Id~b\.('d'll'Ht1 evidenced h1 l'/lid prom~ry nol(ll\\. lh(' times IlOd In thf' manlier Ulcrclh providt.od h lie will 1'Ill)' Mil \.ale.... &.~~AAtllt'nt.s, watel' ral.Ni, Md oUlcr lCovnnrncntal or municipal duU'gt'~. nnes, or inIJl(~itions, ror which JlNvi"inn ha... not llC'C1l madt' h('~lnh4>((trt', and wlll ptOtlll'tb' deliver lhf' ullki&1 rc<:clplJl thE'rt'for IOUit' 1lllk1 mOI1ga,cc, C' HI' will J>~ rilJ('h expense. and ft't'tI 85 ma)' lw Incun-~ In Ule 11t0le<'lIon and rnalnt.t'nancc (If lH:Ild proJ'l<'rt)', IIIcludinfl UI(> fees of any lltlornl~)' *,mplo)'td by the Illortgagce for th~ cullection or In)' or all or Ulc indebtl'ctrH'SS hc:rl.'ll)' tlccured, 01 fOlt~c1o'utt l.)' mu~agC't'l'fl8l\lc. (If C'OUr1llf(l("E'E'dingfl, or In any other IiliSlilion or proceeding .rrecUngt;ald ptoJlt'rt)'. Atu>rnc)'" rt"C.,,, rta.~llulhl)' il'CurTed In any other way &hall h(> paid by UIC mortgaaor, d. For bf.~t ~rh.>' or tht lndebtOOl1eSf hereby tecured, upon U\C request .of the mong.,ee, Ita eucceaol'l or &t8lgna, he .le.U ex~tt and deliver a supplemental rnortgaae or mor1881~ covel'ln& an)' addlUonl, Irnprovementa, Ot bettfM'l'\tnta made to IN l'roPtrty hcr-c1naOOYe detertbed and all proper\,y acqulTed by it after the date hercol (allln lonn Mt18tactol')' \('I MortIaaee). Furthennort, .hould ~or flU to CW'tl any dctaullln the pa.ymcnt or a prior or inferior encumbrance on \he property deacrlbed hy th1e lnstnunent, mortaalOt hereby ~ to pennlt mort&8lee to cure IUch default., but mortla&ee is not obu,ated to do 10; and eueh adVallCes ,hNJ become Jl8l't or the lndebtednee8 ~ b)I thlIlNttwnent, eu~ to the aarne ~nna and oond.lUona. t. 'Ihe rigltt.tt cre.ted by &h1A convtyancc sha1l rt'maln In run fora and .treet c1urIhI MY potLpont!ment or cX\ervdon of the time of the payment of the indeb~neaa evidonced b)' said prornl9tot1 note or an)' pw\ thereof MCUI'f!d hereby. /. n~ wW conUnuoualy malnWn hazard If\8lU'InCe, of IWch type or typcI and in such amoun!.e 118 the mortgag~ may from tinM to tlmt Nquu" on the Improvement. now or ooreaJ'Lcr on e.ald propert)', and wtlJ pay Proml'll1 when due &II)' prtlt\iWN thereor, AU INw'ance IIhaII be- cAnied in (;ompanles acceptable to monc.,ee and tht poIklu and ren~wa1e thereof .halI be held by monpaoo IUld have attaehed the...to ION ~&bIP. cJausea In ravor or and In form ICOeptable to th4l m(l~, In event of 1~, mortgagor wUJ live bnlnedl~ notice In writJng to mor\l~, and mo~ may makE! proof 01 10M if hot made prornptJ)t by mortgagor, and each In8urtnct! company conoerned as hereby authorized and directed 10 make payment ror eudt 1018 c1irecUy to mot18ll8foe Instead of to tnoftCaIor and rn~ Jolntlf, and the lMuranec proc.eda, or N\f pu1 thereor, may ~ applied by rnort~ at Iw option either to the reduction at th~ indebtedneaa hereby ~\U'Cd or to the reetOriUon or repair 01 the PI'OJIl'l'ty dama8ed or dealro)'E!d. In ewnt or foreeloeure of U\Ja mol16., or other &ransIer of title to said propcrt)' In e~nt or thE! lndebt.cdneu It:Cured hKeby, all right, title, and lntctellt ur the mortgagor In and to II\,)' lnauranee polic:let then ill rorce aha1J pasa to iN j'lUtChlUlel' or rnortI'8oo or, at the option of dIe mo~, may bf.llUI1'ehdered for a Mfund. ,. He wlU keep all buU<IlnI& ud other Improvcmenw on NJQ proper\)' in good rcpe.Jr and condUJon; wW permit, oomrnJt, or ,uner