EXHIBIT 10.18
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DATE: APRIL 30, 2003
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Return to:
Emmet, Marvin & Martin, LLP
120 Broadway, 32nd Floor
New York, NY 10271
Attn: Irving C. Apar
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SECOND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
DATED AS OF APRIL 30, 2003
GIVEN BY
NAP OF THE AMERICAS, INC., A FLORIDA CORPORATION
MORTGAGOR
FOR THE BENEFIT OF
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
MORTGAGEE
SECURING THE ORIGINAL PRINCIPAL SUM OF
FIFTEEN MILLION AND NO/100 DOLLARS
($15,000,000.00)
NOTWITHSTANDING ANY PROVISIONS CONTAINED HEREIN TO THE CONTRARY, THIS MORTGAGE
AND THE LIENS CREATED HEREBY ARE SUBJECT TO AND SUBORDINATE TO THE LIENS OF THE
SENIOR MORTGAGE AND THE OTHER SENIOR LOAN DOCUMENTS (AS SUCH TERMS ARE DEFINED
IN THE FOLLOWING DESCRIBED SUBORDINATION AGREEMENT) PURSUANT TO THAT CERTAIN
SUBORDINATION AGREEMENT BETWEEN MORTGAGEE, MORTGAGOR, OCEAN BANK AND TERREMARK
WORLDWIDE, INC. DATED APRIL 30, 2003, TO BE RECORDED IN THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA SIMULTANEOUSLY WITH THE RECORDATION OF THIS MORTGAGE
WHICH SUBORDINATION AGREEMENT IS INCORPORATED HEREIN BY REFERENCE AND MADE A
PART HEREOF.
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NOTE TO RECORDER: THIS INSTRUMENT ENCUMBERS LEASEHOLD INTERESTS WHICH ARE NOT
INTERESTS IN REAL ESTATE PURSUANT TO THE CASE OF AURORA GROUP. LTD. V.
DEPARTMENT OF REVENUE AND IS NOT SUBJECT TO THE NON-RECURRING TAX ON INTANGIBLE
PERSONAL PROPERTY.
TABLE OF CONTENTS
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1. Granting Clauses.....................................................1
1.1 Mortgage...........................................................1
1.2 Security Agreement.................................................4
1.3 Fixture Filing.....................................................4
1.4 Loan Documents.....................................................4
2. Representations, Warranties, Covenants and Agreements of Mortgagor...4
2.1 Payment of Indebtedness............................................4
2.2 Title of Mortgagor.................................................4
2.3 Operation of Premises..............................................5
2.4 Payment of Property Taxes..........................................5
2.5 Contesting Property Taxes..........................................5
2.6 Insurance Coverage.................................................6
2.7 Policies and Premiums..............................................7
2.8 Payment of Insurance Premiums......................................8
2.9 Project Insurance..................................................8
2.10 Leases.............................................................8
2.11 Environmental Compliance...........................................9
2.12 Casualty..........................................................11
2.13 Condemnation......................................................13
2.14 Restrictions on Alienation and Further Encumbrances...............15
2.15 Construction Liens................................................16
2.16 Easements and Restrictions........................................16
2.17 Equipment and Equipment Leases....................................17
2.18 Records and Accounts..............................................18
2.19 Reports to Mortgagee..............................................18
2.20 Mortgagee's Due Diligence.........................................19
2.21 Reimbursement of Expenses.........................................20
2.22 NAPA Lease........................................................20
3. Events of Default and Remedies......................................25
3.1 Events of Default.................................................25
3.2 Acceleration......................................................26
3.3 Foreclosure.......................................................26
3.4 Remedies Under the Uniform Commercial Code........................26
3.5 Mortgagee's Rights of Setoff......................................27
3.6 Mortgagee's Rights of Cure........................................27
3.7 Appointment of Receiver...........................................28
3.8 All Legal and Equitable Remedies..................................28
3.9 Rights Distinct and Cumulative....................................28
3.10 Accord and Satisfaction...........................................28
(i)
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3.11 Reservation of Rights.............................................29
3.12 Waiver of Automatic Stay..........................................29
3.13 Mortgagor's Waivers...............................................30
3.14 Indemnification...................................................31
4. General Provisions..................................................32
4.1 Notices...........................................................32
4.2 Governing Law.....................................................32
4.3 Brundage Clause...................................................32
4.4 Mortgagee's Discretion............................................33
4.5 Interpretive Provisions...........................................33
4.6 Amendments........................................................34
4.7 Sales and Participation...........................................34
4.8 Partial Reduction of Indebtedness.................................34
4.9 Further Assurance of Title........................................34
4.10 Relationship of Parties...........................................34
4.11 Inconsistency with Other Loan Documents...........................35
4.12 Time is of the Essence............................................35
4.13 SUBMISSION TO JURISDICTION........................................35
4.14 WAIVER OF JURY TRIAL AND CONSEQUENTIAL AND PUNITIVE DAMAGES.......36
5. Future Advances.....................................................36
(ii)
SECOND LEASEHOLD MORTGAGE AND SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING
THIS SECOND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FIXTURE FILING (THIS "MORTGAGE") IS EXECUTED AS OF THE 30TH
DAY OF APRIL, 2003, BY NAP OF THE AMERICAS, INC., A FLORIDA CORPORATION, HAVING
OFFICES AT 2601 SOUTH BAYSHORE DRIVE, SUITE 900, MIAMI, FLORIDA 33133
("MORTGAGOR"), IN FAVOR OF THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.,
HAVING OFFICES AT 10161 CENTURION PARKWAY, JACKSONVILLE, FLORIDA 32256
("MORTGAGEE"), FOR THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF THE 10.0%
SUBORDINATED SECURED CONVERTIBLE DEBENTURES DUE APRIL 30, 2006 ISSUED BY
TERREMARK WORLDWIDE, INC., A DELAWARE CORPORATION ("TERREMARK"), THE PARENT
CORPORATION OF MORTGAGOR (THE "DEBENTURES").
1. GRANTING CLAUSES.
1.1 MORTGAGE. For valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confirmed, Terremark has executed and
delivered the Debentures and the other Loan Documents (as such terms and all
other capitalized terms used in this Mortgage are hereinafter defined in this
Mortgage or in Rider 1, attached hereto and incorporated herein by this
reference as if set out in full herein) and hereby irrevocably and absolutely
grants, transfers, assigns, mortgages, bargains, sells and conveys to Mortgagee
all the following (collectively, the "Mortgaged Property"):
(a) the leasehold estate created by the NAPA Lease in and to
the Leased Premises, being a portion of the Project upon the land located in
Miami-Dade County, Florida and more particularly described in EXHIBIT "A,"
attached hereto and incorporated herein by this reference, including, without
limitation, all of Mortgagor's rights to surrender, terminate, cancel, modify,
change, supplement, alter, or amend the NAPA Lease, and all of Mortgagor's
options to extend and/or renew the NAPA Lease;
(b) any and all other rights of Mortgagor with respect to the
Leased Premises, whether pursuant to the NAPA Lease or otherwise;
(c) the Improvements, and any and all appurtenances and
additions thereto and any and all betterments, renewals, substitutions and
replacements thereof;
(d) the Equipment;
(e) all right, title and interest of Mortgagor in and to all
construction and other materials of every kind and nature used or installed in,
on, or in connection with, or incorporated into, the Improvements from time to
time, or intended to be used or installed in, on, or in connection with, or
incorporated into, the Improvements from time to time, whether or not located
upon the Leased Premises or any other portion of the Project;
(f) all and singular the tenements, hereditaments, agreements,
privileges, royalties, and rights of way and appurtenances belonging or in
anywise appertaining to the Leased Premises and Improvements, including all
agreements or rights granting, conveying or creating, for the benefit of the
Leased Premises, any easement, right or license in any way affecting or accruing
to the benefit of the Leased Premises or the Improvements (whether in gross or
appurtenant, and whether for ingress and egress, drainage, utilities, parking or
any other purposes), and the reversion or reversions, remainder and remainders,
rents, issues and profits thereof; and also all the estate, right, title,
interest, property, claim and demand whatsoever of Mortgagor, of, in and to the
same and of, in and to every part and parcel thereof;
(g) all right, title and interest of Mortgagor, if any, in and
to the land lying in the bed of any street, road or avenue, opened or proposed,
in front of or adjoining the Leased Premises or any other portion of the
Project, on, in or to the air space over the Project, or any parcel thereof, and
all rights of ingress and egress with respect to the Leased Premises or any
other portion of the Project;
(h) all Rents and all rights (but not obligations) of
Mortgagor in, to and under any and all Leases, and the rights to enforce,
whether at law or in equity or by any other means, all terms, covenants and
other provisions thereof and all options thereunder;
(i) all rights (but not obligations) of Mortgagor in, to and
under any and all Contracts;
(j) all rights (but not obligations) of Mortgagor in, to and
under any and all insurance policies maintained by or for the benefit of
Mortgagor with respect to the Mortgaged Property, and/or the business of
Mortgagor conducted in connection therewith, all premiums paid thereunder and
all proceeds paid or due and payable thereunder;
(k) all sums held in escrow at any time and from time to time
by Mortgagee or any third party pursuant to this Mortgage and/or any other Loan
Document, including, but not limited to, any account for (i) Property Taxes or
Insurance premiums, (ii) security deposits, Contract deposits and operating
expenses, or (iii) reserves of any kind.
(l) all rights (but not obligations) of Mortgagor in, to and
under any and all proceeds, compensation, awards, damages and other payments
(collectively, "proceeds") paid or due and payable by any Governmental Authority
on account of any Taking in respect of the Mortgaged Property, including
interest thereon, and the right to receive the same;
(m) all rights (but not obligations) of Mortgagor in, to and
under all Accounts Receivable;
(n) all rights (but not obligations) of Mortgagor in, to and
under any and all claims and/or causes of action of any kind whatsoever arising
in tort, by contract or otherwise which Mortgagor now has or may at any time
hereafter acquire with respect to the Mortgaged Property or any of portion of
the Project, or any part thereof or interest therein, or the business of
Mortgagor conducted in connection therewith;
(o) all rights (but not obligations) of Mortgagor in, to and
under all contracts of sale for the Mortgaged Property or any other portion of
the Project, or any part thereof or interest therein, and all sums paid or due
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and payable thereunder, including, without limitation, any and all earnest
moneys and/or other deposits made or due and payable thereunder;
(p) all rights (but not obligations) of Mortgagor in, to and
under all General Intangibles;
(q) all rights (but not obligations) of Mortgagor in, to and
under all Permits, Plans, Warranties and Reports;
(r) all rights (but not obligations) of Mortgagor in, to and
under all Equipment Leases;
(s) all rights (but not obligations) of Mortgagor with respect
to: (i) any construction, design, architectural and engineering agreements
relating to the Improvements or any part thereof, and (ii) payment and/or
performance bonds, sureties, letters of credit and similar instruments issued
with respect to all or any part of the Leased Premised, Improvements, or
Equipment, together with any and all rights (but not obligations) of Mortgagor
relating to any of the foregoing and necessary or desirable for Mortgagee to use
any of the foregoing upon the occurrence of an Event of Default under any of the
Loan Documents;
(t) all right, title and interest of Mortgagor as "declarant,"
"developer," "owner" or other similar capacity in, to and under any declaration
of covenants, restrictions and easements and any other homeowners' or property
owners' documents filed in respect of or otherwise affecting the Leased Premises
or any other portion of the Project;
(u) all other rights and interests of Mortgagor, tangible and
intangible, relating to the Mortgaged Property and the development,
construction, operation and management thereof;
(v) all additions and appurtenances to, and all extensions,
improvements, betterments, renewals, replacements and substitutions of, any of
the foregoing hereafter acquired by or released to Mortgagor or constructed,
assembled or placed on the Leased Premises, Improvements or any other portion of
the Mortgaged Property, and all conversions of security constituted thereby,
which additions, appurtenances and extensions, improvements, betterments,
renewals, replacements, substitutions and conversions, immediately upon such
acquisition, release, construction, assembling or placement, as the case may be,
and in each case, without any further granting by Mortgagor, shall become part
of the Mortgaged Property, and shall be subject to the security interest hereof
fully, completely and with the same effect as though owned by Mortgagor on the
date hereof and specifically described herein; and
(w) all proceeds of the conversion, voluntary or involuntary,
permitted or otherwise, of any of the foregoing into cash or liquidated claims.
TO HAVE AND TO HOLD for the purpose of securing the due, prompt and
complete (1) payment of all principal, interest and other sums due and payable
under the Debentures, (2) payment of all other sums which may now or hereafter
be due and owing to Mortgagee under the terms of this Mortgage or any other Loan
Document, including, without limitation, interest thereon, and (3) observance,
performance, fulfillment and discharge of each and every obligation, covenant,
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condition, warranty, representation and agreement in the Debentures, this
Mortgage and/or any other Loan Document, regardless of how characterized herein
or therein (collectively, the "Obligations").
1.2 SECURITY AGREEMENT. To further secure the Obligations, Mortgagor
hereby grants to Mortgagee a security interest under the Uniform Commercial Code
in and to any and all personal property and fixtures constituting the Mortgaged
Property or any part thereof or interest therein, now owned or hereafter
acquired, including, without limitation, the Equipment, Contracts, Accounts
Receivable, General Intangibles and Equipment Leases and in and to any and all
proceeds of the foregoing. This Mortgage shall constitute a "security agreement"
under the Uniform Commercial Code, and Mortgagor and Mortgagee shall constitute
the "debtor" and "secured party", respectively, thereunder. To the extent any
part or interest in the Mortgaged Property may at any time be real property,
fixtures, personal property or other, Mortgagee shall have a lien thereon.
Mortgagee shall have any and all rights with respect to the personal property
constituting the Mortgaged Property or any part thereof or interest therein
afforded a secured party under the Uniform Commercial Code. Such rights shall be
in addition to, but not in limitation of, the rights afforded Mortgagee with
respect to real property under this Mortgage, all of which may be exercised
concurrently or alternatively at the option of Mortgagee, without election or
waiver of remedies.
1.3 FIXTURE FILING. This Mortgage constitutes a fixture filing with
respect to any goods or other items which are or are to become fixtures, and is
intended to be filed in the real estate records of Miami-Dade County, Florida.
1.4 LOAN DOCUMENTS. Reference is hereby made to the Debentures and the
other Loan Documents, all of whose terms, covenants and provisions are
incorporated herein by this reference.
2. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF MORTGAGOR.
Mortgagor hereby represents, warrants, covenants and agrees as follows:
2.1 PAYMENT OF INDEBTEDNESS. Terremark shall pay all principal,
interest and other sums payable under each of the Debentures, as and when due
thereunder in accordance with the terms and conditions thereof. The applicable
terms of the Debentures are incorporated herein by this reference.
2.2 TITLE OF MORTGAGOR. Mortgagor represents and warrants that
Mortgagor has full right to execute and deliver this Mortgage and that Mortgagor
has, subject to those exceptions to title in the title policy insuring this
Mortgage and approved by Mortgagee, in its own right, good and indefeasible
title to the Mortgaged Property which is free from all liens and encumbrances
(subject only to exceptions to title stated on Schedule B of the policy of title
insurance issued in favor of Senior Lender in connection with the Senior Loan
Documents and to the liens of the Senior Lender pursuant to the Senior Credit
Agreement), and has full power and authority to encumber the same by this
Mortgage. Mortgagor shall make, execute, acknowledge and deliver in due form of
law all such further or other deeds or assurances as may at any time hereafter
be desired or required for the purpose of more fully and effectually encumbering
and mortgaging the Mortgaged Property as hereby encumbered and mortgaged or
intended so to be, unto Mortgagee, for the purposes set forth herein, and shall
warrant and defend the Mortgaged Property and all parts thereof and interests
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therein unto all and every person or persons deriving any estate, right, title
or interest therein under this Mortgage, against Mortgagor and all persons
claiming through Mortgagor.
2.3 OPERATION OF PREMISES. Mortgagor shall maintain the Mortgaged
Property in good condition and repair. Mortgagor shall use and operate the
Mortgaged Property in accordance with the terms and conditions of the NAPA Lease
for the uses specified therein. Mortgagor shall not commit or suffer any waste
of the Mortgaged Property and shall substantially comply with, or cause to be
substantially complied with, all Governmental Requirements. Mortgagor shall not
remove, demolish or materially alter or enlarge any Improvements or construct
any additional Improvements, without the prior written consent of Mortgagee in
each instance. Mortgagor shall complete and pay for, within a reasonable time,
any Improvement now or at any time hereafter in the process of construction on
the Mortgaged Property. Without Mortgagee's prior written consent in each
instance, Mortgagor shall not: (i) initiate, join in or consent to (A) any
change in any private restrictive covenant, zoning ordinance, Permit, or other
public or private restrictions, limiting or affecting in any manner all or any
part of the Mortgaged Property, and/or the uses which may be made thereof, or
(B) any change in the existing access to and from the Mortgaged Property,
including, but not limited to, any vacation of any public roads, streets or
access ways; or (ii) record any declaration of condominium, or other covenants,
conditions or restrictions against the Mortgaged Property, or any part thereof.
