FLORIDA
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $10,500.00 AND FLORIDA
NON-RECURRING INTANGIBLE TAXES IN THE AMOUNT OF $6,000.00 ARE BEING
PAID UPON RECORDATION OF THIS INSTRUMENT.
MORTGAGE, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT
This
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (hereafter
referred to as "Mortgage") made as of February 24, 2004, by and
between, AEROSONIC CORPORATION , whose address is 1212 North
Hercules Avenue, Clearwater, Florida 33765 ("Mortgagor") and
WACHOVIA BANK, NATIONAL ASSOCIATION , a national banking
association, whose address is 214 North Hogan Street - FL0070,
Jacksonville, Florida 32202 ("Bank").
W
I T N E S S E T H :
To
secure payment and performance of obligations under a Promissory
Note dated February 16, 2004, in the amount of $3,000,000.00, made
by Mortgagor payable to Bank (as it may be modified or renewed and
including any substitute therefor, called the “Note”),
the Credit Agreement, as hereafter defined (but excluding all notes
other than the Note), this Mortgage, and present or future swap
agreements (as defined in 11 U.S.C. § 101) between Bank
or any of its affiliates and Mortgagor, and any renewals,
extensions, novations, or modifications of the foregoing
(collectively the "Obligations"), and in consideration of these
premises and for other consideration, Mortgagor does mortgage,
grant and convey unto Bank (for itself and its affiliates), its
successors and assigns, all of Mortgagor's right, title and
interest now owned or hereafter acquired in and to each of the
following (collectively, the "Property"): (i) all those
certain tracts of land in the County of Pinellas, State of
Florida described in
EXHIBIT A attached hereto and made part hereof (the "Land");
(ii)
all buildings and improvements now or hereafter erected on the
Land; (iii) all
fixtures, machinery, equipment and other articles of real, personal
or mixed property attached to, situated or installed in or upon, or
used in the operation or maintenance of, the Land or any
buildings or improvements situated thereon, whether or not such
real, personal or mixed property is or shall be affixed to the
Land; (iv) all building materials, building machinery and building
equipment delivered on site to the Land during the course of, or in
connection with, any construction, repair or renovation of the
buildings and improvements situated or to be situated thereon; (v)
all leases, licenses or occupancy agreements of all or any part of
the Land and all extensions, renewals, and modifications thereof,
and any options, rights of first refusal or guarantees relating
thereto; all rents, income, revenues, security deposits, issues,
profits, awards and payments of any kind payable under the leases
or otherwise arising from the Land; (vi) all contract rights,
accounts receivable and general intangibles relating to the Land or
the use, occupancy, maintenance, construction, repair or operation
thereof; all management agreements, franchise agreements, utility
agreements and deposits; all maps, plans, surveys and
specifications; all warranties and guaranties; all permits,
licenses and approvals; and all insurance policies; (vii)
all
estates, rights, tenements, hereditaments, privileges, easements,
and appurtenances of any kind benefiting the Land; all means of
access to and from the Land, whether public or private; and all
water and mineral rights; (viii) all assets described on EXHIBIT B;
and (ix) all "Proceeds" of any of the above-described property,
which term shall have the meaning given to it in the Uniform
Commercial Code of the jurisdiction where this Mortgage is recorded
(the “UCC”), whether cash or non-cash, and including
insurance proceeds and condemnation awards; and all replacements,
substitutions and accessions thereof.
In the
event that Mortgagor is the owner of a leasehold estate with
respect to any portion of the Property and Mortgagor obtains a fee
estate in such portions of the Property, then, such fee estate
shall automatically, and without further action of any kind on the
part of the Mortgagor, be and become subject to the security title
and lien of this Agreement.
TO
HAVE AND TO HOLD the Property and all the estate, right, title and
interest, in law and in equity, of Mortgagor’s
in
and to the Property unto Bank ,
its
successors and assigns, forever.