llO "'U~, Impalnncnt, deterioration 01 MId ItrOpert)' or II\,)' J*\ thereof; In the event. or rallure or the mor1Ia&OI' to keep the buildings on Mtd ~embet and thOAe e~ on wd p,..mlsH, or ImprOvements Chttton. In toad repair, the m~ may make tueh repa'"' N In "* d1&ereUon It may deem heCeMAr)' for the proper prtHl'Yldon th..reofj and the t\aII amount of ea<<'h and every .uch paymmt shaD be ~Ial.eb' dIM and pafable; and IhaII be It"~ by the Uen or this mon,age. h. lit win hOt volunlarU)t tre~ or pcnnk t.o be erHIed aga.Invt 1M propert,)' .u~ to this m~ &J'\)' lien 01' Ilcnelnferior or IUpenor to the lien of tNa moncatt wlthoul the wrt~n ~oneent of 1M ~08C'C; and further, that he wW keep and rnIlntaln the aame fI'M from tJlt' da1rn of 111 pel'tONl tlUPPb1ntC labor or materials ror CONtructJon or II\,)' and aU bulldtnp or bnprovement. IIOW being ('reeled or to be erfICt.fId on ...d prch\bea. I. Ii~ wiD 1l0{ tent Ill' NSlgn any part of tht ~hl of Aald mol"tiastd proper\.)' or demoUIh. or ~, or aubstal,Ually alter any building without the ~n <<)n&cml of Lhe ~, J, All awards or damaaes in connection willi an)' condemnation for J.lubUc UJC or or bijW')' 10 &1'1)' or Ult IKUSM!l1)' subject to this mortgllt are hertby asstencd and shaJl M paid to mOl"tplee, who lna.y AI'p)r ~ eame to p&ymf'1l1. or thl! ~nlB lut duf' under MId no~. and mot't8a,gf:~ Is htoreby auUlOriud, in tM name of !he rnortg8l0l', to e)Ceeule and deliver valJd acquittance. tMrE!oC and CO appeal from II\)' Auch award. k. Th~ m0l1l8lee llhal' have the rtght to inBptlct th~ rnon,aged PftmlM. at II\)' rcaaoNlbI~ tlrne. 2. OdllUlt in any or the tOY~n&J'!.e or conditions or this instlumenl or of Ihr. naif Ot loan &gnot!rn~nt Hewed hCl'olJ)' ....." ~rmlnatc tilt tnurt6lior'. "Sht to po~ use, -.nd el\Joyrnen.. or the propcl1)', al thP. (lfltlon 01 the mot'\IIIef or hi. &.CWIlgrw (n. ~b\8 a,reed that the mongagor Ahall ha~ JUch right until dt,~tt). Upon IIl1 Auch default. the m(Irt.g~ IhaU become 1M owner of all 01 \11(' tt"nta and profits BCcrulnJ alter df'fault as ~urity for the IndeWdncss IlCMltt.d hertb)', with the riCht to enter upon eald propcrt)' for the purpose of ooIlrctJng such rents and prontll, This lnslNmcnllhaD optlratf IS an assignment or tJ\)' rentaM Oh eald property to that ex~nL MA FORM 928 (11-86) ~ROM ISH~INES & MCE~CHERN TO I 13056737121(2)2 1994 , 03-11 12146PM ~825 p,04/06 a. 'ftK' mor\g8for coVfnanLt and IIrCt. that It ht. ,hall r.u to pi)' said IndcbtednM or any 1J8tI.lhel'f.or when du~, or .hlll r&ll to perform any eoveJWIt Or ~"",nl of this Instrummt or the pt'('m~ no~ ..cured hereby. the entire lndcb....dnets hereby te(W'td ahaD ~ become due. payable. and coUccUble without noUct', If the option onhe mor1g"~ or ....Iina. rtprdle&l of m&tW1~, and the morteaaH or his aulps ma,y bttore or alter cnll)' MU aid proper11 WlOI()Ul afIl'ralat'ment (the morta.,or ha\1r\1 walwd and ...lgned to the mot'1.illtf all ri<<hlA or appralA('lnenl): (I) III JucliclallJaJe pwluant to the proYbllorw of 28 U,S,C. 2001 (a); or (10 at tho op\,Jon of the mortg.,cc, either by auction or by eoUclt.aUun or eetlled bids, ror the h1ghP.llL and best bid compb'tnl With the W'nuI or we and manner or payment IpCCllIcd In Ow publblhed noUee or Ial.. ftrtt Jiving lour w\!ek,' noUce or the time, krml. and place 01 wch ale, by ~rtJsement not Ie.. than