2.4 PAYMENT OF PROPERTY TAXES. Subject to the provisions of Sections
2.4 and 2.5 of this Mortgage, Mortgagor shall pay all Property Taxes and other
charges and liens now or hereafter assessed or levied against the Mortgaged
Property or any part thereof or interest therein on or before March 1 of each
calendar year for which same are assessed. In case Mortgagor shall fail to pay
such taxes by March 1 of such year, Mortgagee may, but shall not be obligated
to, pay the same in whole or part. All sums so paid by Mortgagee in discharge of
such Property Taxes and other charges and liens shall be due and payable by
Mortgagor to Mortgagee on demand. All sums so advanced and all interest thereon
shall be a lien on and security interest in the Mortgaged Property and shall be
secured by this Mortgage. Notwithstanding the foregoing, Mortgagor shall not be
required to pay any Property Taxes which are payable by the Project Owner and
not separately assessed against the Mortgaged Property, but to the extent any
such Property Taxes are payable as part of Tenant's Proportionate Share of Real
Estate Taxes (as such terms are defined in the NAPA Lease), Tenant shall pay
same to the Project Owner in accordance with the provisions of the Lease.
2.5 CONTESTING PROPERTY TAXES. Mortgagor shall have the right to
contest or object to the amount or validity of any Property Taxes separately
assessed against the Mortgaged Property by appropriate legal proceedings, but no
such contest shall be deemed or construed in any way to relieve, modify or
extend Mortgagor's covenant to pay such Property Taxes unless (i) payment of the
Property Taxes that Mortgagor intends to contest or object to would, by
operation of law, constitute a waiver of Mortgagor's right to contest the same
and (ii) the conduct of legal proceedings to contest or object to such Property
Taxes shall conclusively operate to prevent the sale of the Mortgaged Property
or any part thereof or interest therein, in payment of such Property Taxes,
prior to final determination of such proceedings. In no event shall Mortgagor's
decision to contest the imposition of any Property Taxes affect Mortgagor's
obligation to continue to make payments to Mortgagee or its designee on account
of Property Taxes, as elsewhere provided herein.
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2.6 INSURANCE COVERAGE. Mortgagor shall at all times provide, maintain
and keep in force the following policies of insurance:
(a) Property insurance against loss or damage to the
Improvements by fire and all other risks of physical loss or damage (including
windstorm), with coverage known as "all risk," and containing an "agreed amount
endorsement" or other endorsement to eliminate application of the coinsurance
clause. The amount of such coverage shall in no event be less than the full
replacement cost of the Improvements (without deduction for depreciation),
including, without limitation, sprinkler leakage, demolition cost, cost of
debris removal, increased cost of construction arising from operation or
enforcement of building laws and ordinances. The deductible for such coverage
shall in no event be less than Ten Thousand Dollars ($10,000.00) with respect to
the losses for any casualty other than wind damage. The windstorm deductible
shall in no event exceed two percent (2%) of the estimated replacement cost of
the Improvements, exclusive of foundations and footings;
(b) If the Improvements are located in a Special Flood Hazard
Area, as defined by the Flood Insurance Rate Map issued by the Department of
Housing and Urban Development, flood insurance. Such amount shall in no event be
less than the full replacement cost of the Improvements (without deduction for
depreciation);
(c) To the extent that any Rents realized from the Mortgaged
Property constitute rental income (as such term is commonly understood in the
insurance industry), insurance against loss of rental income caused by the
perils required to be insured against in (a), (b), (e), and (f) of this Section,
on an Actual Loss Sustained basis. In no event shall the amount of such coverage
be less than one (1) year's gross rental income, excluding only non-continuing
expenses;
(d) To the extent that any Rents realized from the Mortgaged
Property constitute business income (as such term is commonly understood in the
insurance industry), insurance against loss of business income caused by the
perils required to be insured against in (a), (b), (e) and (f) of this Section,
on an Actual Loss Sustained basis. In no event shall the amount of such coverage
be less than one (1) year's gross business income, excluding only non-continuing
expenses;
(e) Boiler and machinery insurance covering damage to pressure
vessels, air tanks, boilers, machinery, pressure piping, electrical, heating,
ventilation and air conditioning equipment, and elevator and escalator
equipment, provided the Improvements contain equipment of such nature;
(f) Comprehensive General Commercial liability insurance
(including coverage for elevators and escalators, if any, on the Mortgaged
Property and completed operations coverage for two (2) years after construction
of Improvements has been completed), on an "occurrence" basis, against claims
for bodily injury including death, property damage and "Personal Injury"
occurring in, on or about the Mortgaged Property and the adjoining streets,
sidewalks and passageways. In no event shall the amount of such coverage be less
than Ten Million and No/100 Dollars ($10,000,000.00);
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(g) Motor vehicle liability coverage for all owned and
non-owned vehicles, including rented and leased vehicles, containing minimum
limits per occurrence of One Million Dollars ($1,000,000.00);
(h) Workers' Compensation insurance (including Employers'
Liability) in accordance with all Governmental Requirements for all employees of
Mortgagor engaged on or with respect to the Mortgaged Property;
(i) During the course of any construction or repair of the
Improvements or any portion thereof (in addition to the coverages described
above),
(1) Workers Compensation insurance (including
Employers' Liability) in accordance with all Governmental Requirements on all
employees of contractors, subcontractors, consultants and vendors engaged on or
with respect to the Mortgaged Property;
(2) Comprehensive General Commercial liability
insurance covering operations of all contractors and subcontractors (including
coverage for elevators and escalators, if any, on the Mortgaged Property and
completed operations coverage for two (2) years after construction of
Improvements has been completed), on an "occurrence" basis, against claims for
bodily injury including death, property damage and "Personal Injury" occurring
in, on or about the Mortgaged Property and the adjoining streets, sidewalks and
passageways. In no event shall the amount of such coverage be less than Ten
Million and No/100 Dollars ($10,000,000.00);
(3) Builders' risk completed value insurance against
"all risks of physical loss," including collapse and transit coverage, in
nonreporting form, covering the total value of work performed and equipment,
supplies and materials furnished, and containing the "permission to occupy
before completion of work" endorsement. The amount of such coverage shall in no
event be less than the full replacement cost of the Improvements (without
deduction for depreciation). The deductible for such coverage shall in no event
be less than Ten Thousand Dollars ($10,000.00); and
(4) Evidence that the general contractor has obtained
and is maintaining in full force and effect at all times adequate contractor's
liability insurance (including automobile liability and contractual liability
coverage) and Worker's Compensation Insurance in accordance with all
Governmental Requirements; and
2.7 POLICIES AND PREMIUMS.
(a) At least thirty (30) days prior to the expiration of each
insurance policy, Mortgagor shall furnish Mortgagee with written evidence of the
payment of the premium and arrangements for the reissuance of a policy
continuing insurance in force as required by this Mortgage.
(b) All policies required hereunder shall contain a provision
that such policies shall not be canceled or materially amended, which term shall
include any reduction in the scope or limits of coverage, without at least
thirty (30) days prior written notice to Mortgagee.
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(c) All policies of insurance shall be issued by companies
which are authorized to do business in the State of Florida and shall have a
Best's rating of not less than A/XIII.
(d) If Mortgagor fails to keep in force the policies of
insurance required by this Mortgage, Mortgagee may, but shall not be obligated
to, procure such insurance or single interest insurance for such risks covering
Mortgagee's interest and pay the premiums for any such insurance, all without
Mortgagor's consent, so as to prevent any lapse in coverage. All sums advanced
by Mortgagee to pay premiums on insurance policies which Mortgagor is required
to maintain hereunder shall be due and payable by Mortgagor to Mortgagee on
demand. All sums so advanced and all interest thereon shall be a lien on and
security interest in the Mortgaged Property and shall be secured by this
Mortgage in addition to all of the other Obligations.
(e) In the event of foreclosure of this Mortgage or other
transfer of title or assignment of the Mortgaged Property in lieu of
foreclosure, all right, title and interest of Mortgagor in and to all policies
of insurance required by this Mortgage shall, including all premiums theretofore
paid by Mortgagor, inure to the benefit of and pass to Mortgagee or any other
purchaser or purchasers of the Mortgaged Property at the foreclosure sale.
2.8 PAYMENT OF INSURANCE PREMIUMS. Mortgagor shall pay, when and as due
and payable, all premiums with respect to all insurance policies required
hereunder. In case Mortgagor shall default in the payment thereof when the same
shall be due and payable, Mortgagee may, but shall not be obligated to, pay the
same in whole or part. All sums so paid by Mortgagee for such insurance premiums
shall be due and payable by Mortgagor to Mortgagee on demand. All sums so
advanced and all interest thereon shall be a lien on and security interest in
the Mortgaged Property and shall be secured by this Mortgage. Upon request of
Mortgagee, Mortgagor shall exhibit to Mortgagee receipts for the payment of such
insurance premiums.
2.9 PROJECT INSURANCE. Mortgagor shall, on an annual basis, commencing
with the first anniversary of the date hereof, and on each April 30 thereafter,
request from the Project Owner evidence of such insurance covering the Project
as is in effect from time to time, including any and all such insurance required
by the provisions of the NAPA Lease. To the extent that the cost of any such
insurance is included in Tenant's Proportionate Share of Operating Charges (as
such terms are defined in the NAPA Lease), Tenant shall pay same to the Project
Owner in accordance with the provisions of the Lease.
2.10 LEASES.
(a) Except for service orders and license agreements entered
into between customers of Mortgagor and Mortgagor, Mortgagor shall not enter
into any Leases without Mortgagee's prior written consent in each instance,
which consent may be granted or withheld in Mortgagee's sole discretion, unless:
(i) such Lease provides for Rents due and payable thereunder at market rates and
otherwise be upon such terms and conditions as are agreed to as the result of
good faith, bona fide arms-length negotiations; (ii) the demised premises under
such Lease is used solely for legal purposes consistent with the NAPA Lease and
any use restrictions of record; (iii) such Lease does not grant any option or
right to acquire the Mortgaged Property or any part thereof or interest therein;
(iv) such Lease is at all times subject, subordinate and inferior in all
respects to the lien and operation of this Mortgage and all other Loan
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Documents, and the tenant thereunder enters into an agreement confirming same or
the Lease so provides; and (v) Mortgagor obtains the consent of the Project
Owner to enter into any Leases to the extent such consent is required by the
terms of the NAPA Lease.
(b) Mortgagor shall pay, perform and discharge, in all
material respects, as and when payment, performance and discharge are due, all
obligations of Mortgagor as landlord under all Leases. Mortgagor shall give
Mortgagee prompt notice of any default by Mortgagor claimed by any tenant under
any Lease, together with a copy of any notice of default given by any such
tenant to Mortgagor.
(c) Mortgagor shall, at Mortgagor's expense: (i) enforce all
material covenants and agreements on the tenant's part to be performed or
complied with under each of the Leases and on any guarantor's part to be
performed or complied with under any guaranty given in connection with any
Lease; (ii) diligently pursue all commercially reasonable remedies, including,
without limitation, claims for damages available at law or in equity against any
tenant under a Lease or guarantor thereof; and (iii) appear in and defend any
action or proceeding arising from or connected with any of the Leases or any
obligation or liability of Mortgagor as landlord thereunder.
(d) Mortgagor shall not, without Mortgagee's prior written
consent in each instance, accept prepayment of rent under any Lease or permit
any tenant to offset or credit sums due and payable by Mortgagor to such tenant
against Rents, as the case may be, for more than thirty (30) days in advance.
Mortgagor shall not, without the prior written consent of Mortgagee, create, or
subordinate any Leases to (or permit, allow, or suffer any such subordination),
any lien or security interest which would be superior to the Leases or would,
upon foreclosure thereof, extinguish the Leases.
(e) Mortgagor shall, from time to time, execute, acknowledge
and deliver to Mortgagee an assignment of the Leases, in form and substance
satisfactory to Mortgagee, transferring and assigning Mortgagor's interest in
the Leases to Mortgagee as security for the Debentures and other Loan Documents.
Mortgagor shall furnish to Mortgagee copies of all Leases requested by Mortgagee
within ten (10) days following Mortgagee's demand therefor.
(f) Notwithstanding the foregoing, so long as no Default or
Event of Default exists and is continuing, Mortgagor may enter into collocation
agreements on commercially reasonable, market rate terms and conditions.
2.11 ENVIRONMENTAL COMPLIANCE.
(a) In addition to and without limiting any other Obligations,
Mortgagor shall substantially comply with all Environmental Laws relating to the
Mortgaged Property and the conduct of Mortgagor's business in connection
therewith. Mortgagor shall remove and dispose of any Hazardous Substance found
on, in, under or affecting the Mortgaged Property which do not comply with
Environmental Law. All such removals and disposal shall be undertaken and
performed in substantial compliance with Environmental Laws. Mortgagor shall not
release, or permit, allow or suffer any release or threat of release, of any
Hazardous Substance on, in, under or affecting the Mortgaged Property or from
the Mortgaged Property onto any properties adjacent to the Mortgaged Property,
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except for such DE MINIMIS reasonable releases typically associated with the use
of portions of the Mortgaged Property or the Project for driving and parking
motor vehicles or with the normal and routine usage of cleaning products, and
which are not likely to result in any material liability under any Environmental
Laws. Mortgagor shall not generate or permit, allow or suffer any Hazardous
Substances to be generated on, in or under the Mortgaged Property. Mortgagor
shall not store or permit, allow or suffer Hazardous Substances to be stored on,
in or under the Mortgaged Property (except for such amounts commonly and
lawfully stored for use in the normal maintenance and operation of the Mortgaged
Property for its intended purpose). Mortgagor shall not permit, allow or suffer
any lien under any Environmental Law to attach to or encumber the Mortgaged
Property or any part thereof or interest therein.
(b) Mortgagor shall indemnify and defend Mortgagee (with
attorneys reasonably acceptable to Mortgagee) and hold Mortgagee harmless from
and against any and all Environmental Losses.
(c) If Mortgagor shall fail to comply with any of the
provisions of this Section or any provision of any other Loan Document relating
to Hazardous Substances and/or Environmental Laws, Mortgagee shall have the
right (upon providing prior written notice to Mortgagor), but not the
obligation, to enter upon the Mortgaged Property and to expend funds to cure
such failure by performing such remedial work as may be necessary to make the
Mortgaged Property conform to all Environmental Laws. Any amounts expended by
Mortgagee as a result thereof shall be due and payable by Mortgagor to Mortgagee
on demand. All such amounts and all interest thereon shall be part of the
Obligations secured by this Mortgage and shall constitute a lien on and security
interest in the Mortgaged Property. Any partial exercise by Mortgagee of
Mortgagee's remedies herein, including any partial undertaking by Mortgagee of
remedial work, shall not obligate Mortgagee to continue to exercise such
remedies or complete any remedial work commenced or take any further or
additional actions or require Mortgagee to expend or incur any further sums in
connection therewith. The exercise by Mortgagee of Mortgagee's remedies herein
shall not operate to place upon Mortgagee any responsibility for the operation,
control, care, management or repair of the Mortgaged Property, or make Mortgagee
the "owner" or "operator" of the Mortgaged Property or a "responsible party"
within the meaning of Environmental Laws.
(d) Mortgagor shall provide Mortgagee with prompt written
notice: (i) upon Mortgagor becoming aware of the presence of any Hazardous
Substance on the Mortgaged Property or any property adjacent thereto or of any
release or threat of release of any Hazardous Substance on, in, under or
affecting the Mortgaged Property or emanating from the Mortgaged Property, (ii)
upon Mortgagor's receipt of any notice from any Governmental Authority in
connection with any Hazardous Substance on, in, under or affecting the Mortgaged
Property or emanating from the Mortgaged Property, and (iii) upon Mortgagor's
obtaining knowledge of any incurrence of any expense by any Governmental
Authority in connection with the assessment, containment or removal of any
Hazardous Substances located on, in, under or affecting the Mortgaged Property
or emanating from the Mortgaged Property.
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2.12 CASUALTY.
(a) If the Mortgaged Property or any part thereof or interest
therein is damaged or destroyed by any casualty, Mortgagor shall give prompt
written notice thereof to Mortgagee, and shall obtain and deliver to Mortgagee,
at Mortgagor's cost, a reasonably detailed determination of the estimated cost
of restoration prepared by a general contractor/engineer reasonably acceptable
to Mortgagee.
(b) Mortgagee shall have the exclusive right to receive all
proceeds of insurance payable on account of any loss, damage or destruction
affecting the Mortgaged Property or any part thereof or interest therein
(subject to the Senior Lender's prior rights to control such insurance
proceeds), and Mortgagor hereby authorizes and directs each insurance company to
pay all such insurance proceeds directly to Mortgagee. Mortgagor hereby
absolutely, unconditionally and irrevocably assigns to Mortgagee all of
Mortgagor's rights to such insurance proceeds, including, without limitation,
the right to receive the same, and Mortgagor agrees to execute such further
assignments confirming the foregoing as Mortgagee may from time to time require.
If Mortgagor receives any such insurance proceeds, Mortgagor shall immediately
turn over same to Mortgagee. Mortgagee shall have the right, but not the
obligation, to commence, appear in and prosecute in its own name, any action or
proceeding in connection with any loss, damage or destruction and/or any
insurance proceeds payable on account thereof. Without Mortgagee's prior written
consent, Mortgagor shall not settle, adjust or compromise any claim for loss,
damage or destruction affecting the Mortgaged Property, or any part thereof or
interest therein, under any policies of insurance, and Mortgagee is hereby
authorized and empowered by Mortgagor to settle, adjust or compromise all claims
for loss, damage or destruction affecting the Mortgaged Property, or any part
thereof or interest therein, under any policies of insurance without Mortgagor's
consent. Mortgagee shall not be responsible for any failure to collect any
insurance proceeds, regardless of the cause of such failure.
(c) So long as no Event of Default shall have occurred and be
continuing, Mortgagee shall apply all of the Net Insurance Proceeds paid on
account of any damage to or destruction of the Mortgaged Property to the
Restoration Costs.
(d) Mortgagor shall repair all damage and destruction and
restore the Mortgaged Property to a condition equal to or better than their
condition before the casualty. Mortgagee shall disburse the Net Insurance
Proceeds from time to time as work progresses, subject to the satisfaction of
the following conditions:
(1) Delivery to Mortgagee of evidence that all
permits, licenses and approvals required for the work have been obtained and are
in full force and effect;
(2) Delivery to Mortgagee prior to each disbursement
of Net Insurance Proceeds, of certificates of the approved architect or engineer
that (A) all of the work completed has been done in compliance with the approved
plans and specifications, if any, (B) such disbursement is justly required to
reimburse Mortgagor for payments by Mortgagor to, or which are justly due to,
contractors, subcontractors, materialmen, laborers, engineers, architects or
other persons rendering services or materials for the work, (C) the amount of
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such disbursement, when added to all sums previously disbursed by Mortgagee,
does not exceed the value of the work done to the date of such certificate, and
(D) the amount of Net Insurance Proceeds held by Mortgagee after such
disbursement (without taking into account any holdbacks) will be sufficient on
completion of the work to pay for the same in full;
(3) Delivery to Mortgagee, prior to each disbursement
of Net Insurance Proceeds, of waivers or releases of lien for work completed and
title searches confirming that there has not been filed with respect to the
Mortgaged Property any mechanics', construction, or other lien or instrument for
the retention of title in respect of any part of the work not discharged of
record; and
(4) Delivery when the work has been completed of a
copy of any and all certificates required by law to render occupancy of the
Improvements and tenant spaces legal.
Mortgagee shall not be obligated to disburse Net Insurance Proceeds
more frequently than monthly but shall make monthly disbursements if requested
in writing by Mortgagor subject to Mortgagor's compliance with this Section
2.12. The restoration shall be done and completed by Mortgagor in an expeditious
and diligent fashion and in substantial compliance with all applicable
Governmental Requirements. All plans and specifications required in connection
with the restoration shall be subject to review and approval as to compliance
with the provisions of this subparagraph (d) by Mortgagee's inspecting engineer.
(e) Mortgagee shall have the right, but not the obligation, to
apply any proceeds held by it to cure any Event of Default by Mortgagor under
the Loan Documents. Mortgagee shall have no obligation to release any insurance
proceeds, following the occurrence and during the continuance of any Event of
Default, in which event Mortgagee shall have the right to apply the same to any
Obligations in such order as Mortgagee may determine. Excess insurance proceeds,
if any, remaining after the completion of any repair and restoration being paid
for out of Net Insurance Proceeds (and after the payment by Mortgagor of the
portion of the costs and expenses thereof equal to the amount of any deductible
under Mortgagor's insurance policy) shall be applied to any Obligations secured
hereby in such order as Mortgagee may determine.
(f) Nothing herein shall excuse Mortgagor from operating and
maintaining the Mortgaged Property following such casualty in accordance with
Section 2.3 ("Operation of Premises") of this Mortgage, or from promptly
repairing all damage and restoring the Mortgaged Property to a condition equal
to or better than the condition of the Mortgaged Property before the casualty,
regardless of whether or not there are insurance proceeds available for such
purposes or whether the amount of insurance proceeds is sufficient therefor,
subject, however, to such temporary closure of the Mortgaged Property or
portions thereof as may be necessary to effectuate repairs thereto so long as
such closures are limited in scope and time to that which is consistent with
prompt and diligent completion of such repairs and are in compliance with the
provisions of the NAPA Lease. Neither the application by Mortgagee of any such
insurance proceeds to the Obligations nor the release of the same to Mortgagor
for the repair and restoration of the Mortgaged Property, or otherwise, shall
cure or waive any Event of Default under this Mortgage or invalidate any act
done pursuant to any notice of default given pursuant thereto.
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(g) Notwithstanding any loss, damage or destruction of the
Mortgaged Property or any part thereof or interest therein, or the application
of any insurance proceeds realized thereby to the Obligations, Terremark shall
continue to pay the Debentures in accordance with the terms thereof and perform
all the other Obligations under this Mortgage until the entire indebtedness
secured hereby has been paid in full and all other Obligations have been fully
performed. No loss, damage or destruction shall be deemed to reduce any
Obligations secured by this Mortgage or stay the accrual of interest thereon
except to the extent insurance proceeds are actually received by the holders of
the Debentures.
(h) If, following the occurrence of any loss, damage or
destruction to the Premises, any part thereof or interest therein, but prior to
the receipt by Mortgagee of any of the proceeds thereof, the Mortgaged Property
shall be sold on foreclosure of this Mortgage, Mortgagee shall have the right to
receive all insurance proceeds payable on account of such loss, damage or
destruction and apply such proceeds to any deficiency found to be due upon such
sale, with legal interest thereon, whether or not a deficiency judgment on this
Mortgage shall have been sought or recovered or denied, and to all fees, costs
and expenses, including reasonable attorneys' fees and expenses, incurred by
Mortgagee in connection with the collection of such proceeds.
2.13 CONDEMNATION.
(a) Mortgagor shall give prompt written notice to Mortgagee of
the occurrence of any Taking or of the receipt by Mortgagor of any notice or
other information regarding any Taking or contemplated Taking, and shall
promptly deliver to Mortgagee copies of all papers and pleadings served in
connection with any and all Takings.
(b) Mortgagee shall have the exclusive right to receive all
proceeds payable to Mortgagor on account of any Taking (subject to the Senior
Lender's prior rights to control such proceeds), and Mortgagor hereby authorizes
and directs the Government Authorities doing such taking to pay all proceeds
payable on account thereof directly to Mortgagee. If Mortgagor receives any such
condemnation proceeds, Mortgagor shall immediately turn over same to Mortgagee.
Mortgagee shall have the right, but not the obligation, to commence, appear in
and prosecute in its own name any action or proceeding in connection with any
Taking. Without Mortgagee's prior written consent, Mortgagor shall not settle or
compromise any such action or proceeding, and Mortgagee is hereby authorized and
empowered by Mortgagor to compromise or settle the same without Mortgagor's
consent. Mortgagor hereby absolutely, unconditionally and irrevocably assigns to
Mortgagee all of Mortgagor's rights in respect of any Taking, including, without
limitation, the right to receive all proceeds thereof, and Mortgagor agrees to
execute such further assignments confirming the foregoing as Mortgagee may from
time to time require. Mortgagee shall not be responsible for any failure to
collect any such proceeds, regardless of the cause of such failure.
(c) Mortgagee shall have the right, in its sole and absolute
discretion and regardless of any impairment of security or lack thereof, to
apply all or any part of the Net Condemnation Proceeds of any Taking to (i) the
Obligations, in such order as Mortgagee may determine in its sole discretion, or
(ii) the Taking Restoration Costs. Mortgagor hereby acknowledges that in
determining whether or not, in Mortgagee's sole and absolute discretion, to
elect (i) or (ii) above, Mortgagee may take into account, among other factors,
the following:
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(1) The existence of any Default or Event of Default;
(2) whether the remaining portion of the Mortgaged
Property, after repair and restoration, will be economically viable;
(3) whether the Mortgaged Property, as so restored,
satisfies Mortgagee's then existing criteria for making loans on similar
properties;
(4) the estimated Taking Restoration Costs; and
(5) the factors listed in clauses (3) through (11) of
Subsection 2.12(c) above.
Notwithstanding the foregoing provisions of this subparagraph (c), provided that
no Event of Default then exists, Mortgagee shall make such Net Condemnation
Proceeds available to Mortgagor for the sole purpose of paying the Taking
Restoration costs, subject to and in accordance with the provisions of
subparagraph (d) below, unless the casualty for which such Net Condemnation
Proceeds were paid occurs within four (4) months of the maturity date of the
Loan, as such maturity date has been or may be extended pursuant to the terms of
the Debentures.
(d) If, pursuant to subparagraph (c) above, Mortgagee elects
(or is required pursuant to subparagraph (c) above) to make such Net
Condemnation Proceeds available to Mortgagor for the sole purpose of paying the
Taking Restoration Costs instead of reduction of the Obligations as required
herein, then: (1) Mortgagor shall to the maximum extent possible, repair all
damage and restore the remaining portion of the Mortgaged Property to a
condition equal to or better than the condition of the entire Premises before
the Taking; and (2) Mortgagee shall disburse such Net Condemnation Proceeds from
time to time as such work progresses, subject to such disbursement procedures,
terms and conditions as Mortgagee may establish. Such procedures, terms and
conditions may include, without limitation, the criteria set forth in Section
2.12 ("Casualty") of this Mortgage with respect to the disbursement of Net
Insurance Proceeds for repair and restoration.
(e) Mortgagor acknowledges and agrees that the rights granted
Mortgagee in this Section 2.13 in the event of any Taking of the Mortgaged
Property, any part thereof or interest therein, constitute reasonable
protections of Mortgagee's security therein, and that Mortgagor's agreement to
comply with such terms, conditions and procedures as Mortgagee may impose in
return for its agreement to apply the Net Condemnation Proceeds for repair and
restoration constitutes consideration to Mortgagee for waiving its right
hereunder to apply such proceeds to reduction of the indebtedness secured
hereby. Mortgagee shall have the right, but not the obligation, to apply any Net
Condemnation Proceeds held by it to cure any default by Mortgagor under the Loan
Documents. Mortgagee shall have no obligation to release any Net Condemnation
Proceeds, even after agreeing to apply the same to the Taking Restoration Costs
for the Mortgaged Property, or after work thereon has commenced, following the
occurrence of a Default or Event of Default under this Mortgage, in which event
Mortgagee shall have the right to apply the same to any indebtedness secured
hereby in such order as Mortgagee may determine. Excess Net Condemnation
Proceeds, if any, remaining after the completion of any repair and restoration
being paid for out of Net Condemnation Proceeds, shall be applied to any
Obligations secured hereby in such order as Mortgagee may determine.
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(f) Nothing herein shall excuse Mortgagor from operating and
maintaining the Mortgaged Property or any portion thereof remaining after such
Taking in accordance with the Section 2.2 ("Operation of Premises") of this
Mortgage, or from promptly repairing and restoring the Premises or the remaining
portion thereof, to the maximum extent possible, to a condition equal to or
better than the condition of the entire Premises before such Taking, regardless
of whether or not there are condemnation proceeds available for such purposes or
whether the amount of such proceeds is sufficient therefor, subject, however, to
such temporary closure of the Mortgaged Property or portions thereof as may be
necessary to effectuate repairs and restoration so long as such closures are
limited in scope and time to that which is consistent with prompt and diligent
completion of such repairs and restoration and are in compliance with the
provisions of the NAPA Lease. Neither the application by Mortgagee of any such
proceeds to the Obligations secured hereby nor the release of the same to
Mortgagor for the repair and restoration of the Mortgaged Property or otherwise
shall cure or waive any Default or Event of Default under this Mortgage or
invalidate any act done pursuant to any notice of default given pursuant
thereto.
(g) Notwithstanding the occurrence of any Taking or the
application of any proceeds realized thereby to the Obligations secured hereby,
Mortgagor shall continue to pay the Debentures in accordance with the terms
thereof and perform all the other obligations under this Mortgage until the
entire indebtedness secured hereby has been paid in full and all other
Obligations have been fully performed. No Taking shall be deemed to reduce any
Obligations secured by this Mortgage or stay the accrual of interest thereon,
except to the extent any proceeds thereof are actually received by Mortgagee and
Mortgagee has given written notice to Mortgagor of the application of such
proceeds to the reduction of the Obligations.
(h) Notwithstanding anything in this Mortgage to the contrary,
if, following the occurrence of any Taking but prior to the receipt by Mortgagee
of any of the proceeds thereof, the Mortgaged Property shall be sold on
foreclosure of this Mortgage, Mortgagee shall have the exclusive right to
receive all proceeds payable on account of such Taking and apply such proceeds
to any deficiency found to be due upon such sale, with legal interest thereon,
whether or not a deficiency judgment on this Mortgage shall have been sought or
recovered or denied, and to all fees, costs and expenses, including attorneys'
fees and expenses, incurred by Mortgagee in connection with the collection of
such proceeds.
2.14 RESTRICTIONS ON ALIENATION AND FURTHER ENCUMBRANCES.
(a) Mortgagor shall not, without Mortgagee's prior written
consent in each instance, which may be given or withheld in Mortgagee's absolute
and sole discretion, voluntarily or involuntarily sell, assign, convey,
transfer, grant, or otherwise dispose of (or permit, allow or suffer same), or
permit, allow or suffer any person to voluntarily or involuntarily purchase or
otherwise acquire, the Mortgaged Property or any legal or beneficial interest in
the Mortgaged Property or any part thereof or interest therein (including,
without limitation, any "net," "master" or "ground" leasing of the Mortgaged
Property) except in the ordinary course of business.
(b) Mortgagor shall not, without Mortgagee's prior written
consent in each instance, which may be given or withheld in Mortgagee's absolute
and sole discretion, permit, allow or suffer: (i) any change in the
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organizational structure of Mortgagor; or (ii) any voluntary or involuntary
sale, assignment, conveyance, transfer, or other disposition of any shares or
other legal or beneficial interest in Mortgagor.
(c) Mortgagor shall not, without Mortgagee's prior written
consent in each instance, which may be given or withheld in Mortgagee's absolute
and sole discretion, voluntarily or involuntarily (i) sell, assign, convey,
transfer, grant or otherwise dispose of the Mortgaged Property, or any part
thereof or interest therein, as security for any indebtedness, other
obligations, or otherwise, (ii) assign the whole or any part of the Leases or
the rents, issues, profits, royalties, bonuses, income or other benefits derived
from or produced by the Mortgaged Property, (iii) except in the ordinary course
of business, otherwise lien, mortgage, collateralize, pledge, grant a security
interest in, or in any way hypothecate, directly or indirectly, the Mortgaged
Property (including, but not limited to, the Leases and Rents and Mortgagor's
right, title, interest and estate in, to and under the NAPA Lease), or any part
thereof or interest therein, (iv) lien, mortgage, encumber, collateralize,
pledge or in any way hypothecate, directly or indirectly, any shares or other
legal or beneficial interest in Mortgagor, or (v) permit, allow or suffer any of
the foregoing to take place.
(d) Notwithstanding the foregoing subparagraph (c), Mortgagor
shall have the right, without first obtaining Mortgagee's consent, to remove and
dispose of, free and clear of the lien and security interest of this Mortgage,
such Equipment as may from time to time become worn out or obsolete, provided
that Mortgagor shall either (1) simultaneously with or prior to removing any
such Equipment, replace such Equipment with other equipment of a value at least
equal to that of the replaced Equipment, free and clear of any leases, title
retention or security agreement, or other encumbrance, and by such removal and
replacement Mortgagor shall be deemed to have subjected such Equipment to the
lien and security interest of this Mortgage, or (2) promptly pay over to
Mortgagee all net cash proceeds received from such disposition, which sums shall
be applied by Mortgagee to any Obligations in such order as Mortgagee may
determine.
(e) Notwithstanding the foregoing subparagraph (c), the filing
of one or more mechanics' or construction liens against the Mortgaged Property
shall not be an Event of Default hereunder if such lien complies with the
provisions of Section 2.15 of this Mortgage ("Construction Liens").
2.15 CONSTRUCTION LIENS. Mortgagor shall, within fifteen (15) days
after Mortgagor receives notice or otherwise learns thereof, pay and discharge,
at Mortgagor's cost and expense, all construction liens, encumbrances and
charges upon the Mortgaged Property, or any part thereof, or any interest
therein. Mortgagor shall have the right to contest in good faith the validity of
any such lien, encumbrance or charge, provided that Mortgagor shall first
deposit a bond, cash or other security, in conformance with Chapter 713, Florida
Statutes, with respect to such lien(s), in such amounts and in such form and
content so as to cause such lien(s) to be removed as lien(s) against the
Mortgaged Property, and deliver to Mortgagee such proof of the removal of such
lien(s) as shall be satisfactory to Mortgagee in its sole and absolute
discretion.
2.16 EASEMENTS AND RESTRICTIONS. All proposed easements, plats,
declarations of condominium, declarations of covenants and restrictions,
homeowner's association documents, and other instruments (and any amendment to
or modifications of any such instruments) which would or might affect the title
to the Mortgaged Property shall be submitted to Mortgagee for Mortgagee's
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approval (and execution solely as a lienholder if Mortgagee approves same) prior
to the execution thereof by Mortgagor, accompanied by a survey showing the exact
proposed location thereof, as applicable, and such other information as
Mortgagee shall reasonably require. Mortgagor shall not subject the Mortgaged
Property, or any part thereof, to any declaration of condominium, timeshare
documents or restrictive covenant without the prior written consent of
Mortgagee.
2.17 EQUIPMENT AND EQUIPMENT LEASES.
(a) During the term of this Mortgage, the Mortgaged Property
shall be furnished and equipped in a manner required by the Lease and as
appropriate to the Project.
(b) Mortgagor covenants and agrees that all Equipment
encumbered by this Mortgage shall be fully paid for and free from all liens,
encumbrances, leases, and title retention agreements when delivered and
installed upon the Mortgaged Property, and all such Equipment shall be deemed to
be realty and part of the freehold, to the maximum extent permitted by law.
Subject to the provisions of the Senior Credit Agreement concerning Existing
Equipment Leases, as defined therein, Mortgagor shall not enter into any
material Equipment Lease, or any other material agreement by which Mortgagor is
given possession of the Equipment without ownership thereof, without Mortgagee's
prior written consent. Mortgagor specifically acknowledges and agrees that
Mortgagee may condition such consent on the satisfaction of such requirements as
Mortgagee may specify, including, but not limited to, requirements that the
Equipment Lease shall:
(i) be with unaffiliated third party vendors, at
arms' length, market rate terms and conditions;
(ii) provide that the lessor shall give Mortgagee
written notice of default by Mortgagor under the Equipment Lease, and a
reasonable period of time from the date of the default, but in no event less
than thirty (30) days, in which to cure the default;
(iii) provide that the lessor unconditionally
consents to Mortgagor's grant of a lien and encumbrance upon, and security
interest in, such Equipment Lease pursuant to this Mortgage and the other Loan
Documents, and covenants and agrees that in the event Mortgagee or its designee
forecloses upon this Mortgage or otherwise realizes upon or becomes the owner of
any of the Mortgaged Property, such lessor shall, at the Mortgagee's request:
(x) recognize Mortgagee or its designee and the successors and assigns of the
Mortgagee or its designee as the holder of the rights of the lessee under such
Equipment Lease; and (y) accept payment and performance by each such party of
the obligations of the lessee thereunder.
(iv) not be modified or terminated without
Mortgagee's prior written consent;
(v) include a requirement that the leased Equipment
be kept and used exclusively on, and in connection with the business conducted
at, the Mortgaged Property;
(vi) include an express release of any statutory or
common law landlord's lien on any other property of Mortgagor;
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(vii) give Mortgagor and/or Mortgagee the right to
purchase the Equipment subject to the Equipment Lease, by paying the unamortized
value of such Equipment and no other premiums, fees, charges or other sums; and
(viii) otherwise be satisfactory in form and content
to Mortgagee. No item of Equipment which is subject to an Equipment Lease may be
brought onto the Mortgaged Property prior to Mortgagor's delivery to Mortgagee
of a copy of the Equipment Lease and Mortgagee's written approval of same.
(c) All Equipment shall be used directly and exclusively in
the operation or management of the Mortgaged Property. Mortgagor shall at all
times duly and promptly perform and comply, in all material respects, with all
obligations of Mortgagor under any material Equipment Lease, and if Mortgagor
shall fail to do so, Mortgagee may, upon the occurrence and during the
continuance of an Event of Default, but shall not be obligated to, take any
action as Mortgagee deems necessary or desirable to prevent or to cure any
default or alleged default by Mortgagor thereunder. Upon receipt by Mortgagee,
during the continuance of an Event of Default, of any written notice of such a
default by Mortgagor in the observance or performance of any of the terms,
covenants or conditions in the Equipment Leases, Mortgagee may rely thereon and
may, but shall not be obligated to, take any required action to prevent or cure
such default, even if the existence of such default or the nature thereof be
questioned or denied by or on behalf of Mortgagor. Mortgagor shall deliver to
Mortgagee, at any time and from time to time, upon request by Mortgagee,
evidence reasonably satisfactory to Mortgagee that the Equipment Leases are in
full force and effect, without default thereunder by any party, and without the
occurrence of any event, which would, upon the lapse of time or the giving of
notice, or both, result in a default thereunder. Mortgagor shall give Mortgagee
prompt written notice of any material default by any party under any material
Equipment Lease.
2.18 RECORDS AND ACCOUNTS. Mortgagor shall keep or cause to be kept
full, true and complete records and books of account, in accordance with
generally accepted accounting principles on a calendar year basis. Mortgagor's
accounts shall be kept current at all times, and all transactions of Mortgagor
shall be promptly and accurately entered therein. All Mortgagor's records and
books of account, originals of all documents with respect to its organization,
all minute books and other records relating to its continued existence, complete
and accurate records of all persons, directly or indirectly through one or more
intermediary persons, owning a legal or beneficial interest in Mortgagor as
shareholders, partners, members or otherwise, originals of all Leases,
Contracts, Permits, insurance policies and any and all other agreements relating
to or affecting the Mortgaged Property, all correspondence and other files
relating thereto, originals of all licenses and permits, all plans and
specifications with respect to the Mortgaged Property, all environmental
reports, financial analyses, engineering reports, appraisals and other studies
undertaken by, for or at the direction of Mortgagor with respect to the
Mortgaged Property and all other documents and materials of any kind whatsoever
relating to Mortgagor, the Mortgaged Property and/or the business of Mortgagor
conducted thereat normally and usually maintained by owners of similar
properties shall be kept and maintained by Mortgagor at the Mortgaged Property
or at the principal office of Mortgagor.
2.19 REPORTS TO MORTGAGEE. In addition to all other deliveries
which Mortgagor is required to make to Mortgagee elsewhere in this Mortgage and
without limiting Mortgagor's obligations with respect thereto, Mortgagor shall
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deliver the following to Mortgagee, all of which shall be prepared at
Mortgagor's sole cost and expense:
(1) No later than ten (10) days following Mortgagee's
demand therefor, upon the occurrence and during the continuance of an Event of
Default, copies of all Leases, Contracts, Equipment Leases, and other agreements
relating to or affecting Mortgagor or the Mortgaged Property, certified as true
and complete by an Approved Signatory.
(2) No later than ten (10) days following Mortgagee's
demand therefor, a certificate of Mortgagor stating the amount of the then
unpaid principal balance of the Debentures, the amount of any unpaid interest
accrued thereon, the interest rate then being earned on the outstanding
principal balance of the Debentures, the date to which the last installment of
interest or principal and interest has been paid, and whether or not, to the
best of Mortgagor's knowledge, any Default or Event of Default then exists.
(3) No later than ten (10) business days after
Mortgagor's receipt thereof, true and complete copies of (1) all written notices
of default, given to Mortgagor by any tenant under a Lease or by any party to a
material Contract, Equipment Lease or other agreement with respect to or
affecting Mortgagor or the Mortgaged Property, (2) all notices issued by any
Governmental Authority having jurisdiction over Mortgagor or the Mortgaged
Property of any violation of Governmental Requirements at the Mortgaged
Property, and (3) all notices, correspondence, legal papers or other documents
relating to any material suits, proceedings or other actions threatened in
writing, being commenced or pending against Mortgagor or the Mortgaged Property
before any court of law, administrative agency, arbitration panel or other
adjudicating body.
2.20 MORTGAGEE'S DUE DILIGENCE.
(a) Mortgagee and its officers, employees, representatives,
consultants, accountants, advisers, contractors and other agents shall have the
right, but not the obligation, at any time and from time to time, upon the
occurrence and during the continuance of an Event of Default, on reasonable
advance notice during ordinary business hours (1) to enter upon the Mortgaged
Property and all portions thereof in order to conduct any and all inspections,
tests, appraisals and other investigations, including, without limitation,
physical inspections and environmental audits and tests, as Mortgagee may in its
sole and absolute discretion deem necessary or advisable, (2) inspect, copy (at
Mortgagor's expense) and audit all of Mortgagor's files, accounts, books and
records, including, without limitation, the documents and materials described in
Section 2.18 (Records and Accounts) at the Mortgaged Property or Mortgagor's
principal office, and (3) conduct discussions with tenants under Leases,
mortgagees under other mortgages, parties under Contracts, Equipment Leases and
other agreements pertaining to or affecting Mortgagor, the Mortgaged Property or
the business of Mortgagor conducted with respect thereto and/or any Governmental
Authorities having jurisdiction over Mortgagor or the Mortgaged Property or any
part thereof or interest therein.
(b) Mortgagor shall cooperate with and assist Mortgagee in its
efforts to acquire such information with respect to Mortgagor, the Mortgaged
Property and/or the business of Mortgagor conducted thereon as Mortgagee may
reasonably require and shall promptly answer such inquiries with respect thereto
as Mortgagee may at any time or from time to time make.
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(c) All fees, costs and expenses, including, without
limitation, reasonable attorneys' fees and expenses, incurred or expended by
Mortgagee in conducting such due diligence with respect to Mortgagor, the
Mortgaged Property and/or the business of Mortgagor with respect thereto upon
the occurrence and during the continuance of an Event of Default, including,
without limitation, physical inspections, appraisals and environmental audits
and tests, shall be deemed to be incurred and/or expended in connection with the
collection of the Obligations and Mortgagee shall be reimbursed by Mortgagor
therefor as provided in Section 2.21 (Reimbursement of Expenses).
2.21 REIMBURSEMENT OF EXPENSES. Any and all fees, costs and
expenses incurred or expended by Mortgagee, including, without limitation,
reasonable attorneys' fees and expenses, whether in connection with any action
or proceeding or not, to sustain the lien of this Mortgage or its priority, or
to protect or enforce any of its rights and remedies hereunder or judgments
rendered in connection with the Loan Documents, or to recover any indebtedness
hereby secured, or for any title examination or title insurance policy relating
to the title to the Mortgaged Property, shall be due and payable by Mortgagor to
Mortgagee on demand. All sums so advanced and all interest thereon shall be a
lien on and security interest in the Mortgaged Property and shall be secured by
this Mortgage in addition to all other Obligations.
2.22 NAPA LEASE. Mortgagor represents, warrants covenants and
agrees that:
(a) Mortgagor shall promptly pay when due, prior to the time
when non-payment would give the lessor under the NAPA Lease the right to
terminate the NAPA Lease, all rents (including minimum or base rents, percentage
rents and additional rents), taxes and all other sums and charges mentioned in
and made payable by the NAPA Lease.
(b) Mortgagor shall keep and perform each and every covenant,
agreement and obligation of the lessee set forth in the NAPA Lease, will do all
things necessary to preserve and keep unimpaired Mortgagor's rights under the
NAPA Lease and will not commit, suffer or permit any breach thereof. If
Mortgagor shall default under the NAPA Lease or if the lessor thereunder shall
allege a default by Mortgagor, Mortgagee may (but shall not be obligated to)
immediately, in addition to exercising any of its remedies provided in ARTICLE
THREE of this Mortgage with respect to an Event of Default, at its option and
without being bound by any curative or grace period provided for the NAPA Lease
or by this Mortgage, take any action necessary or desirable to cure any default
alleged or otherwise by Mortgagor in the performance of any of the terms,
covenants and conditions of the NAPA Lease. Upon receipt by Mortgagee of any
written notice of default by Mortgagor in the observance or performance of any
provisions of the NAPA Lease, Mortgagee may rely thereon and may (but shall not
be obligated to) take any action required to prevent or cure such default even
though the existence of such default or the nature thereof be questioned or
denied by or on behalf of Mortgagor. Mortgagor hereby expressly grants to
Mortgagee, and agrees that Mortgagee shall have the absolute and immediate
right, upon notice to Mortgagor in any manner Mortgagee elects, including
without limitation notice by telephone or telefax, to enter in and upon the
Premises or any part thereof to such extent and as often as Mortgagee, in its
sole discretion, deems necessary or desirable in order to cure any such default
by Mortgagor under the NAPA Lease. All sums so expended shall be secured by the
lien of this Mortgage, shall be due upon demand and shall be secured by the lien
of this Mortgage.
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(c) Mortgagor shall give immediate notice to Mortgagee of any
material defaults by the lessor or the Mortgagor under the NAPA Lease, or the
receipt by Mortgagor of any notice of such a default or of the intention of
lessor or lessee thereunder to terminate the NAPA Lease, or of any notice,
summons or legal process which may affect the validity of the NAPA Lease or the
term thereof or which may affect either Mortgagor's or Mortgagee's interests in,
or possession of, the Premises, or any part thereof, or which relates to any
payment, act or thing, which is required by this Mortgage or the NAPA Lease to
be paid, done or performed. Mortgagor shall furnish to Mortgagee, promptly upon
request, any and all information concerning the performance by Mortgagor of
Mortgagor's obligations under the NAPA Lease, and shall permit Mortgagee or its
agent at all reasonable times to make investigation of or concerning such
performance. Mortgagor shall take all reasonable steps, including legal
proceedings, to protect its own right, title and interest in any of the Premises
and to enable Mortgagee to defend its interests therein.
(d) Mortgagor shall not assign, transfer or encumber in any
way whatsoever all or any part of the NAPA Lease, or all or any part of the
rents, profits, or other income from the Premises, to any person without the
prior written consent of Mortgagee, which may be given or withheld in
Mortgagee's sole discretion, and any assignment, transfer or encumbrance of the
NAPA Lease or of such rents, profits and other income without such prior written
consent shall be null, of no effect and absolutely void.
(e) Mortgagor covenants that it shall not, without Mortgagee's
prior written consent, which may be given or withheld in Mortgagee's sole
discretion: (i) surrender the leasehold estate or any other interest in the NAPA
Lease, (ii) terminate or cancel the NAPA Lease, (iii) materially modify, change,
supplement, alter or amend the NAPA Lease, or (iv) release the lessor thereunder
from any material obligations imposed upon it thereby, either orally or in
writing. As further security for the repayment of the indebtedness secured
hereby and for the performance of the covenants herein and in the NAPA Lease
contained, Mortgagor hereby assigns to Mortgagee all of its rights, privileges,
and prerogatives as lessee under the NAPA Lease to surrender, terminate, cancel,
modify, change, supplement, alter or amend the NAPA Lease in violation of the
foregoing, and any such surrender, termination, cancellation, modification,
change, supplement, alteration or amendment of the NAPA Lease without
Mortgagee's prior written consent thereto shall be void and of no force and
effect.
(f) Mortgagor covenants that no release or forbearance of any
of the Mortgagor's obligations under the NAPA Lease, pursuant to the NAPA Lease
or otherwise, shall release Mortgagor from any of its obligations under this
Mortgage, including its obligations with respect to the payment of rent as
provided for in the NAPA Lease and the performance of all of the terms,
provisions, covenants, conditions and agreements contained in the NAPA Lease, to
be kept, performed and complied with by lessee therein.