Mortgagor WARRANTS
AND REPRESENTS that Mortgagor is lawfully seized of the Property,
in fee simple, absolute, that Mortgagor has the legal right to
convey and encumber the same, and that the Property is free and
clear of all liens and encumbrances except the Permitted Liens, as
defined in the Revolving and Term Credit and Security Agreement by
and among the Bank, Mortgagor and Avionics Specialties, Inc. of
even date herewith, as it may be modified from time to time (the
“Credit Agreement”). Mortgagor further warrants
and will forever defend all and singular the Property and title
thereto to Bank and Bank's successors and assigns, against the
lawful claims of all persons whomsoever.
PROVIDED ALWAYS
that if (i) all the Obligations (including without limitation, all
termination payments and any other amounts due under or in
connection with any swap agreements (as defined in 11 U.S.C.
§
101)
secured hereunder) are paid in full, (ii) each and every
representation, warranty, agreement, covenant and condition of this
Mortgage, and the other Loan Documents (as defined in the Note),
are complied with and abided by, and (iii) any and all swap
agreements (as defined in 11 U.S.C. § 101) secured hereunder
have matured or been terminated, then this Mortgage and the estate
hereby created shall cease and be null, void, and canceled of
record.
To
protect the security of this Mortgage, Mortgagor further represents
and agrees with Bank as follows:
Payment of
Obligations. That the
Obligations shall be timely paid and performed.
Future
Advances. This
Mortgage is given to secure not only existing Obligations, but also
future advances, including obligations under swap agreements made,
and future swap agreements (as defined in 11 U.S.C. § 101)
entered into with Bank or any of its affiliates, within 20 years of
the date of this Mortgage to the same extent as if such future
advances and swap agreements are made on the
date of the execution of this Mortgage; provided that such advances
are subject to a written agreement that they will be subject to
this Mortgage. The principal amount that may be so secured
may decrease or increase from time to time, but the total amount so
secured at any one time shall not exceed $10,000,000.00, plus all
interest, costs, reimbursements, fees and expenses due under this
Mortgage and secured hereby. Mortgagor shall not execute any
document that impairs or otherwise impacts the priority of any
existing or future Obligations secured by this Mortgage.
Grant of Security
Interest in Personal Property. This
Mortgage constitutes a security agreement under the UCC and shall
be deemed to constitute a fixture financing statement.
Mortgagor hereby grants a security interest in any personal
property included in the Property. On request of Bank,
Mortgagor will execute one or more Financing Statements in form
satisfactory to Bank and will pay all costs and expenses of filing
the same in all public filing offices, where filing is deemed
desirable by Bank. Bank is authorized to file Financing
Statements relating to the Property without Mortgagor's signature
where permitted by law. Mortgagor appoints Bank as its
attorney-in-fact to execute such documents necessary to perfect
Bank's security interest on Mortgagor's behalf. The
appointment is coupled with an interest and shall be irrevocable as
long as any Obligations remain outstanding.
Nothing herein
obligates Bank to provide credit in excess of the
Obligations.
Leases, Subleases
and Easements. Mortgagor
shall maintain, enforce and cause to be performed all of the terms
and conditions under any lease, sublease or easement which may
constitute a portion of the Property. Mortgagor shall not,
without the consent of Bank, enter into any new lease of all or any
portion of the Property, agree to the cancellation or surrender
under any lease of all or any portion of the Property, agree to
prepayment of rents, issues or profits (other than rent paid at the
signing of a lease or sublease), modify any such lease so as to
shorten the term, decrease the rent, accelerate the payment of
rent, or change the terms of any renewal option; and any such
purported new lease, cancellation, surrender, prepayment or
modification made without the consent of Bank shall be void as
against Bank.
Required
Insurance. Mortgagor
shall maintain with respect to the Property: (i) during
construction of any improvements on the Property, "all-risk"
builders risk insurance which must include windstorm, hail damage,
fire and vandalism (non-reporting Completed Value with Special
Cause of Loss form), in an amount not less than the completed
replacement value of the improvements under construction, naming
Bank as mortgagee and loss payee; (ii) upon completion of
construction, upon occupancy of any improvements, and at all other
times, insurance against loss or damage by fire and other
casualties and hazards by insurance written on an "all risks"
basis, in an amount not less than the replacement cost thereof,
including coverage for loss of rents or business interruption if
applicable, naming Bank as loss payee and mortgagee; (iii) if the
Property is required to be insured pursuant to the National Flood
Reform Act of 1994, and the regulations promulgated thereunder,
flood insurance is required in the amount equal to the lesser of
the loan amount or maximum available under the National Flood
Insurance Program, but in no event should the amount of coverage be
less than the value of the improved structure, naming Bank as
mortgagee and loss payee. If, after closing, the Property (or any
part thereof) is remapped and if the vertical improvements are
determined to be located in a special flood hazard area, Mortgagor
must obtain and maintain a flood insurance policy. If, within
forty-five (45) days of receipt of notification from Bank that the
Property has been reclassified by FEMA as being located in a
special flood hazard area, Mortgagor has not provided sufficient
evidence of flood insurance, Bank is mandated under federal law to
purchase flood insurance on behalf of Mortgagor, and Bank will add
the associated costs to the principal balance of the Mortgage Note.
If the land or any portion thereof is located in a special
flood hazard area, this Agreement may be terminated by Bank at its
sole option; (iv) as applicable, insurance which complies with the
workers’ compensation and employers’ liability laws of
all states in which Mortgagor shall be required to maintain such
insurance; and (v) liability insurance providing coverage in such
amount as Bank may require but in no event less than
$1,000,000.00 combined single
limit, naming Bank as an additional insured; and (vi) such other
insurance as Bank may require from time to time.
All
property insurance policies shall contain an endorsement or
agreement by the insurer in form satisfactory to Bank that any loss
shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Mortgagor and the further
agreement (within both the property and liability policies) of the
insurer waiving rights of subrogation against Bank, and rights of
set-off, counterclaim or deductions against Mortgagor.
All
insurance policies shall be in form, provide coverages, be issued
by companies and be in amounts satisfactory to Bank. At least
30 days prior to the expiration of each such policy, Mortgagor
shall furnish Bank with evidence satisfactory to Bank that such
policy has been renewed or replaced or is no longer required
hereunder. All such policies shall provide that the policy
will not be canceled or materially amended without at least 30 days
prior written notice to Bank. In the event Mortgagor fails to
provide, maintain, keep in force, and furnish to Bank the policies
of insurance required by this paragraph, Bank may procure such
insurance or single-interest insurance in such amounts, at such
premium, for such risks and by such means as Bank chooses, at
Mortgagor's expense; provided however, Bank shall have no
responsibility to obtain any insurance, but if Bank does obtain
insurance, Bank shall have no responsibility to assure that the
insurance obtained shall be adequate or provide any protection to
Mortgagor.
Insurance
Proceeds. After
occurrence of any loss to any of the Property, Mortgagor shall give
prompt written notice thereof to Bank.
In the
event of such loss all insurance proceeds, including unearned
premiums, shall be payable to Bank, and Mortgagor hereby authorizes
and directs any affected insurance company to make payment of such
proceeds directly to Bank and not to Bank and Mortgagor jointly.
Bank is hereby authorized by Mortgagor to make proof of loss
if not promptly made by Mortgagor, settle, adjust or compromise any
claims for loss or damage under any policy or policies of insurance
and Mortgagor appoints Bank as its attorney-in-fact to receive and
endorse any insurance proceeds to Bank, which appointment is
coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied. Mortgagor shall pay the costs
of collection, including attorneys’ fees, of insurance
proceeds payable on account of such damage or destruction.
Mortgagor shall have no claim against the insurance proceeds,
or be entitled to any portion thereof, and all rights to the
insurance proceeds are hereby assigned to Bank as security for
payment of the Obligations.
In the
event of any damage to or destruction of the Property, Bank shall
have the option of applying or paying all or part of the insurance
proceeds to (i) the Obligations in such order as Bank may
determine, (ii) restoration, replacement or repair of the Property
in accordance with Bank’s standard construction loan
disbursement conditions and requirements, or (iii) Mortgagor.
Nothing herein shall be deemed to excuse Mortgagor from
restoring, repairing and maintaining the Property as required
herein.
Minimum
Standards. In addition
to the requirements set forth in the Loan Documents, all surveys,
insurance, title policies, construction documents, environmental
reports, payment and performance bonds, and any other due diligence
or additional documents required in connection with the Loan
Documents, shall comply with Bank’s minimum standards in
place from time to time for such documents, which shall be provided
in writing by Bank to Borrower upon request.
Impositions;
Escrow Deposit. Mortgagor
will pay all taxes, levies, assessments and other fees and charges
imposed upon or which may become a lien upon the Property under any
law or ordinance (all of the foregoing collectively "Impositions")
before they become delinquent and in any event in the same calendar
year in which they first become due. Upon request of Bank,
after occurrence of any Default, Mortgagor shall add to each
periodic payment required under the Mortgage Note the amount
estimated by Bank to be sufficient to enable Bank to pay, as they
come due, all Impositions and insurance premiums which Mortgagor is
required to pay hereunder. Payments requested under this
provision shall be supplemented or adjusted as required by Bank
from time to time. Such funds may be commingled with the
general funds of Bank and shall not earn interest. Upon the
occurrence of a Default, Bank may apply such funds to pay any of
the Obligations.
Use
of Property. Mortgagor
shall use and operate, and require its lessees or licensees to use
and operate, the Property in compliance with all applicable laws
(including, for example, the Americans with Disabilities Act and
the Fair Housing Act) and ordinances, covenants, and restrictions,
and with all applicable requirements of any lease or sublease now
or hereafter affecting the Property. Mortgagor shall not
permit any unlawful use of the Property or any use that may give
rise to a claim of forfeiture of any of the Property.
Mortgagor shall not allow changes in the stated use of
Property from that disclosed to Bank at the time of execution
hereof. Mortgagor shall not initiate or acquiesce to a zoning
change of the Property without prior notice to, and written consent
of, Bank.
Maintenance,
Repairs and Alterations. Mortgagor
shall keep and maintain the Property in good condition and repair
and fully protected from the elements to the satisfaction of Bank.
Mortgagor will not remove, demolish or structurally alter any
of the buildings or other improvements on the Property (except such
alterations as may be required by laws, ordinances or regulations)
without the prior written consent of Bank. Mortgagor shall
promptly notify Bank in writing of any material loss, damage or
adverse condition affecting the Property.
Eminent
Domain. Should the
Property or any interest therein be taken or damaged by reason of
any public use or improvement or condemnation proceeding
("Condemnation"), or should Mortgagor receive any notice or other
information regarding such Condemnation, Mortgagor shall give
prompt written notice thereof to Bank. Bank shall be entitled
to all compensation, awards and other payments or relief granted in
connection with such Condemnation and, at its option, may commence,
appear in and prosecute in its own name any action or proceedings
relating thereto. Bank shall be entitled to make any
compromise or settlement in connection with such taking or damage.
All compensation, awards, and damages awarded to Mortgagor
related to any Condemnation (the "Proceeds") are hereby assigned to
Bank and Mortgagor agrees to execute such further assignments of
the Proceeds as Bank may require. Bank shall have the option
of applying or paying the Proceeds in the same manner as insurance
proceeds as provided herein. Mortgagor appoints Bank as its
attorney-in-fact to receive and endorse the Proceeds to Bank, which
appointm