onee dw1ng each 01 &aid rour wceklln a I\cwapfl&)er puhllAhed or d1Itr1buteclln the count,)' In which said propen.)' ... .Ituated, all other notice helng hf.reb)' waived by the mol1laaot (and aid I'nortg.gee, or at1)' pehlOn on behalf or laid mo~~, ~ bid with the unpaJd IndcbtcdncM cvldenc&d by a&ld nt'Ic..), SaId eat" &hall be held at or on the property toO be sold or at. the Federal, c:OW\ty, or elt)' co\1l"th~ for the count)' lI\ whl(!h the pt'OJ.e11f 18 I~ 'nle mo~ 11 heteby authorUed '-0 execute tor and on behalf' or Ute mOl1Cqor Md to deUver to thc purchaaer a1 tueh tale . sufftclent eonVEl)'Met or ~d property, whJcl\ conve)'&nce tlhaJl eont.a1n reclt&14 " to the hawelllng of tM deflLlk upon which the exec:uUon or the power or salt hereln ,..-.nted de~nds; and Ule ea1d hlort4(lIIlor hereby eoMUtute8 and appoln.. thf. mo~ or an)' ~nt or attorney of the mort<<agM, the .,ent and Ittonlc)' in fact of &aid mortgagor to make IIUC'.h reett.a1a and to execuU Mid conve)'tllCC and hereby covenantJI and ~ thl\.t the recltals.o madc .haU be etre<:tuaJ to bar a11f!QU1l)' or ~t ot redtmpdon, homf:atead, (Sow('r, and aU other exempUonl or the morta~or. aD of whld~ art. hereby t.XprelSly waived and oonve)'8d to the mon,a,ee; or (III) take an)' oth<< approllrialc' QrtiulI 1,,,rHuMI to tillite or ~'cc:k:ral S~IUl(' t>il.hrf ill IIJUt' ('), ~'NJI'nd I'llurt or lltherwi~ for the dlspotitiOn of th<- Pf'UP('f1y. In Lhe evrnl nf a Mitt lUl ~rt'lnb(>fl)r(' IJrovidrd,UIt' "'"rtgllgor or ~ny l'el'VoNlln l~t>5Ion uhdcr th(' 1l\(')n,Kgor Hhan thell bt'('om~ and be tenants holding OV(,f and shall lurthwith d('liW'r (lMS('lllllon to the rurt'lwcr at IlUch $alt' or br lIummAJ'i1)' diAp(ls.~f'U('d, in .coordanct with the provision!' of lAW IlflPlltflblt. to tf'llantl holdllli over, Tht" poWf'r and agt'llr)' hE'rf'by eran~d arc couplrd with an In\.efe8\ atld are Irrevocable by ckath or oth('rwl!lt, and arc cranttd u ("umul.tive to tJlf' f('mC'dip" for ClIllt'l'tiun of said Indebtedness prcwided hy la.. of, The prOCftdt or any Naito or Mid propt>rty in I('cotdan('l' with the Ilt4Wl'ding 1"""lIf~I"\lJ lIhan bo applied nt8t to ~' the ('0$\5 and e~. or Nld Ale. t.M e~nAe.in~ulTtd by th(' mortC.,t>e fur thc purpose of protecting ur maintaining IlAid f\roptol1.y, and rt'uonablc .ttomC)'I' leea; IeCOndly. to IJII1 thr Indf'hl.ednt'f\S NCuri.'d hereby; and thirdly, lU pay any 8W1lluH nr ~X~f1Al1 to tht> J'lC!'r60n or pereons lee-Dy entitled 1hertt.o. 6. In the event. AaJd Ilrol~rty Is IJOld at a Judlt'laI ron'closure ..Ie or PU n1U&l ,I, 1.0 Olt' JlO"'t>r or Nit, hereinabove granted, "td UlC proceteb are not IAdnclent to PlY tM I.otal indl'htC'dnl'SS &E'('ured by this Instrument and rvid"n('(>d h~ ARid I'romluo.." note, tht monps.. wID be entitled 1.0 a den("icncy judement for the amount or the denclcn~ without (('lard t.n apprailll'nlflttt, 8. In the ewnt th(' mone8&<< talls to pay any F'~ral. ltat.t. or lucall&x UIlf!lIIlmf'nt. lIK'Oftl(l tax or othcr t4k lien, charlc, ree, or othtt txpeMe c:har8ed agalnllt th(- property tht' mortgagcc is hereby authotaed at hill option t.n pay th(' Nl11t'. Any sums 10 paid by the monpl" ,hall be added to and btcom~ a pari or Ult' principal amount or the lndebtedntts evidell('('d IIy gid lI(tI(.. IllIhjt'(,t to the Arne \ennI and eoncSklons.1t the mortgagor AbRIl pay and discharge the lJ\dcb\edncas Hiden<<d by said prclml~ not.to, and tohall pa)' .uch auJM and IhaJJ dilcharge aU taxa and IIcns and thf' ~OIItIi, IfH. end (IJqlenSH or making. cn(()N'ing, and t'lIp('utll1' thl. mof1la8e. thcn this ft'lOI1PIf IMD b(o c.anN!JN and llUlTetldered. 