(g) The provisions of this Mortgage and the other Loan
Documents shall be deemed to be obligations of Mortgagor in addition to
Mortgagor's obligations as lessee with respect to similar matters contained in
the NAPA Lease, and the inclusion herein of any covenants and agreements
relating to similar matters under which Mortgagor is obligated under the NAPA
Lease shall not restrict or limit Mortgagor's duties and obligations to keep and
perform promptly all of its covenants, agreements and obligations as lessee
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under the NAPA Lease; provided, however, that nothing in this Mortgage and the
other Loan Documents shall be construed as requiring the taking of or the
committing to take any action by Mortgagor or Mortgagee which would cause a
default under the NAPA Lease.
(h) So long as this Mortgage is in effect, there shall be no
merger of the NAPA Lease or any interest therein nor of the leasehold estate
created thereby with the fee estate in the Premises or any portion thereof by
reason of the fact that the NAPA Lease or such interest therein or such
leasehold estate may be held directly or indirectly by or for the account of any
person who shall hold the fee estate in the Premises or any portion thereof or
any interest of the lessor under the NAPA Lease. Mortgagor shall not exercise
any options or rights, if any, under the NAPA Lease with respect to the
acquisition of fee title to the NAPA Lease Land or otherwise acquire such fee
title, without Mortgagee's prior written consent and any attempt by Mortgagor to
do so without Mortgagee's prior written consent shall be void and of no force or
effect. In case Mortgagor acquires the fee title or any other estate, title or
interest in the Premises covered by the NAPA Lease, this Mortgage shall attach
to and be a lien upon the fee title or such other estate so acquired, and such
fee title or other estate shall, without further assignment, mortgage or
conveyance, become and be subject to the lien of and encumbered by this
Mortgage. Mortgagor shall promptly notify Mortgagee in writing of any such
acquisition by Mortgagor and, on written request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances or other instruments
in writing as may in the opinion of Mortgagee be required to carry out the
intent and meaning hereof.
(i) Mortgagor shall, promptly after the execution and delivery
of this Mortgage and the other Loan Documents, notify the lessor under the NAPA
Lease in writing of the execution and delivery thereof and deliver or cause to
be delivered to such lessor a copy of this Mortgage.
(j) If the NAPA Lease is terminated prior to the natural
expiration of their respective terms by reason of default of the lessee
thereunder, and if, pursuant to any provision the NAPA Lease, or otherwise,
Mortgagee or its designee shall acquire from the lessor thereunder a new lease
of the Premises, or of any part of the Premises, Mortgagor shall have no right,
title or interest in or to such new lease or the leasehold estate created
thereby.
(k) Mortgagor hereby represents and warrants that: (i) the
NAPA Lease is in all respects valid and existing; (ii) Mortgagor is not in
default under any of its terms or provisions, (iii) there does not exist a state
of facts which upon notice and lapse of any applicable grace period would
constitute a default thereunder, (iv) no controversies exist involving any claim
of such default, and (v) the terms of the NAPA Lease have not been changed or
modified except as mentioned in the definition of "NAPA Lease" as set forth in
Rider 1 to this Mortgage.
(l) Mortgagor shall furnish to Mortgagee, upon demand, proof
of payment of all items which are required to be paid by Mortgagor pursuant to
the NAPA Lease and proof of payment of which are required to be given to the
lessor under the NAPA Lease.
(m) Mortgagor shall execute and deliver, on request of
Mortgagee, such instruments as Mortgagee may deem useful or required to permit
Mortgagee to cure any default under any term of the NAPA Lease or permit
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Mortgagee to take such other action as Mortgagee considers desirable to cure or
remedy the matter in default and preserve the interest of Mortgagee in the
Premises.
(n) Mortgagor shall, at no cost to Mortgagee, use its diligent
good faith efforts to obtain and deliver to Mortgagee from lessor, within
fifteen (15) days after written request by Mortgagee and at no cost to
Mortgagee, any lessor's estoppel certificate provided for in the NAPA Lease.
(o) In each and every instance under the NAPA Lease where
Mortgagor, as lessee, has the right or authority to appoint or select an
appraiser and/or an arbitrator, Mortgagor shall relinquish this right or
authority to Mortgagee on demand, and Mortgagee, may, at its option, within the
time periods required under the NAPA Lease, after consultation with Mortgagor,
choose the subject appraiser and/or arbitrator on behalf of Mortgagor.
(p) For the purpose of curing any default by Mortgagor under
the NAPA Lease, Mortgagee may (but shall not be obligated to) do any act or
execute any document in the name of Mortgagor or as its attorney-in-fact in its
name or otherwise to do any and all acts and to execute any and all documents
which in the opinion of Mortgagee may be necessary or desirable to cure any
default under the NAPA Lease or to preserve any rights of Mortgagor in, to or
under the NAPA Lease, or sublease thereof, or to preserve any rights of
Mortgagor whatsoever in respect to any part of the Premises.
(q) The curing by Mortgagee of any default by Mortgagor under
the NAPA Lease shall not remove or waive, as between Mortgagor and Mortgagee,
the Event of Default which occurred hereunder by virtue of the default by
Mortgagor under the NAPA Lease.
(r) To the extent allowable by law, Mortgagor agrees as
follows:
(1) The lien of this Mortgage shall attach to any and
all of Mortgagor's rights and remedies arising hereafter under or pursuant to
Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. 101 et seq. or any
amendments thereto (the "Bankruptcy Code"), including, without limitation, all
of Mortgagor s rights to remain in possession of the Premises.
(2) Mortgagor shall not, without first obtaining
Mortgagee's prior written consent, elect to treat the NAPA Lease as terminated
under Subsection 365(h)(1) of the Bankruptcy Code. Any such election made
without first obtaining Mortgagee's prior written consent shall be void.
(3) Mortgagor hereby unconditionally assigns,
transfers and sets over to Mortgagee, all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by lessor of the NAPA Lease
under the Bankruptcy Code. If Mortgagor does not do so or after an Event of
Default and while same continues, Mortgagee shall have the right to proceed in
its own name or in the name of Mortgagor in respect of any claim, suit, action
or proceeding relating to the rejection of the NAPA Lease, including, without
limitation, the right to file and prosecute, with the joinder of Mortgagor, any
proofs of claim, complaints, motions, applications, notices and other documents,
in any case with respect to ground lessor under the Bankruptcy Code. This
assignment constitutes a present, irrevocable and unconditional assignment of
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the foregoing claims, rights and remedies, and shall continue in effect until
all of the indebtedness and obligations secured by this Mortgage shall have been
satisfied and discharged in full. Any amounts received by Mortgagee as damages
arising out of the rejection of the NAPA Lease as aforesaid shall be applied
first to all fees, costs and expenses of Mortgagee (including, without
limitation, reasonable attorneys' fees and expenses) incurred in connection with
the exercise of any of its rights or remedies under this paragraph, and then
applied in accordance with the provisions of this Mortgage in the manner and
order specified for condemnation proceeds.
(4) If any action, proceeding, motion or notice shall
be commenced or filed with respect to the lessor under the NAPA Lease or the
Premises in connection with any case under the Bankruptcy Code and Mortgagor
fails to participate in any such litigation to the reasonable satisfaction of
Mortgagee, Mortgagee shall have the option, to the exclusion of Mortgagor,
exercisable upon written notice from Mortgagee to Mortgagor, to conduct and
control any such litigation with counsel of Mortgagee's choice. Mortgagee may
proceed in its own name or in the name of Mortgagor in connection with any such
litigation, and Mortgagor agrees to execute any and all powers, authorizations,
consents or other documents required by Mortgagee in connection therewith. Any
expenditures or payments made or incurred by Mortgagee in connection with the
prosecution or conduct of such litigation shall be secured by the lien of this
Mortgage and shall, at the option of Mortgagee, be repayable immediately upon
demand; and if Mortgagor shall fail to repay Mortgagee any such advance with
interest as hereinafter provided within ten (10) days after demand for repayment
of same, Mortgagee may, at its option, declare all sums evidenced by the
Debentures or secured by this Mortgage to be immediately due and payable, and
avail itself of any and all rights and remedies provided for herein. Mortgagor
shall not commence any action, suit, proceeding or case, or file any application
or make any motion, in respect of the NAPA Lease in any such case under the
Bankruptcy Code without first obtaining the prior written consent of Mortgagee.
(5) Mortgagor shall, promptly after obtaining
knowledge thereof, notify Mortgagee orally, by telephone, of any filing by or
against the lessor under the NAPA Lease of a petition under the Bankruptcy Code,
such telephone notice to be given to the location for Mortgagee specified herein
for notice. Mortgagor shall also immediately thereafter and forthwith give
written notice of such filing to Mortgagee, setting forth any information
available to Mortgagor as to the date of such filing, the court in which such
petition was filed, and the relief sought therein. Mortgagor shall also
promptly, after Mortgagor's receipt, deliver to Mortgagee copies of any and all
notices, summonses, pleadings, applications and other documents received by
Mortgagor in connection with any such petition and in connection with any
proceedings relating thereto.
(6) If there is filed by or against Mortgagor a
petition under the Bankruptcy Code, and Mortgagor as lessee under the NAPA
Lease, determines to reject the NAPA Lease pursuant to Section 365(a) of the
Bankruptcy Code, Mortgagor shall give Mortgagee prior written notice of the date
on which Mortgagor shall apply to the Bankruptcy Court for authority to reject
the NAPA Lease. Such date of application by Mortgagor shall not be less than ten
(10) days from the date of receipt as provided herein by Mortgagee. Mortgagee
shall have the right, but not the obligation, to serve upon Mortgagor within
such ten day period a written notice stating: (i) Mortgagee demands that
Mortgagor assume and assign the NAPA Lease to Mortgagee pursuant to Section 365
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of the Bankruptcy Code; and (ii) that Mortgagee covenants to cure or provide
adequate assurance of prompt cure of all defaults and provide adequate assurance
of future performance under the NAPA Lease. If Mortgagee serves upon Mortgagor
the written notice described in the preceding sentence, Mortgagor shall not seek
to reject the NAPA Lease and shall comply with the demand provided for in clause
(i) of the preceding sentence within thirty (30) days after such written notice
shall have been given subject to the performance by Mortgagee of the covenant
provided for in clause (ii) of the preceding sentence.
(7) Effective upon the entry of any order for relief
with respect to Mortgagor under Chapter 7 of the Bankruptcy Code, Mortgagor
hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court under Subsection 365(d)(1) of the Bankruptcy Code for an order
extending the period during which a NAPA Lease may be rejected or assumed.
All of the covenants of this Section 2.22 shall also apply to any subsequent
leases affecting the Mortgaged Property where Mortgagor is lessee. The
generality of the provisions of this section relating to the NAPA Lease shall
not be limited by other provisions of this Mortgage setting forth particular
obligations of Mortgagor which are also required of Mortgagor as the lessee
under the NAPA Lease.
3. EVENTS OF DEFAULT AND REMEDIES.
3.1 EVENTS OF DEFAULT. Upon the occurrence and during the
continuation of any of the events described in clauses (a) through (e) below,
the Mortgagee shall promptly notify in writing the holders of the Debentures.
Upon the written direction of the holders of a majority of the outstanding
principal amount of the Debentures (the "Required Holders"), the Mortgagee shall
declare the occurrence and continuation of such event to constitute an Event of
Default. Such Event of Default shall cease immediately upon the cessation of the
event described in clauses (a) through (e) below on which such Event of Default
was based.
(a) Terremark's default, which continues for a period of at
least 15 days, in the payment of Principal under, or Interest on, the Debentures
when the same becomes due and payable upon redemption or otherwise;
(b) the breach by Terremark or Mortgagor of any covenant or
agreement in this Mortgage, the Debentures or any other Loan Document (other
than a breach described in clause (a) above), and such breach continues for a
period of 30 consecutive days after written notice to Mortgagor or Terremark by
Mortgagee, provided, that if such breach is not curable within 30 days, then
such period shall be extended for an additional 60 consecutive days so long as
Mortgagor or Terremark is diligently attempting to cure such breach;
(c) any final judgment or order against Terremark (not covered
by insurance) for the payment of money in excess of $1,000,000 in the aggregate
for all such final judgments or orders (treating any deductibles, self-insurance
or retention as not so covered) and which is not paid or discharged, or if there
shall be any period of 60 consecutive days following the entry of a final
judgment or order that causes the aggregate amount for all such final judgments
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or orders outstanding and not paid or discharged against Terremark to exceed
$1,000,000, and for which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
(d) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of Terremark in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of Terremark for all or
substantially all of the property and assets of Terremark or (iii) the winding
up or liquidation of the affairs of Terremark and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(e) Terremark (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order of relief in an involuntary case
under any such law, (ii) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of Terremark or for all or substantially all of the property and assets
of Terremark or (iii) effects any general assignment for the benefit of
creditors.
3.2 ACCELERATION. At any time upon the occurrence and during the
continuation of an Event of Default, the Required Holders may direct the
Mortgagee in writing to declare the outstanding principal and the accrued and
unpaid interest, if any, on all Debentures, and all other sums of any kind
whatsoever secured by this Mortgage and/or payable under any other Loan
Documents to be immediately due and payable in their entirety.
3.3 FORECLOSURE. Upon the occurrence and during the continuation
of any Event of Default, Mortgagee shall have the right to collect all
indebtedness, charges, and other sums then due and payable under this Mortgage
and any of the other Loan Documents by proceeding against the Mortgaged
Property, or any part thereof or interest therein, by foreclosure, or other
action at law or in equity for the enforcement of this Mortgage, or otherwise,
as permitted by the laws of the State of Florida. Mortgagor hereby waives any
right it may have to require the marshaling of its assets. Mortgagee shall have
the right to foreclose the Mortgaged Property in its entirety, or any part
thereof or interest therein, as Mortgagee in its sole and absolute discretion
shall determine, in one or more sales in such order and priority as Mortgagee
may in its sole and absolute discretion deem necessary or advisable. All sums
realized from any such foreclosure sale, less all costs and expenses of such
sale, shall be applied to the payment of any indebtedness, charges and other
sums then due and payable under this Mortgage and any of the other Loan
Documents in such order as Mortgagee shall determine in its sole and absolute
discretion. If, following any such foreclosure sale, any indebtedness, charges
and other sums secured hereby, whether or not then due and payable, shall remain
unpaid or unsatisfied in any respect, this Mortgage, the Debentures and the
other Loan Documents, and all Obligations of Mortgagor hereunder and thereunder,
shall continue in full force and effect until such unpaid and unsatisfied
indebtedness is fully paid and satisfied as therein provided.
3.4 REMEDIES UNDER THE UNIFORM COMMERCIAL CODE. Upon the
occurrence of any Event of Default, Mortgagee may exercise any or all of the
remedies available to a secured party under the Uniform Commercial Code,
including, but not limited to:
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(a) Either personally or by means of a court appointed
receiver, take possession of all or any portion of the property described in
Section 1.2 of this Mortgage and exclude therefrom Mortgagor and all others
claiming under Mortgagor, and thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements, alterations, additions and
improvements to and exercise all rights and powers of Mortgagor in respect of
such property or any part thereof. In the event Mortgagee demands or attempts to
take possession of such property in the exercise of any rights under any of the
Loan Documents, Mortgagor promises and agrees to promptly turn over and deliver
complete possession thereof to Mortgagee;
(b) Without written notice to or demand upon Mortgagor, make
such payments and do such acts as Mortgagee may deem necessary to protect its
security interest in such property, including, without limitation, paying,
purchasing, contesting or compromising any encumbrance, charge or lien which is
prior to or superior to the security interest granted hereunder and, in
exercising any such powers or authority, to pay all expenses incurred in
connection therewith;
(c) Require Mortgagor to assemble such property or any portion
thereof, at a place designated by Mortgagee and reasonably convenient to both
parties, and promptly to deliver such property to Mortgagee, or an agent or
representative designated by it. Mortgagee, and its agents and representatives,
shall have the right to enter upon any or all of Mortgagor's premises and
property to exercise Mortgagee's rights hereunder; and
(d) Sell, lease or otherwise dispose of such property at
public sale, with or without having the property at the place of sale, and upon
such terms and in such manner as Mortgagee may determine. Mortgagee may be a
purchaser at any such sale.
It is expressly agreed that if, upon an Event of Default,
Mortgagee should proceed to dispose of any property in accordance with the
provisions of the Uniform Commercial Code, ten (10) days' notice by Mortgagee to
Mortgagor shall be deemed to be reasonable notice under any provision of the
Uniform Commercial Code requiring such notice; provided that, to the extent
permitted by applicable law, Mortgagee may at its option dispose of such
property in accordance with Mortgagee's rights and remedies with respect to
Premises pursuant to the provisions of this Mortgage in lieu of proceeding under
the Uniform Commercial Code.
3.5 MORTGAGEE'S RIGHTS OF SETOFF. Upon the occurrence and during
the continuance of an Event of Default, Mortgagee may offset and apply to any or
all of the Obligations all monies, credits and other property of any nature
whatsoever, and the proceeds thereof, of Mortgagor or any Guarantor now or at
any time hereafter in the possession of, in transit to or from, under the
custody or control of, or on deposit with, Mortgagee, including all escrow and
reserve accounts of Mortgagor.
3.6 MORTGAGEE'S RIGHTS OF CURE. Upon the occurrence and during the
continuance of an Event of Default, Mortgagee, in its sole discretion, without
obligation to do so, without notice to or demand upon Mortgagor and without
releasing Mortgagor from any obligation, may take any action Mortgagee deems
necessary to cure such Event of Default. Any sums advanced by Mortgagee to pay
the cost of curing such default shall be due and payable by Mortgagor to
Mortgagee on demand. All sums so advanced and all interest thereon shall be part
of the Obligations and secured by this Mortgage. If, at the time Mortgagee
elects to cure such default, Mortgagee shall hold any insurance or condemnation
proceeds, Property Tax or insurance escrows or other sums pursuant to this
Mortgage or any other Loan Document, and Mortgagee may, at its option and
without notice to Mortgagor, apply such funds, in such order as it deems
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appropriate, to the payment of all costs of such cure, notwithstanding anything
to the contrary elsewhere contained in the Loan Documents, in lieu of advancing
its own funds for such purpose. If Mortgagee has advanced its own funds to cure
such default, Mortgagee shall have the right, at any time that any such advances
remain unpaid, without notice to Mortgagor, to apply any proceeds, escrows or
other sums then held by Mortgagee or any third party pursuant to this Mortgage
or any other Loan Document, notwithstanding anything to the contrary elsewhere
contained in the Loan Documents, to the payment of such advances and all
outstanding and unpaid interest, if any, thereon. Upon demand by Mortgagee,
Mortgagor shall immediately replenish the amount of any proceeds, escrows or
other sums so applied by Mortgagee so that Mortgagee (or such third party, as
applicable), shall thereafter hold the same amount of proceeds, escrows and
other sums which Mortgagee (or such third party, as applicable), would have held
but for the exercise of the rights granted Mortgagee in this Section. No such
application or replenishment shall be deemed to cure the Event of Default.
3.7 APPOINTMENT OF RECEIVER. Mortgagee, in any action to foreclose
this Mortgage, or upon the actual or threatened waste to any part of the
Mortgaged Property, or upon the occurrence and during the continuation of an
Event of Default under this Mortgage or any other Loan Document, shall be at
liberty to apply (in an ex parte proceeding, if Mortgagee so elects) for the
appointment of a receiver of the rents and profits of the Mortgaged Property
without notice, and shall be entitled to the appointment of such receiver as a
matter of right, without consideration of the value of the Mortgaged Property as
security for the amounts due Mortgagee or the solvency of any person or
corporation liable for the payment of such amounts.
3.8 ALL LEGAL AND EQUITABLE REMEDIES. Mortgagee shall have the
right from time to time to enforce any legal or equitable remedy against
Mortgagor and to sue to enforce any covenant or undertaking of Mortgagor
contained herein; and/or to recover any sums, whether interest, damages for
failure to pay principal or any installment thereof, taxes, installments of
principal, or any other sums required to be paid under the terms of this
Mortgage, as the same become due, without regard to whether or not the principal
sum secured or any other sums secured by the Debentures and Mortgage shall be
due and without prejudice to the right of Mortgagee thereafter to enforce any
appropriate remedy against Mortgagor, including an action of foreclosure, or any
other action, for a default or defaults by Mortgagor existing at the time such
earlier action was commenced.
3.9 RIGHTS DISTINCT AND CUMULATIVE. The rights of Mortgagee
arising under this Mortgage shall be separate, distinct and cumulative and none
of them shall be in exclusion of the others or any remedy now or hereafter
existing at law or in equity or by statute; and no act of Mortgagee shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision, anything herein or otherwise to the contrary
notwithstanding. Every power or remedy given by any of the Loan Documents to
Mortgagee, or to which Mortgagee may be otherwise entitled, may be exercised
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee. Mortgagee may pursue inconsistent remedies.
3.10 ACCORD AND SATISFACTION. The acceptance by Mortgagee of any
sum after the same is due shall not constitute a waiver of the right either to
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require prompt payment, when due, of all other sums hereby secured or to declare
a Default or Event of Default under this Mortgage or any of the other Loan
Documents. The acceptance by Mortgagee of any sum in an amount less than the sum
then due shall be deemed an acceptance on account only and upon condition that
it shall not constitute a waiver of the obligation of Mortgagor to pay the
entire sum then due, and failure of Mortgagor to pay such entire sum then due
shall be an Event of Default notwithstanding such acceptance of such amount on
account, as aforesaid. Mortgagee shall, at all times thereafter and until the
entire sum then due shall have been paid, and notwithstanding the acceptance by
Mortgagee thereafter of further sums on account, or otherwise, be entitled to
exercise all rights in this Mortgage and any of the other Loan Documents
conferred upon Mortgagee and the right to exercise any rights or remedies
hereunder shall in no way be impaired, whether any of such amounts are received
prior or subsequent to such proceeding, election or exercise. Consent by
Mortgagee to any action or inaction of Mortgagor which is subject to consent or
approval of Mortgagee hereunder shall not be deemed a waiver of the right to
require such consent or approval to future or successive or actions or
inactions.
3.11 RESERVATION OF RIGHTS. No failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions hereof
shall be deemed to be a waiver of any of the terms and provisions hereof, and
Mortgagee, notwithstanding any such failure, shall have the right thereafter to
insist upon the strict performance by Mortgagor of any and all of the terms and
provisions of this Mortgage to be performed by Mortgagor. Neither Mortgagor nor
any other person now or hereafter obligated for the payment of the whole or any
part of the sums now or hereafter secured by this Mortgage shall be relieved of
such obligation by reason of the failure of Mortgagee to comply with any request
of Mortgagor, or of any other person so obligated, to take action to foreclose
this Mortgage, or otherwise enforce any of the provisions of this Mortgage, or
of any Obligations, or by reason of the release, regardless of consideration, of
the whole or any part of the security held for the Obligations, or by reason of
any agreement or stipulation between any subsequent owner or owners of the
Mortgaged Property and Mortgagee extending the time of payment or modifying the
terms of the Debentures or Mortgage without first having obtained the consent of
Mortgagor or such other person, and in the latter event, Mortgagor and all such
other persons shall continue to be liable for the making of such payments
according to the terms of any such agreement of extension or modification unless
expressly released and discharged in writing by Mortgagee. Regardless of
consideration, and without the necessity for any notice to or consent by the
holder of any subordinate lien on the Mortgaged Property, Mortgagee may release
the obligation of anyone at any time liable for any of the Obligations or any
part of the security held for the Obligations and may extend the time of payment
or otherwise modify the terms of the Debentures and/or any other Loan Document
without, as to the security or the remainder thereof, in anywise impairing or
affecting the lien of this Mortgage or the priority of such lien, as security
for the payment and performance of the Obligations as it may be so extended or
modified, over any subordinate lien; that the holder of any subordinate lien
shall have no right to terminate any lease affecting the Mortgaged Property
whether or not such lease be subordinate to this Mortgage; and that Mortgagee
may resort for the payment of the Obligations to any other security therefor
held by Mortgagee in such order and manner as Mortgagee may elect.
3.12 WAIVER OF AUTOMATIC STAY. The Debentures are being purchased
in reliance on Mortgagor's express assurances that it shall not attempt to delay
or frustrate the exercise of any rights or remedies granted Mortgagee hereunder
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upon the occurrence of an Event of Default hereunder. In the event Mortgagor or
any Party in Interest directly or indirectly files a petition under the United
States Bankruptcy Code or under any similar federal or state law or statute,
Mortgagor admits and agrees that such petition shall have been filed in bad
faith and in abrogation of Mortgagor's express assurances to Mortgagee hereunder
to the contrary, to frustrate or delay the foreclosure and/or sale of the
Mortgaged Property, or any part thereof or interest therein, and the exercise of
the other rights and remedies available to Mortgagee under this Mortgage, the
other Loan Documents and/or at law or in equity, and shall be deemed to have
been so filed in the United States Bankruptcy Court or other court in which such
filing was made and that Mortgagee shall have, in addition to any and all other
rights and remedies available to Mortgagee under this Mortgage, the other Loan
Documents and/or at law or in equity, the right (and Mortgagor shall interpose
no objection thereto and hereby waives its rights with respect thereto) to
request and receive from the Bankruptcy Court, or by such other court, immediate
relief from the automatic stay imposed under Section 362 of the United States
Bankruptcy Code or by similar provision of any other federal or state law or
statute, any stay or other restriction on the rights and remedies of Mortgagee
under any of the court's equitable powers, a termination of the exclusive period
provided by Section 1121 of the United States Bankruptcy Code, or by any similar
provision of any other federal or state law or statute, and a dismissal of the
bankruptcy case or proceeding. Nothing in this Mortgage shall be deemed in any
way to limit or restrict any rights of Mortgagee to seek in the United States
Bankruptcy Court or any other court of competent jurisdiction, any relief
Mortgagee may deem appropriate in the event that a voluntary or involuntary
petition under any title of the United States Bankruptcy Code or any other
federal or state law or statute is filed by or against Mortgagor.
3.13 MORTGAGOR'S WAIVERS. To the full extent permitted by law,
Mortgagor agrees that Mortgagor shall not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or subsequently in force
providing for any appraisement, valuation, stay, moratorium, extension, or
reinstatement of the Obligations hereby prior to any sale of the Mortgaged
Property to be made pursuant to any provisions contained in this Mortgage or
prior to the entering of any decree, judgment or order of any court of competent
jurisdiction, or any right under any statute to redeem all or any part of the
Mortgaged Property so sold. Mortgagor, for Mortgagor and Mortgagor's successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the full extent permitted by law, knowingly,
intentionally and voluntarily with and upon the advice of competent counsel,
waives, releases, relinquishes and forever forgoes: (a) all rights of valuation,
appraisement, stay of execution, reinstatement and notice of election or
intention to mature or declare due the Obligations (except such notices as are
specifically provided for in this Mortgage); (b) all right to a marshaling of
the assets of Mortgagor, including the Mortgaged Property, to a sale in the
inverse order of alienation, or to direct the order in which any of the
Mortgaged Property shall be sold in the event of foreclosure of the liens and
security interests created or through power of sale and agrees that any court
having jurisdiction to the foreclose such liens and security interests may order
the Mortgaged Property sold as an entirety; and (c) all rights and periods of
redemption provided under applicable law. To the fullest extent permitted by
law, Mortgagor shall not have or assert any right under any statute or rule of
law pertaining to the exemption of homestead or other exemption under any
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federal, state or local law now or hereafter in effect, the administration of
estates of decedents or other matters whatever to defeat, reduce or affect the
right of Mortgagee under the terms of this Mortgage to a sale of the Mortgaged
Property, for the collection of the Obligations without any prior or different
resort for collection, or the right of Mortgagee under the terms of this
Mortgage to payment of the Obligations out of the proceeds of sale of the
Mortgaged Property in preference to every other claimant whatever. Mortgagor
knowingly, intentionally, or voluntarily, with and upon the advice of competent
counsel, waives, releases, relinquishes and forever forgoes all present and
future statutes of limitations as a defense to any action to enforce the
provisions of this Mortgage or to collect any of the Obligations to the fullest
extent permitted by law.
3.14 INDEMNIFICATION. In addition to any other indemnifications
provided herein or in the other Loan Documents, Mortgagor shall protect, defend,
indemnify and save harmless Mortgagee, and any participants with respect to the
Loan Documents, and their respective directors, officers, employees, agents and
Affiliates, and the respective successors and assigns of each of the foregoing
parties, from and against all liabilities, obligations, claims, demands,
damages, penalties, causes of action, losses, fines, fees, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses),
imposed upon or incurred by or asserted against Mortgagee by reason of: (i)
Mortgagor's ownership and operation of the Mortgaged Property or any interest
therein; (ii) any accident, injury to or death of persons or loss of or damage
to property occurring in, on or about the Mortgaged Property or the Project or
any part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways occurring prior to a Foreclosure
Transfer; (iii) any use, nonuse or condition in, on or about the Mortgaged
Property or the Project or any part thereof or on adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways occurring prior to
a Foreclosure Transfer; (iv) any failure on the part of Mortgagor to perform or
comply with any of the terms of this Mortgage or any of the other Loan Documents
occurring prior to a Foreclosure Transfer; (v) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Mortgaged Property or the Project or any part thereof occurring prior to a
Foreclosure Transfer; (vi) any representation or warranty made in the this
Mortgage or the other Loan Documents being false or misleading in any material
adverse respect as of the date such representation or warranty was made; (vii)
any claim by brokers, finders or similar persons claiming to be entitled to a
commission in connection with any Lease or other transaction involving the
Mortgaged Property or any part thereof under any legal requirement or any
liability asserted against Mortgagee with respect thereto; (viii) the claims of
any lessee of all or any portion of the Mortgaged Property or any person acting
through or under any lessee or otherwise arising under or as a consequence of
any Lease occurring prior to a Foreclosure Transfer (except for claims related
to breach by Mortgagee of any agreements between Mortgagee and such lessees);
and (ix) any claims for payment of documentary stamp taxes and/or intangible
personal property taxes (as well as any penalties, interest or other sums
claimed to be due on account of any alleged failure to pay any such taxes) due
on the execution, delivery or recording of this Mortgage or any of the other
Loan Documents or any prior documents renewed, amended or restated hereby or
thereby. Any amounts payable to Mortgagee by reason of the application of this
Section or of subsection 2.11(b) shall be due and payable within ten (10) days
of written demand therefor and shall be secured by the Mortgage. The obligations
and liabilities of Mortgagor under this Section shall survive any termination,
satisfaction or assignment of this Mortgage or any Foreclosure Transfer.
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4. GENERAL PROVISIONS.
4.1 NOTICES.
(a) All Notices shall be in writing, shall be addressed to the
intended recipient at the address of such party set forth on RIDER 2, attached
hereto and incorporated herein by this reference as if set out in full herein,
and shall be either delivered to such party by nationally recognized overnight
delivery service (such as Federal Express or Emery Air Freight), by hand
delivery, by telecopy, or by mailing to such party by certified mail, return
receipt requested, postage prepaid. Either party hereto may at any time and from
time to time by Notice given as herein provided change the address to which
future Notices to such party are to be given.
(b) Any party hereto giving a Notice to the other pursuant to
this Section shall simultaneously give a true and complete copy of such Notice
to each of the persons designated by the intended recipient thereof on RIDER 2
to receive such copies. Each such copy shall be addressed to the intended
recipient at the address of such person set forth on RIDER 2 and shall be given
by hand delivery, telecopy, overnight delivery service, or certified mail in the
same manner provided above for the giving of Notices. Either party hereto may at
any time and from time to time by Notice given as herein provided change the
identity or address of the persons designated to receive such copies or
designate additional persons to receive such copies. In no event, however, shall
Mortgagee be obligated to give copies of any Notice to Mortgagor to more than
four persons at any time.
(c) No Notice given by any party hereto shall be of any force
or effect unless such Notice is given in accordance with all of the provisions
of this Section.
(d) All Notices shall be deemed to have been given and
received (1) on the date of delivery if delivered before 5:00 p.m. on a business
day; if not, on the next business day, (2) if delivered to a nationally
recognized overnight courier service, one day after delivery of such Notice to
such service, (3) if deposited in the United States mail, three (3) days after
mailing, or (4) on the day of telecopy transmission if transmitted before 5:00
p.m. on a business day; if not, on the next business day; provided, however,
that, when any Notice must be given under any provision of a Loan Document on or
before a certain date or within a certain period or number of days, such Notice
shall be deemed to have been given, solely for such purpose, on the date the
same was hand-delivered, delivered to such overnight courier or deposited in the
United States mails.
4.2 GOVERNING LAW. This Mortgage shall be governed by and
construed and interpreted in accordance with the laws of the State of Florida,
without application of its conflict of law principles.