'I. The covenant6 hercln cOhta111cd 8"&11 hind IU1d 0,(' ~n(lnU .nd advant.ateS Ihall inur(' to Ul(' I'CSPCCUVl' IlU('('t!MIlUN! and AMlaNI 01 1M parties herfto, Whenever used, the Ilngular number shalllncJude the plural. thr plural th(' singular. and th(' UIIC' ur any (I~nd~r .haD Ihelude aD tende.... 8, No wlJveor or any coycnant hercln or 01 U\(' obligat.iollllecured hereby Ilhall AI IlnY Um.. thcrel'ft-et b<' h('ld to be . WaJ~1 of tllC tcrml hereor or 01 the hOlf ~red hereby, 0, A Judlci.J decr~. ord~r. Of Judgment holding any provision ur portion pC IhiIllnlltrumt>nt IIIvalld or uncnforrclblc shaJlnot In JUlY w&)' Il'I'\f\aJr or preclud.. the enforcement or tM rcmJininl provtslonl or portiONl of t.hl" inRtnlmt't1t.. 10. Any writIen noUc(, 10 he ~ur.d In the' II,m1gllg(1f'11u",uant to t.ht provl&loN orthlt lnttn.llnont. .hall be' addr(!AA(~ I." U", mortga<<or at 1 WS8hington Avenue. Miami Buch, FL 33139 endany~twInotlcctobcWlu(!dLiIUI{'1ll0r1.8~HllhaJl bfaddtHSedtotMmol1lC~.t 680] I.ah Worth Road, Room 209, LAke Worth. FloridA 33467 JO(a) Transfer of the Property or . Bancfic181 lnt.r..t in Borrower. If Rll or ~ny part of the ~roperty or any intere.t in it 1. .old or tran~ferr.d (or it ~ Bcn~!1c181 Interest in the Borrower 18 ~old or transferred ond Borrower 1a not A nfttur~] p~r$on) without Lend~r'8 prior writt.en consent! Lender. may, at its option, Te~u;frc immediate payment :in full of All $ums eecured by thie 3ecurity lustrument. However, t~ie option shall nnt b~ ex~~c1s~d by Lender if cxcre15e 18 prOhibIted by Federal Iftw~ ft. or thA d~t~ of tfi1A Sccur1ly Int~T~.l. SBA FORM 928 (11-85) 'U.S.GOYIr""'~1 'n~Mg OII.e. 11l9l- 23'.l108078010 FROM ISH~INES & MCE~CHERN TO :131356737(21(212 1994.133-11 1,.:;.:....0.,-1. ...~.&:.= ~ IN WJTNk:SS WHERf:OF, tho mort.aaor hu extlCut.ed tbJ.ln.Lrument and tho mortaQiGO baa accepted deUvClry of tide Inetnunent. at of the day and year .toroeaid. 1 Washington Avenue Corp. ..It.......t................... ................................ 'A~~h~~' P:' 'F~~.g~.tt-~ 't" P~~~iden't"""""'"'''' ' Exce\l~ and dcUvc:red in \he pretence or the tollowtnl wttJ\CMCA: .....1.,.................1111..........1.....11...,...,......... ........111....'11.....'......'"11.............................. (Add Appropriate Acknowledtment) STATE OF FLORIDA COUNTY OF !EFORE ME, the undersigned Authority duly authorized to toke oath I and aeknowledgements personally appeared Arthur P. Forgette to me known and acknowled8~d to and before me that he executed 80id 1nlit'rument for the purpose therein contained on behaH or 1 W..hinaton Avenue Corp. Ka 19 personally known to me or has produced .a identification and did/did not take an oath. WITNESS my hand and official leAl in the County and State last aforesaid this dAY of Much, 1994. Rotary Public/State of Florida COIlDli.ssion No. Commission expires: c:: 0 -.04 '0- ... ~Q <<l &..N toI .0 &. .(.) 51- l"- . 8'\0 ... . .., , ..r 8g · c:I M'M ... tr"'t ~ D"; I ..: ~ UN .. 1Il. "CI. i~~ ~ w.o !.~ ~ ,~ . . ... U pc:. 'r'i 0- e N.> .", ~ ... j:lfCM u. U ,c' 0 0 0'1 ~ I'" = ~.o ..,.