4.3 BRUNDAGE CLAUSE. In the event of the passage after the date of
this Mortgage of any law of, or applicable to, the State of Florida, deducting
from the value of real and/or personal property for the purposes of taxation any
lien thereon or security interest therein or changing in any way the laws for
the taxation of mortgages, deeds of trust or security interests or debts secured
by mortgage, deed of trust or security interest for state or local purposes or
the manner of the collection of any such taxes, and imposing a tax, either
directly or indirectly, on the Debentures, this Mortgage or any other Loan
Document or on any Obligation, Mortgagee shall have the right, by giving written
notice to Mortgagor, to declare the entire unpaid principal balance of the
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Debentures and all accrued and unpaid interest thereon to be due and payable in
full on a date specified in such notice which shall in no event be less than
thirty (30) days following the giving of such notice; provided, however, that
such election shall be ineffective if Mortgagor is permitted by law to pay the
whole of such tax in addition to all other payments required hereunder and if
Mortgagor, prior to such specified date, does pay such tax and agrees to pay any
such tax when thereafter levied or assessed against the Mortgaged Property, and
such agreement shall constitute a modification of this Mortgage.
4.4 MORTGAGEE'S DISCRETION.
(a) Mortgagor expressly agrees and confirms that, unless
expressly provided to the contrary in any particular instance, any and all
rights of Mortgagee to give or withhold any consent, approval or other
authorization requested by Mortgagor with respect to the Debentures, this
Mortgage or any other Loan Document, to make any election or exercise any option
granted therein, to make any decision or determination with respect thereto, to
modify or amend any of the Loan Documents or waive any obligation of Mortgagor
thereunder or grant any extension of time for performance of the same or to take
or omit to take any other action of any kind whatsoever, Mortgagee shall, to the
maximum extent permitted by law, have the right, and Mortgagor expressly
acknowledges Mortgagee's right, in each instance, to take such action or to omit
to take such action in its sole and absolute discretion, whether or not the
applicable provision of the Loan Document in question expressly so provides.
(b) Whenever Mortgagor shall, by Notice or otherwise, request
that Mortgagee give any consent, approval or other authorization with respect to
the Debentures, this Mortgage or any other Loan Document, make any election or
exercise any option granted therein, make any decision or determination with
respect thereto, disburse insurance and/or condemnation proceeds to or for the
benefit of Mortgagor, modify or amend any of the Loan Documents or waive any
Obligation of Mortgagor or grant any extension of time for performance of the
same or take or omit to take any other action of any kind whatsoever, Mortgagor
shall pay such reasonable fees as Mortgagee shall establish at any time and from
time to time for performing such services for its borrowers and all fees, costs
and expenses including, without limitation, reasonable attorneys' fees and
expenses, incurred by Mortgagee in reviewing and/or processing Mortgagor's
request, whether or not Mortgagee shall grant such request. All such fees and
costs and expenses shall be due and payable by Mortgagor to Mortgagee on demand.
All sums so advanced and all interest thereon shall be a lien on and security
interest in the Mortgaged Property and shall be secured by this Mortgage in
addition to all other Obligations.
4.5 INTERPRETIVE PROVISIONS. Wherever used in this Mortgage,
unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, the word "Mortgage" shall mean this Mortgage as
may be amended, modified, supplemented, renewed, restated, extended, replaced,
substituted, split, consolidated or increased from time to time; the word
"Mortgagor" shall mean Mortgagor and/or any subsequent owner or owners of the
Mortgaged Property; the word "Mortgagee" shall mean Mortgagee or any subsequent
holder or holders of this Mortgage; the word "person" shall mean "an individual,
corporation, joint venture, trust, partnership, limited liability company, or
unincorporated association"; and pronouns of any gender shall include the other
genders; and either the singular or plural shall include the other. Whether or
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not specifically stated in any provision of this Mortgage, reference therein to
(i) any law, statute, ordinance, code, rule, regulation or other Governmental
Requirement shall mean and include any and all modifications, amendments and
replacements thereof, (ii) the phrase "including" shall mean "including, without
limitation" and (iii) any right of Mortgagee shall mean, unless expressly
provided therein to the contrary, such right without any corresponding
obligation.
4.6 AMENDMENTS. This Mortgage cannot be changed except by an
agreement in writing, signed by the party against whom enforcement of the change
is sought.
4.7 SALES AND PARTICIPATION. Mortgagee shall have the right in
connection with any actual or proposed sale of any Debenture, to deliver to such
actual or prospective purchaser or participant any and all information which
Mortgagee may have with respect to the Loan Documents, Mortgagor, the Mortgaged
Property and/or the business of Mortgagor with respect thereto, including,
without limitation, the Loan Documents, all information obtained by Mortgagee
pursuant to the Section of this Mortgage entitled "Mortgagee's Due Diligence" or
otherwise and all reports, statements, notices and other material delivered to
Mortgagee pursuant to the Section of this Mortgage entitled "Reports to
Mortgagee", or otherwise. Whenever under any provision of this Mortgage,
Mortgagor is required to deliver any report, statement, notice or other material
to Mortgagee following demand, including, without limitation, quarterly reports
on operations, copies of Leases, Contracts and other agreements and estoppel
certificates, Mortgagor shall, if Mortgagee so requests, deliver the same,
certified as herein provided, to such actual or prospective purchaser or
participant as Mortgagee shall designate.
4.8 PARTIAL REDUCTION OF INDEBTEDNESS. If at any time or from time
to time Mortgagee shall apply net proceeds from the sale of Equipment, Net
Insurance Proceeds, Net Condemnation Proceeds or any other sums held or received
by Mortgagee (other than installments of principal and/or interest paid in
accordance with the terms and conditions of the Debentures which shall be
applied as provided therein) in partial reduction of the indebtedness secured
hereby, such sums shall be applied in such order as Mortgagee shall determine.
Any sums applied by Mortgagee to the reduction of the principal of the
Debentures shall be deemed to be applied to the last installments due on such
principal and shall not reduce the amount of any scheduled installments of
principal and/or interest on the Debentures which shall continue to be due and
payable in the amounts provided for in the Debentures on the dates therein
provided until the Obligations are fully paid and satisfied, unless otherwise
provided in the Debentures.
4.9 FURTHER ASSURANCE OF TITLE. If at any time Mortgagee has
reasonable cause to believe that any advance under any of the Loan Documents is
not secured or will or may not be secured by this Mortgage in accordance with
the terms hereof, subject only to matters in the title policy insuring this
Mortgage or approved by Mortgagee, then Mortgagor shall, within fifteen (15)
days after written notice from Mortgagee, do all things and matters necessary to
assure to the satisfaction of Mortgagee that any advance previously made under
any of the Loan Documents or to be made under any of the Loan Documents, is
secured or will be secured by the Mortgage in accordance with the terms hereof,
subject to matters in the title policy.
4.10 RELATIONSHIP OF PARTIES. The relationship between Mortgagor
and Mortgagee is that of a Mortgagor and Mortgagee only, and neither of those
parties is, nor shall it hold itself out to be, the agent, employee, joint
venturer or partner of the other party.
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4.11 INCONSISTENCY WITH OTHER LOAN DOCUMENTS. This Mortgage and the
other Loan Documents are to be read in pari materia, and shall be construed in
such a manner as to afford the greatest possible protection and benefit for
Mortgagee. In the event of an express conflict between the terms of the
Debentures and the terms of any other Loan Documents as to payment terms, the
terms of the Debentures shall control.
4.12 TIME IS OF THE ESSENCE. Time is of the essence in respect of
each and every covenant, condition, term, provision and agreement of this
Mortgage and the other Loan Documents.
4.13 SUBMISSION TO JURISDICTION. MORTGAGOR, AND ALL OTHER OBLIGORS,
JOINTLY AND SEVERALLY, IRREVOCABLY AND UNCONDITIONALLY (A) AGREE THAT ANY SUIT,
ACTION, OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE
SHALL BE BROUGHT EXCLUSIVELY, AT THE OPTION OF MORTGAGEE, IN THE CIRCUIT COURT
IN AND FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA,
OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA,
UNLESS OTHERWISE REQUIRED BY OPERATION OF LAW; (B) CONSENT TO THE JURISDICTION
OF EACH SUCH COURT IN ANY SUCH SUIT, ACTING OR PROCEEDING; AND (C) WAIVE ANY
OBJECTION WHICH IT OR THEY MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING IN ANY OF SUCH COURTS.
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4.14 WAIVER OF JURY TRIAL AND CONSEQUENTIAL AND PUNITIVE DAMAGES.
EXCEPT AS PROHIBITED BY LAW, MORTGAGOR AND MORTGAGEE (BY ACCEPTANCE HEREOF) EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY
JURY AND THE RIGHT TO CLAIM OR RECEIVE CONSEQUENTIAL OR PUNITIVE DAMAGES IN
RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS,
CROSS-CLAIMS AND THIRD PARTY CLAIMS) BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS INSTRUMENT OR ANY OF THE OTHER THE LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED THEREIN, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF MORTGAGOR OR MORTGAGEE. IF
THE SUBJECT MATTER OF ANY LITIGATION IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS
PROHIBITED, NEITHER MORTGAGOR NOR MORTGAGEE SHALL PRESENT AS A NON-COMPULSORY
COUNTERCLAIM IN SUCH LITIGATION ANY CLAIM ARISING OUT OF THIS INSTRUMENT.
FURTHERMORE, NEITHER MORTGAGOR NOR MORTGAGEE SHALL SEEK TO CONSOLIDATE ANY
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY LITIGATION IN WHICH A JURY
TRIAL CANNOT BE WAIVED. MORTGAGOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF MORTGAGEE, NOR MORTGAGEE'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT MORTGAGEE WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. MORTGAGOR ACKNOWLEDGES
THAT THE PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO MORTGAGEE TO
PERFORM ITS OBLIGATIONS.
5. FUTURE ADVANCES. This Mortgage shall secure such future advances as may be
made by Mortgagee, at its option and for any purpose, within twenty (20) years
from the date of this Mortgage. All such future advances shall be included
within the "Obligations," shall be secured to the same extent as of made on the
date of the execution of this Mortgage, and shall take priority from the time
this Mortgage is filed for record as provided by law. The total amount of
indebtedness secured by this Mortgage may decrease or increase from time to
time, but the total unpaid balance so secured by this Mortgage shall not exceed
the maximum principal amount of $25,000,000, plus interest and any disbursements
made for the payment of taxes, levies or insurance on the Mortgaged Property,
with interest on those disbursements, plus any increase in the principal balance
as the result of negative amortization or deferred interest. Without the prior
written consent of Mortgagee, which Mortgagee may grant or withhold in its sole
discretion, Mortgagor shall not file for record any notice limiting the maximum
principal amount that may be secured by this Mortgage to a sum less than the
maximum principal amount set forth in this paragraph.
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IN WITNESS WHEREOF, the undersigned Mortgagor does hereby set forth its
hand and seal as of the 30th day of April, 2003.
Signed, sealed and delivered "MORTGAGOR"
in the presence of:
NAP OF THE AMERICAS, INC., a
Florida corporation
/s/ R. D. SICTHA By: /s/ JOSE SEGRERA
- ------------------------ ---------------------------------
Name: R. D. Sichta Name: Jose Segrera
Title: Vice President
/s/ JOSE E. GONZALEZ
- ------------------------
Name: Jose E. Gonzalez
ACKNOWLEDGMENTS
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 30th day of
April, 2003, by ______________, as__________________ of NAP of the Americas,
Inc., a Florida corporation on behalf of that corporation.
Personally Known ____________ OR
Produced Identification__________
Type of Identification
Produced____________________
Signature:
------------------------------
Name: [Print or type]
-------------------
Title: Notary Public
Serial No., if any:
---------------------
My commission expires:
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RIDER 1
DEFINITION OF CERTAIN TERMS
Each of the following terms when appearing in the Mortgage to which the
Rider 1 is attached shall have the meaning given such term below.
"Accounts Receivable" means all right, title and interest of Mortgagor
in and to all accounts, and accounts receivable arising from, out of or in
connection with the operation of the Mortgaged Property, including, but not
limited to, all such accounts and accounts receivable arising as a result of
items sold or leased, or for services rendered, whether or not yet earned by
performance, and not evidenced by an instrument or chattel paper, including (i)
all accounts arising from the operation of the Mortgaged Property, and (ii) all
rights to payment from any consumer credit/charge card organization or entity
(such as, or similar to, the organization or entities which sponsor and
administer the American Express Card, the Visa Card, the MasterCard, the
Discovery Card, or the Carte Blanche Card). Accounts Receivable shall include
those now existing or hereafter created, substitutions therefor, proceeds
(whether cash or non-cash, movable or immovable, tangible or intangible)
received upon the sale, exchange, transfer, collection or other disposition or
substitution thereof and any and all of the foregoing and proceeds therefrom.
"Affiliate" means any person or entity which directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control any other person or entity, where control is defined as the
power, directly or indirectly, to direct the policies, procedures or actions of
such person or entity, whether by stock ownership, voting rights, contract or
otherwise.
"Approved Signatory" means any individual who is the president, vice
president, chief executive officer or chief financial officer of Mortgagor.
"Contracts" means any and all contracts, agreements and other
undertakings of any kind whatsoever, written or oral, for the delivery of
services and/or the acquisition of supplies or materials in connection with the
ownership, management, operation, maintenance, leasing, construction and/or
improvement of the Mortgaged Property (including, without limitation, all
contracts and agreements for the purchase of Equipment) and including all
refunds, rebates, security deposits or other expectancy under or from any such
contracts, agreements and other undertakings. The term "Contracts" shall
specifically include any and all bilateral or multilateral peering agreement and
any other peering or other agreements or arrangements related to the use of the
Mortgaged Property as a network access point, "telecom hotel" or any other
similar use.
"Controlling Interest" means the legal or beneficial ownership, use,
enjoyment or benefit of, directly or indirectly through one or more intermediate
persons:
(1) in the case of a corporation, (i) fifty (50%) percent or more of
the issued and outstanding shares of any class of stock of such corporation,
(ii) fifty (50%) percent or more of the aggregate of all issued and outstanding
shares of all classes of stock of such corporation or (iii) the right to receive
fifty (50%) percent or more of any dividends or other distributions made by such
corporation at any time or from time to time;
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(2) in the case of a limited partnership, (i) any general partner
interest therein, (ii) fifty (50%) percent or more of any interest in a general
partner therein, (iii) fifty (50%) percent or more of the partner interests of
all the partners therein, or (iv) the right to receive fifty (50%) percent or
more of any profits, gains, losses, cash flow or distributions of such
partnership at any time or from time to time;
(3) in the case of a general partnership or joint venture, (i) fifty
(50%) percent or more of any interests of all the partners or venturers therein
or (ii) the right to receive fifty (50%) percent or more of any profits, gains,
losses, cash flow or distributions of such partnership or joint venture at any
time or from time to time; or
(4) in the case of a trust or other entity, (i) fifty (50%) percent or
more of the interests of all persons owning, using, enjoying or benefiting from
such entity or (ii) the right to receive fifty (50%) percent or more of the
profits, gains, losses, cash flow or distributions of such entity at any time or
from time to time; or
(5) in the case of a limited liability company, (i) fifty (50%) percent
or more of any interests of all the members therein or (ii) the right to receive
fifty (50%) percent or more of any profits, gains, losses, cash flow or
distributions of such company at any time or from time to time.
"Debentures" means the 10.0% Subordinated Secured Convertible
Debentures due April 30, 2006 of Terremark in the aggregate principal amount of
up to $25,000,000, as may be amended, modified, supplemented, renewed, restated,
extended, replaced, substituted, split, consolidated or increased from time to
time.
"Default" means any event, circumstance or condition which, with the
giving of notice or the passage of time, or both, would cause or result in an
Event of Default.
"Development Agreements" means any all approved site plans, development
plans, development orders or development agreements as they relate to the
Mortgaged Property, or any part thereof, and all environmental, water, sewer,
drainage, road, dredging, excavation, fill and all other development agreements
with any Governmental Authority having jurisdiction over the Mortgaged Property,
or any part thereof.
"Environmental Laws" collectively means and includes all present and
future Governmental Requirements relating to the environment and environmental
conditions or to any Hazardous Substance or Hazardous Substance Activity
(including, without limitation, the Comprehensive Environmental Response
Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq., the Federal
Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. 6901, et seq., the Federal
Water Pollution Control Act, 33 U.S.C. 1251, et seq., the Clean Air Act, 33
U.S.C. 7401, et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the Toxic
Substances Control Act, 15 U.S.C. 2601-2629, the Safe Drinking Water Act, 42
U.S.C. 300f-300j, the Emergency Planning and Community Right-To-Know Act, 42
U.S.C. 1101, et seq., and any so-called "Super Fund" or "Super Lien" law,
environmental laws administered by the Environmental Protection Agency, any
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similar state and local laws and regulations, all amendments thereto and all
regulations, orders, decisions, and decrees now or hereafter promulgated
thereunder).
"Environmental Losses" means Losses suffered or incurred by Mortgagee,
arising out of or as a result of: (i) the occurrence, prior to a Foreclosure
Transfer, of any Hazardous Substance Activity; (ii) any violation, prior to a
Foreclosure Transfer, of any applicable Environmental Laws, federal, state or
local, relating to the Mortgaged Property or to the ownership, use, occupancy,
or operation thereof; (iii) any investigation, inquiry, order, hearing, action,
or other proceeding by or before any Governmental Authority in connection with
any Hazardous Substance Activity occurring or allegedly occurring prior to a
Foreclosure Transfer; or (iv) any claim, demand or cause of action, or any
action or other proceeding, whether meritorious or not, brought or asserted
against Mortgagor or Mortgagee, regardless of when such claim, demand, or cause
of action or other proceeding is brought or asserted, which directly or
indirectly relates to, arises from or is based on any of the foregoing or any
allegation of the foregoing.
"Equipment" means, to the extent that the same are not Improvements,
all machinery, apparatus, goods, equipment, materials, supplies, fittings,
fixtures (including all heating, air conditioning, plumbing, lighting,
communications and elevator fixtures), chattels, inventory and articles of
personal property and accessions thereof, and appurtenances and additions
thereto, and betterments, renewals, replacements thereof and substitutions
therefor (including electric and electronic equipment, switches, routers and
other equipment associated with the use of the Mortgaged Property as a network
access point, "telecom hotel" or any other similar use), heating, lighting and
plumbing fixtures, fire prevention and extinguishing apparatus, alarm systems,
equipment for electronic monitoring, cooling, heating and air conditioning
systems, elevators, escalators, fittings, apparatus, tools, machinery, engines,
dynamos, motors, boilers, incinerators, conduits, compressors, call systems,
brackets, signs, billboards and other identifications (together with any right
to maintain the same), and all other furniture, furnishings, fixtures and
equipment and other property of every kind and nature whatsoever, in every case
to the extent now owned or hereafter acquired by Mortgagor, or in which
Mortgagor now has or hereafter acquires any interest, now or hereafter located
in or upon the Leased Premises or any other portions of the Project, or
appurtenances thereto, or usable in connection with the present or future
operation and occupancy of the Mortgaged Property, and all building equipment
materials and supplies of any nature whatsoever owned by Mortgagor, or in which
Mortgagor has or shall have an interest, now or hereafter located upon the
Leased Premises or any other portion of the Project, or appurtenant thereto, or
usable in connection with the present or future operation and occupancy of the
Mortgaged Property, and all other present and future "equipment" (as defined in
the Uniform Commercial Code) of Mortgagor, and the right, title and interest of
Mortgagor in and to any of the Equipment which may be subject to any lease or
security agreement (as defined in the Uniform Commercial Code).
"Equipment Leases" means all leases of Equipment entered into by
Mortgagor, as lessee, and any other person or entity, as lessor, and all
modifications, extensions, renewals and substitutions for such leases. Equipment
Leases shall include any purchase of Equipment with purchase money financing.
"Event of Default" has the meaning set forth in Section 3.1 hereof.
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"Foreclosure Transfer" means the transfer of title to all or any part
of the Mortgaged Property (1) at a foreclosure sale under this Mortgage pursuant
to judicial decree, (2) by deed in lieu of such foreclosure, or (3) under the
jurisdiction of a bankruptcy court.
"General Intangibles" means all right, title and interest of Mortgagor
in and to any accounts, chattel paper, instruments, chattel paper, claims,
deposits and any other general intangibles now or hereafter arising with respect
to, or which may in any way pertain to, the Mortgaged Property, including,
without limitation, all bank or similar accounts, any trademarks, service marks,
trade names, or other names under or by which the Mortgaged Property may at any
time be operated or known, the good will of Mortgagor in connection therewith
and the right of Mortgagor to carry on business under any or all such name or
names and any variant or variants thereof, insofar as the same may be
transferable by Mortgagor without breach of any agreement pursuant to which
Mortgagor may have obtained its right to use such name or names, and any and all
trademarks, prints, labels, advertising concepts, materials and literature.
"Governmental Authorities" means the United States of America, the
State of Florida, Miami-Dade County, Florida, and any political subdivision of
any of the foregoing, and any agency, department, commission, authority, board,
bureau, instrumentality or quasi governmental authority or corporation having or
asserting jurisdiction over the Mortgaged Property, or any part thereof of
interest therein, or over Mortgagor.
"Governmental Requirement" means any law, ordinance, code, order, rule,
regulation or requirement of or issued by any Governmental Authority that
affects or is applicable to the Mortgaged Property and/or the Improvements,
Mortgagor and/or any Guarantors, including any Environmental Laws, erosion
control ordinance, doing-business or licensing law, building code, ordinance,
zoning law, land-use ordinance, development agreements, Permit Obligations, OSHA
requirements, FEMA requirements, ADA requirements and all securities laws.
"Hazardous Substance" means, at any time, any of the following which
are in levels or amounts regulated by Environmental Laws: (i) asbestos and any
asbestos containing material, (ii) any substance or material that is then
defined or listed in, or otherwise classified pursuant to, any Environmental
Laws or any applicable laws or regulations as a "hazardous substance",
"hazardous material", "hazardous waste", "infectious waste", "toxic substance",
"toxic pollutant" or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or
"EP toxicity", or (iii) any petroleum and drilling fluids, produced waters, and
other wastes associated with the exploration, development or production of crude
oil, natural gas, or geothermal resources.
"Hazardous Substance Activity" means any actual use, packaging,
labeling, treatment, leaching, spill, cleanup, storage, holding, existence,
release, emission, discharge, generation, processing, abatement, removal,
disposition, handling or transportation of any Hazardous Substance from, under,
into or on the Mortgaged Property or surrounding property (but only to the
extent of seepage, release, discharge, migration, disposal or other actions are
in violation of any Environmental Laws).
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"Improvements" means all structures and other improvements now or
hereafter existing, erected or placed on, upon or within the Leased Premises, or
in any way used in connection with the use, enjoyment, occupancy or operation of
the Leased Premises or any portion thereof; all fixtures of every kind and
nature whatsoever now or hereafter owned by Mortgagor and used or procured for
use in connection with the Mortgaged Property.
"Leased Premises" means the premises demised pursuant to the NAPA Lease
and defined therein as the "Premises", such premises including, but not
necessarily limited to: (i) a portion of the Project comprising approximately
149,184 square feet of Rentable Area (as defined in the NAPA Lease) located on
the second floor of the Project; and (ii) any and all right, title and interest
of Mortgagor to use or have access the roof, risers, common areas or other
portions of the Project, and to connect any Improvements or Equipment to any
equipment or facilities located on the roof or within the risers, common areas
or other portions of the Project.
"Leases" means any and all leases, subleases (including, but not
limited to, any subleases under the NAPA Lease), tenancies, licenses, rental
agreements, occupancy agreements, use agreements, concession agreements, and
other agreements of whatever form (whether oral or written) now or hereafter
affecting all or any part of the Leased Premises, Improvements, Equipment or
other Mortgaged Property, and any and all guarantees, extensions, renewals,
replacements and modifications thereof and all remainders, reversions and other
rights and estates appurtenant thereto, including, but not limited to renewal
options and expansion rights, all modifications, extensions and renewals thereof
and all rights to renew or extend the term thereof, all right and privilege of
Assignor to terminate, cancel, abridge, merge, modify, surrender or amend. For
purposes hereof, the term "Leases" shall include the Colocation Agreements,
whether or not same are otherwise designated as or deemed to be lease
agreements.
"Loan Documents" means all documents and instruments evidencing,
securing or otherwise relating to the Debentures, including, but not limited to,
the Debentures, this Mortgage, the Subscription Agreement, the Subordination
Agreement and all other instruments now or hereafter given by or on behalf of
Terremark or Mortgagor to or for the benefit of Mortgagee, as may be amended,
modified, supplemented, renewed, restated, extended, replaced, substituted,
split, consolidated or increased from time to time (including any future
advances or other advances thereunder).
"Losses" means any and all losses, liabilities, damages, demands,
claims (including claims for any personal injury, including wrongful death, or
property damage, real or personal), actions, judgments, causes of action,
assessments, penalties, costs and expenses incurred by Mortgagee, including,
without limitation, all amounts contributed for investigation, monitoring,
remediation, response action, removal, restoration and permit acquisition and
the reasonable fees of outside legal counsel, environmental experts, and
accountants and the charges of in-house legal counsel and accountants.
"NAPA Lease" means that certain Lease Agreement dated October 16, 2000,
together with a Basic Lease Information Rider thereto, between the Project
Owner, as Landlord, and Mortgagor, as Tenant, pursuant to which the Project
Owner has leased the Leased Premises to Mortgagor, and Mortgagor has leased the
Leased Premises from the Project Owner.
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"Net Condemnation Proceeds" means the amount by which (i) all net
condemnation proceeds paid on account of any Taking exceed (ii) all commercially
reasonable costs and expenses, including, without limitation, the reasonable
fees of attorneys, appraisers, engineers and other consultants and advisers and
Mortgagee's out of pocket expenses, incurred by Mortgagee or Mortgagor in
connection with the collection or recovery of such proceeds, Mortgagee's
decision to apply such proceeds of either the reduction of the Obligations
and/or the repair and restoration of the Mortgaged Property, and/or
administering and/or monitoring the application and/or disbursement of such
proceeds to the repair and restoration of the Mortgaged Property.
"Net Insurance Proceeds" means the amount by which (i) all insurance
proceeds paid on account of any damage or destruction to the Mortgaged Property
or any part thereof or interest therein, exceed (ii) all commercially reasonable
costs and expenses, including, without limitation, the reasonable fees of
attorneys, appraisers, engineers and other consultants and advisers and
Mortgagee's out of pocket expenses, incurred by Mortgagee or Mortgagor in
connection with the collection or recovery of such proceeds, Mortgagee's
decision to apply such proceeds to either the reduction of the Obligations
and/or the repair and restoration of the Mortgaged Property, and/or
administering and/or monitoring the application and/or disbursement of such
proceeds to the repair and restoration of the Mortgaged Property.
"Notice" means any notice, request, demand, consent, or other
communication by any party to this Mortgage or other Loan Document to any other
party thereto.
"Party in Interest" means Mortgagor, any legal or beneficial owner of
the Mortgaged Property or any part thereof or interest therein, or any
individual or entity personally liable for all or any portion of the
Obligations, including, without limitation, any indemnitor of all or any portion
of the Obligations, any partner of a Party in Interest if such Party in Interest
is a general partnership, any venturer of a Party in Interest if such Party in
Interest is a joint venture, any general or limited partner of a Party in
Interest if such Party in Interest is a limited partner, and any member of a
Party in Interest if such Party in Interest is a limited liability company.
"Permits" means all right, title and interest of Mortgagor in and to
all governmental applications, permits, transferable development rights,
licenses, approvals, consents, authorizations and rights, contractual or
otherwise, of any kind now or hereafter existing in connection with the
Mortgaged Property, or any part thereof, including, without limitation, the
Development Agreements, building applications and permits, certificates of
occupancy or use, certificates of completion and alcoholic beverage licenses.
"Plans" means all architectural, engineering and similar plans,
specifications, drawings, renderings, maps, site plans, profiles, studies, shop
drawings, plats, proposed plats and similar documents relating to the Mortgaged
Property, or any part thereof.
"Project" means the land described in EXHIBIT A, together with the
building and other improvements located thereon, commonly known as "Technology
Center of the Americas."
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"Project Owner" means Technology Center of the Americas, LLC, a
Delaware limited liability company, which is the owner in fee simple of the
Project (subject to, inter alia, the NAPA Lease), and any successor in interest
as owner of the Project or any portion thereof.
"Property Taxes" means all real estate taxes, personal property taxes,
betterments, assessments (general and special), imports, levies, water, utility
and sewage charges, and all other taxes and public charges, imposed upon or
assessed against Mortgagor or the Mortgaged Property or otherwise payable by
Mortgagor pursuant to the provisions of the NAPA Lease, or upon the revenues,
rents, issues, income and profits of use or possession thereof, any of which
might, if unpaid, result in a lien on the Mortgaged Property, regardless to whom
paid or assessed, any assessment, license fee, license tax, business license fee
or tax, commercial rental tax, levy, charge, penalty, tax or similar imposition,
imposed by any authority having the direct power to tax, including any city,
county, state or federal government, or any school, architectural, lighting,
drainage or other improvement or special assessment district thereof, against
any legal or equitable interest in the Mortgaged Property.
"Rents" means any and all rents (including, without limitation, minimum
rents and additional rents), credits, cash, deposits, advanced rents, accounts,
rights, royalties, security deposits, issues, profits, revenues, income,
proceeds, earnings and other benefits of every nature of the Mortgaged Property
arising at any time (including, without limitation, after the filing of any
petition under any present or future federal or state bankruptcy or similar law)
from the use or enjoyment thereof, including, without limitation, cash, letters
of credit or securities deposited thereunder to secure performance by the
tenants of their obligations thereunder, whether such cash, letters of credit or
securities are to be held until the expiration of the terms of the Leases or
applied to one or more of the installments of rent coming due, additional,
percentage, participation and other rentals, fees and deposits, any and all sums
paid or due and payable in connection with the modification or termination of
any of the Leases, or in settlement or satisfaction of any claim or dispute for
unpaid rent or other Lease obligations, whether in connection with litigation,
bankruptcy or otherwise, liquidated damages following default and all proceeds
payable under any policy of insurance covering loss of rents resulting from
untenantability due to destruction or damage to the Mortgaged Property, together
with the immediate and continuing right to collect and receive the same, whether
now due or hereafter becoming due, and together with all rights and claims of
any kind that Mortgagor may have against any tenant, lessee or licensee under
the Leases or against any other occupant of the Mortgaged Property and all
rents, oil and gas or other mineral royalties, revenues and bonuses, issues and
profits from the Mortgaged Property, and all proceeds from the sale or other
disposition of the Leases.
"Restoration Costs" means the cost of repairing, replacing and
restoring any and all loss, damage or destruction affecting the Mortgaged
Property or any part thereof or interest therein.
"Reports" means any and all studies, reports, audits and similar
documents now or hereafter conducted or prepared with respect to the Mortgaged
Property, or any part thereof, including, without limitation, environmental
audits and tests, soil tests, appraisals and inspections.
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"Senior Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of April 30, 2003 among Terremark, the Mortgagor and
Ocean Bank, a Florida-chartered bank, as lender.
"Senior Lender" means Ocean Bank, a Florida-chartered bank, as lender
pursuant to the Senior Credit Agreement, its successors and assigns.
"Senior Loan Documents" means the Senior Loan Documents as defined and
described in the Subordination Agreement.
"Subordination Agreement" means that certain Subordination Agreement
dated as of April 30, 2003 by and among Mortgagor, Mortgagee, Senior Lender and
Terremark, to be recorded in the Public Records of Miami-Dade County, Florida.
"Taking" means the taking of the Mortgaged Property or any part thereof
or interest therein by reason of any public improvement or condemnation
proceeding or by the exercise of the power of eminent domain or any other
activity by any Governmental Authority of any kind on or off the Mortgaged
Property, including, without limitation, selection of the grade of any street,
resulting in damage or injury to the Mortgaged Property or any part thereof or
interest therein, including, without limitation, reduction in the value thereof.
"Taking Restoration Costs" means the cost of restoring the Mortgaged
Property to an economically viable commercial property after a Taking has
occurred.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
into law in the State of Florida.
"Warranties" means all warranties and guarantees of construction
contractors and/or subcontractors issued and/or delivered in connection with the
Improvements and/or warranties and guarantees of suppliers or manufacturers
issued and/or delivered in connection with the Improvements and/or the
Equipment.
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RIDER 2
SPECIAL NOTICE PROVISIONS
Notices to Mortgagee: The Bank of New York Trust Company of
Florida, N.A.
10161 Centurion Parkway
Jacksonville, Florida 32256
Attn: Sharon Atkinson
Fax: (904) 645-1997
and with a copy to: Emmet, Marvin & Martin, LLP
120 Broadway, 32nd Floor
New York, New York 10271
Attn: Irving C. Apar, Esq.
Fax: (212) 238-3100
Notices to Mortgagor or Terremark: Terremark Worldwide, Inc.
2601 South Bayshore Drive, Suite 900
Miami, Florida 33133
Attn: Jose Gonzalez, Esq.
Fax: (305) 856-8190
and with a copy to: Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Paul Berkowitz, Esq.
Fax: (305) 579-0717
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EXHIBIT "A"
LEGAL DESCRIPTION
Lots 1 through 20, inclusive, in Block 38 North, City of Miami, according to the
Plat thereof, as recorded in Plat Book B, Page 41, Public Records of Miami-Dade
County, Florida.
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