~ v M !II .. ~ .r "'."" 00004 >'9 ~ '. ' GlUM ~ ~~~ I. &. #e :J ::t M U'II ',.: !!~ ~ ... fn:t:l J:~ ~ lit '" ...... .'rl ... =.d 0 ~ .. lit ClI.O &.I~ lit. :::t ~.:E gg,C' ~~r... .110 · 0 '0. -' CU loll 3 .. oPl. <<l O'~ '" '" u .s J::. = I ~.~~.~ . IlOClOI II '.... · . ~ ~ Il~t ~'k · . ...c....1Q :~ I . .c::..c: ~ ~ . ~:i . . "'... . ~! . 00 ~ ....cHi ~~~ FROM ISHAINES & MCE~CHERN TO 113~56737~~2 l'3'34.IZIS-11 .l.':" _, r' I ...'-'......--- . -- EXH~lT A/sCH!nULE A ., Commence at refQrQnced Honu11\ont "C" and run S 65' 36' 16" E a10nq the Northerly line of SOUTH POINTE PARK, a diatance of 697.0~8 teet to a Point of Interseotion (P.I.) with the state of Florida, Depart.ent of Natural Re,ouroes coastal construotion Control Line; t.henoe run S 10.23'21.8" W along the coastal Construction control Line, a distanoe ot 382.005 t.et to an intersection with the Northerly line ot a 50.00 foot maintenance eas..ant tor "Government Cut;" thenoe run N 65'35119" W along the NortherlY line ot said Maintenanoe Easement a distance ot 59,74 teet to the point of Beginning (P.O.S.) ot the Resta\lrant aite: thence continue N 6!5'35'19W along the laat mentioned oourse a distance of 160.00 teet1 thence run N 24'24'41" E a distance ot 100.00 teet1thence run S 6"3"19" E a distllnce ot 160.00 feet' thenoe run S 24'24'41" W a distanoe of 100.00 teet to the Point ot seginnin;. 8.id lands lie wholly within the followinq property desoribed .a foliO".: For the Point. of Be9innin9 oommence at a 10" square concrete monument located on the northerly boundary of the U.S. Corp. ot En<;Jlneers Reservation, bein; on a bearing ot South 6S.l3' E..t., and a distance of 16.62 teet from the WQ8ternmoat eorner ot Lot 6, Blook 4 otsouth Beach Park Subdivision as shown in Plat Book 6 at paqe 77 of the Public Records of Dade County, Florida, said monument designated "C" havin; ooordinates of X-784,440.39, and Y- 521,912.47. Said lllonument also 118&1 approximately South 24-27'26" W a distance ot 592.30 fe.t South ot, and North 65.36116" East, a dist.ance ot 554.97 teet west of the northeaat corner ot the northw..t 1/4 ot Section 10, Township '4 south, Range 42 East. From sa.id point of be9innin9, thence run alonq the northerly boundary of said land SO\lt.h 65.36'16" East, passin; throufih a monument dellignated "A" at a distanoe of 713.87' a total distance of 1,416.52 teet, more or 1..., to it. interseotion with the erosion cont.rol line e.tablished for the Miami Beach renouriahmant projeot as shown on Da4e County plat rile Number 24-5342-12, Sheet 1 of 14, dated July 2', 1977' thence run South 23. 41'12" East along said erosion oontrol line and its extension, a distance of 630.14 te.t, Jaor. or less, to the Mean High Water line ot the nor'ther1y .horeline of the "Gov.rnmen~ cut" tor the entrance channel ot Miami Harbor: run thence northwesterly alonq said Mean Hi9h Water line on an approximately bearing of Nort.h 65'.35119" West, a distanoe ot 1,945.66 teet, more or less, to a point on the lnGan high WAter line which lies South 24. 25' 50" west, a distance of 50 feet, lIlor. or less, from U.S. Corps of Engineer. monument "Wi9;ins"J thence run North 24'25'50" East a distance of 50 feet, more or less, to ~onum.nt "Wi99ins"J thence continue North 24.25'50" East, 370.43 feat to 1ll0nument "e" and t.he point of Be9inninq. LYING AND BIXNG XII DADI COUll'l'Y, :rLORXDA. FROM ISH~lNES & MCE~CHERN TO :13~S6737~~2 1 ~'34 . iZU - ~ ~ BIDE~ ("~~~"~~~:,!;RHOI D MQR'j'OAOl! {"Morteaae"} tfRm I A AVENUB CpRP, ("Mort~8'Qr") TO F A BUSINBSs DBVELOPMENT CORPORATiON The said Mortgagor hereby covenanls with said Mortgagee. that the Mortgagor is the owner of 8 leasehold interest in satd property and the improvemenls located thereon by virlue or that certain Lease (hereinafter referred to as the llLeasoll) executed on the 8th day ofPcbruary, 1985, by and between Specialty Rcataurants Corporation. as Lessee. and The City of Miami Beach, as Lessor (The City of Miami Beach hereafter referred to as the "Lessorll). Said Lease has been assigned by specialty Restaurants Corporation to 1 Washington Avenue Corp. by Assignment of Leasehold nstat.e executed by and between said parties on . Said Mortgagor has full power and lawful right to convey. transfer and mOrlgage said leasehold interost; that it shall be lawful at any time hereafter for the Mort&ftior to peaceably and quietly enter upon, have, hold, and enjoy said property and every part thereof: that said land is free from all liens. encumbrances, and claims of any kind, including taxes and assessments: that Morlgagor will make at Mortgagor's expense and at no expense to Mortgagee such other and further assurances \0 perfect the leasehold ownership to said land. fixtures and personal property as may hereafter be required; and that the Mortgagor hereby fully wa1Tdots unto the Mortsaacc the title to said property and will defend the same against the lawful claims and demands of all persons whomsoever. IN WITNnSS WHEREOF, this Rider has been executed on the date and year set forth below the partles. respective signatures. MOR'rOAOOR: 1 WASHINGTON AVENUE CORP., a Florida Corporation , ny: Arthur P. Foraette, President Wilness Date: - Witness MORTGAGEE: FLORiDA BUSINF.-SS DEVELOPMENT CORPORATION lly; David M. Schwartz, Vice President Witness Date: Witness FROt~ I SH~ 1 NES 8. 1'1CE~CHERN TO 113~S6737~~2 1994.~3-11 12:~b""'Tl ...,~.c:=. r ......- --- STATE OF PLORIDA COUNTY OF BBFORB ME. the undersigned authority duly authorized to take oaths and acknowledgements, personally appeared Arthur P. Forgette, to me known to be Ule President of 1 Washington Avenue Corp.. and he acknowledged to and before IDC Ulal hc executed said instrument on behalf of 1 Washington Avenue Corp. for the purposes therein contained. He is personalty known 10 me or bas produced as idenlification and did/did not tAke an oath. WITNBSS my hand and ofticial seal in the County and State last aforesaid thls - day of March, 1994. Notary Public/State of Florida Commiuion No. Commission expires: ST A 1'8 OF NBW HAMPSHIRE COUNTY OF ROCKINOHAM BBFORB ME. the undersigned authority duly authorized to take oaths and acknowledgements. personally appeared David M. Schwartz to me known to be the Vice President of Florida Business Development corporation. and he acknowledged to and before me that be executed said instrument on behalf of Florida Business Development Corporation for the purposes therein contained. He is personally known to me and did nol take and oath. WITNESS my hand and official seal in the C.ounty and State last aforesaid thIs - day of MaTch, 1994. ~ . Notary Public/Stale of New Hampshire Commission No. Commis~iol\ expires: