EXHIBIT 10.6
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Xxxxxxx X. Xxxxxxxx
Division Counsel
Universal Foods Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
For Recording Purposes Only
PURCHASE MONEY MORTGAGE
THIS PURCHASE MONEY MORTGAGE (this "Mortgage") is made and entered into
this 1st day of August, 1995, by The Fresh Juice Company (the "Mortgagor"),
whose address is 000 Xxxxxxxx Xxxx., Xxxxx Xxxx, XX 00000, in favor of
Fantasy-BlankeBaer Corporation ("Mortgagee"), whose address is 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
1. MORTGAGE. In consideration of Ten Dollars ($10.00) and other valuable
consideration received by Mortgagor, the receipt and sufficiency of which are
hereby acknowledged, Mortgagor hereby grants, bargains, sells, assigns,
transfers, conveys and mortgages to Mortgagee, its successors and assigns, to
its own proper use and benefit forever, subject to the terms and conditions of
this Mortgage, the following:
(a) Land. All that certain real property located in Polk County,
Florida, more particularly described as follows, to wit:
See Attached
Exhibit B (the "Property")
(b) Appurtenances. The benefit of all easements and other rights of
any nature whatsoever, if any, appurtenant to the Property or the Improvements,
or both, the benefit of all rights-of-way, drainage rights, sanitary sewer and
potable water rights, stormwater drainage rights, rights of ingress and egress
to the Property and any improvements of Mortgagor now or hereafter located on
any of such real property interests, whether now existing or hereafter arising,
together with the reversions, remainders, rents, issues, incomes and profits of
any of the foregoing (the "Appurtenances").
(c) Improvements. All buildings, structures, fixtures and improvements
of any nature now or to be hereafter located in whole or in part upon the
Property or on the Appurtenances, regardless of whether physically affixed
thereto or severed or capable of severance therefrom (the "Improvements").
(d) Proceeds. All proceeds of the conversion, voluntary or
involuntary, of any of the property encumbered by this Mortgage into cash or
other liquidated claims, or that are otherwise payable for injury to or the
taking or requisitioning of any such property, including all judgments,
settlements and insurance and condemnation proceeds as provided in this
Mortgage.
The Property, Appurtenances and Improvements are collectively
referred to as the "Mortgaged Property" in this Mortgage.
2. DEBT. Mortgagor shall pay to Mortgagee the indebtedness (the "Debt") as
evidenced by that certain Promissory Note of even date herewith made by
Mortgagor in favor of Mortgagee in the principal amount of Four Hundred
Seventy-Five Thousand & 00/100 ($475,000.00), which Note, together with any and
all renewals, replacements, extensions or modifications is herein called the
"Note". Mortgagor's obligations described herein and in the Note are secured,
among other things, by the collateral described in this Mortgage, which term
includes any and all amendments, extensions, renewals, replacements,
substitutions, modifications and consolidations of this Mortgage, and may also
from time to time be secured by other collateral described in written documents.
3. COSTS. All costs, expenses, losses, damages and other charges sustained
or incurred by Mortgagee because of: (i) Mortgagor's default in payment or
performance, as the case may be, of any provision contained in the Note and this
Mortgage; (ii) defense of actions instituted by Mortgagor or a third party
against Mortgagee arising out of or related to the Loan, or in the realizing
upon, protecting, perfecting, defending, or (iii) actions brought or defended by
Mortgagee enforcing Mortgagee's security interest in the Mortgaged Property. All
of these costs and expenses include reasonable attorneys' fees, paralegals'
fees, or legal assistants' fees, whether incurred with respect to collection,
litigation, bankruptcy proceedings, interpretation, dispute, negotiation, trial,
appeal, defense of actions instituted by a third party against Mortgagee, or
enforcement of any judgment based on the Note and this Mortgage, whether or not
suit is brought to collect such amounts or to enforce such rights or, if
brought, is prosecuted to judgment.
4. TITLE WARRANTIES. Subject to the Permitted Encumbrances (as hereinafter
defined), Mortgagor covenants with Mortgagee that: (i) Mortgagor is indefeasibly
seized of the Property and Improvements in fee simple, has good and marketable
title to the Mortgaged Property and has full power, lawful right and authority
to convey the same in fee simple and to grant Mortgagee a perfected first lien
security interest in the Mortgaged Property, and (ii) the Mortgaged Property is
free and clear of all liens, encumbrances, restrictions, and security interests
of any nature and except for those permitted encumbrances which Mortgagee has
previously approved, as set out in Exhibit "A" attached hereto and incorporated
herein by reference, which are referred to as "Permitted Encumbrances" in this
Mortgage.
5. LIENS. Mortgagor will not create or permit to be created, or to remain,
and will promptly discharge at Mortgagor's expense any and all liens or
encumbrances upon, or security interests in, the Mortgaged Property, or any
combination thereof, whether consensual, common law, statutory, voluntary,
involuntary, or arising by operation of law, except the Permitted Encumbrances.
6. REPRESENTATIONS AND WARRANTIES. The Mortgagor hereby represents and
warrants to Mortgagee as follows:
(a) That Mortgagor will pay all and singular the principal, interest
and the other various and sundry sums of money payable under and by virtue of
the Note and this Mortgage promptly at the time or times that the same shall
severally become due.
(b) That Mortgagor will permit, commit, or suffer no waste,
impairment, or deterioration of the Property or any part thereof during the term
of this Mortgage.
(c) That Mortgagor will pay all and singular the costs, charges and
expenses, including reasonable attorneys' fees and costs of abstracts of title,
incurred or paid at any time by the Mortgagee because of the failure on the part
of the Mortgagor promptly and fully to perform these agreements and covenants of
the Note and this Mortgage, and said costs, charges and expenses, together with
interest thereon at the highest rate allowed by law, shall be immediately due
and payable on demand therefor by the Mortgagee and shall be secured by the lien
of this Mortgage.
7. TAXES AND OTHER IMPOSITIONS. Mortgagor will pay or cause to be paid,
when due (i) all property taxes, assessments, water, sewer, utility and other
rents, rates and charges, including all excises, taxes, levies, license fees,
permit fees, impact fees, connection fees, and other fees and charges, whether
general or special, ordinary or extraordinary, foreseen or unforeseen, that may
be assessed, levied or imposed upon the Mortgaged Property, or otherwise arising
with respect to the occupancy, use, possession or disposition thereof, whether
or not the failure to pay the same might result in the creation of a lien upon
the Mortgaged Property, or any combination thereof; (ii) all franchise, excise
and other taxes, fees and charges assessed, levied or imposed with respect to
Mortgagor's right to do business in the State of Florida and the political
subdivisions thereof; (iii) all taxes and fees (except for Mortgagee's state and
federal income taxes) that may be levied by the United States of America or any
state or political subdivision thereof, upon Mortgagee or Mortgagor in
connection with or upon the Note and this Mortgage, or the Debt or its payment,
or collection, or any combination thereof (including all documentary stamp taxes
and intangible taxes plus any penalties and interest charged for the late
payment of any such taxes); and (iv) all lawful claims and demands of
contractors, subcontractors, mechanics, laborers, materialmen and other lienors
which, if unpaid, might result in the creation of a lien upon the Mortgaged
Property. The sums payable under this paragraph are called "Impositions".
8. CONDEMNATION. If all or any part of the Mortgaged Property, or any
interest therein or right accruing thereto, is taken as a result of, or in lieu
or in anticipation of, the exercise of the right of condemnation or eminent
domain, by any government or any other party entitled to exercise such powers by
law, all proceeds payable with respect to any such action are assigned to
Mortgagee and shall be paid to Mortgagee. Mortgagee shall be under no obligation
to question the amount of any such award or compensation and may accept the same
in the amount in which the same shall be paid. The proceeds of any award or
compensation so received shall, at the option of the Mortgagee, either be
applied to the payment of the Debt or be paid over to the Mortgagor for the
restoration of the Improvement. Mortgagor, immediately upon obtaining knowledge
of the institution or threatened institution, of any proceedings for the
Mortgaged Property, or any part thereof, by condemnation or eminent domain, will
notify the Mortgagee of the pending of such proceedings. Mortgagee shall have
the right to intervene and participate in any proceedings for and in connection
with any taking referred to in this section. Mortgagor shall not enter into any
agreement for the taking of the Mortgaged Property or any part thereof.
9. INSURANCE. That Mortgagor will keep all Improvements hereafter erected
on the Property insured against loss by fire and other hazards, casualties and
contingencies to the extent of the full insurable value for replacement cost
thereof from time to time. Mortgagor will pay promptly when due any premiums on
such insurance and in default thereof the Mortgagee may itself pay the same, and
all such sums so paid by Mortgagee, together with interest thereon at the
highest rate allowed by law, shall be immediately due and payable upon demand of
Mortgagee and shall be secured by the lien of this Mortgage. All insurance shall
be carried by companies approved by Mortgagee and the original or certified
copies of policies and renewals thereof, together with evidence of the payment
of the premiums therefor, shall be provided to the Mortgagee. All such
insurance policies and renewals thereof shall contain standard form
non-contributing mortgagee loss payable clauses in favor of the Mortgagee, and
shall provide that no less than ten (10) days' written notice will be given the
Mortgagee before any cancellation or expiration thereof. In event of loss,
Mortgagor will give immediate notice by mail to Mortgagee and Mortgagee may make
proof of loss if not made promptly by Mortgagor, and each insurance company
concerned is hereby authorized and directed to make payment for such loss
directly to Mortgagee, instead of to Mortgagor and Mortgagee jointly, and the
insurance proceeds, or any part thereof, may be applied by Mortgagee at its
option either to the reduction of the indebtedness hereby secured or to the
restoration or repair of the Property.
10. ADVANCES. If Mortgagor defaults in the observance or performance of any
of the provisions of the Note and this Mortgage, including but not limited to
obtaining and maintaining insurance pursuant to Paragraph 9 and paying
Impositions pursuant to Paragraph 7, then Mortgagee, without waiving or
otherwise impairing any other of its rights or remedies, at its sole option and
without obligation to do so, and without demand upon Mortgagor, may make any
such payment or take such action as Mortgagee deems necessary or appropriate to
correct such Default, or to protect the security of the Mortgaged Property
encumbered by the Note and this Mortgage. All payments so made, together with
all costs and expenses so incurred, will be added to the principal amount due
under the Note and thereafter will bear interest at the rate then payable as
provided for in the Note, and will be secured by the lien and security interest
granted by the Mortgage.
11. DEFAULT. The occurrence of any of the following (time being of the
essence as to this Mortgage and all of its provisions) constitutes a "Default"
by Mortgagor, at the option of Mortgagee, under the other Note and this
Mortgage:
(a) Scheduled Payment. Mortgagor's failure to make any payment
required by the Note when due.
(b) Monetary Default. Mortgagor's failure to make any other payment
required by this Mortgage or the Note when due, within ten (10) days after
written demand therefor from Mortgagee to Mortgagor.
(c) Other. Mortgagor's failure to perform any other obligation imposed
upon Mortgagor by this Mortgage or the Note, within thirty (30) days after
written demand by Mortgagee to Mortgagor.
(d) Representation. Any representation or warranty of Mortgagor
contained in this Mortgage or in any other instrument or statement furnished in
connection herewith, proves to be incorrect or misleading in any adverse respect
as of the time when the same shall have been made.
(e) Bankruptcy. Mortgagor (i) files a voluntary petition in bankruptcy
or a petition or answer seeking or acquiescing in any reorganization or for an
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief for itself pursuant to the United States Bankruptcy Code or any similar
law or regulation, federal or state relating to any relief for debtors, now or
hereafter in effect; or (ii) makes an assignment for the benefit of creditors or
admits in writing its inability to pay or fails to pay its debts as they become
due; or (iii) suspends payment of its obligations or takes any action in
furtherance of the foregoing; or (iv) consents to or acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator or other
similar official of Mortgagor, a general partner of Mortgagor, or any guarantor,
for all or any part of the Mortgaged Property or other assets of such party, or
either; or (v) has filed against it an involuntary petition, arrangement,
composition, readjustment, liquidation, dissolution, or an answer proposing an
adjudication of it as a bankrupt or insolvent, or is subject to a reorganization
pursuant to the United States Bankruptcy Code, an action seeking to appoint a
trustee, receiver, custodian, or conservator or liquidator, or any similar law,
federal or state, now or hereafter in effect, and such action is approved by any
court of competent jurisdiction and the order approving the same shall not be
vacated or stayed within thirty (30) days from entry; or (vi) consents to the
filing of any such petition or answer, or shall fail to deny the material
allegations of the same in a timely manner.
(f) Judgments. (1) A final judgment, other than a final judgment in
connection with any condemnation, is entered against Mortgagor that (i)
adversely affects the value, use or operation of the Mortgaged Property, or (ii)
adversely affects, or reasonably may adversely affect, the validity,
enforceability or priority of the lien or security interest created by this
Mortgage or the other Note and this Mortgage, or both; or (2) execution or other
final process issues thereon with respect to the Mortgaged Property; and (3)
Mortgagor does not discharge the same or provide for its discharge in accordance
with its terms, or procure a stay of execution thereon, in any event within
thirty (30) days from entry.
(g) Liens. Any federal, state or local tax lien or any claim of lien
for labor or materials or any other lien or encumbrance of any nature whatsoever
is recorded against Mortgagor or the Mortgaged Property and is not removed by
payment or transferred to substitute security in the manner provided by law,
within ten (10) days after it is recorded in accordance with applicable law.
(h) Transfer of Property Ownership. Any sale, conveyance, transfer,
assignment, or other disposition of all or any part of the Mortgaged Property or
any ownership interest in Mortgagor (whether legal or beneficial) or possession
or use of the Mortgaged Property.
12. REMEDIES. Upon the occurrence and continuance, if applicable, of any
Default, Mortgagee may exercise any one or more of the following rights and
remedies, in addition to all other rights and remedies otherwise available at
law or in equity:
(a) Other Documents. To pursue any right or remedy provided by the
Note.
(b) Acceleration. To declare the entire unpaid amount of the Debt
together with all accrued and unpaid interest thereon immediately due and
payable with interest to be due thereon at the Default Rate set forth in the
Note.
(c) Foreclosure. To foreclose the lien of this Mortgage and obtain
possession of the Mortgaged Property, by any lawful procedure.
(d) Appointment of Receiver. That the Mortgagee may, without notice
to the Mortgagor, at any time pending a suit upon this Mortgage, apply to the
Court having jurisdiction thereof for the appointment of a receiver, and such
Court shall forthwith appoint a receiver of the Property and such receiver shall
have all the broad and effective functions and powers in anywise entrusted by a
Court to a receiver, and such appointment shall be made by such Court as an
admitted equity and a matter of absolute right to said Mortgagee, and without
reference to the adequacy of inadequacy of the value of the Property or to the
solvency or insolvency of Mortgagor or the other defendants in such proceeding,
if any, and that the rents, issues, income, revenues, profits and proceeds of
the Property shall be applied by such receiver according to the lien of this
Mortgage and the practice of such Court.
(e) Other Security. To proceed to realize upon any and all other
security for the Debt in such order as Mortgagee may elect; no such action,
suit, proceeding, judgment, levy, execution or other process will constitute an
election of remedies by Mortgagee or will in any manner alter, diminish or
impair the lien and security interest created by this Mortgage unless and until
the Debt is paid in full.
(f) Advances. To advance such monies and take such other action as is
authorized by Paragraphs 3, 7, 9 and 10 herein.
13. CUMULATIVE RIGHTS AND NON-WAIVER. No right or remedy conferred upon or
reserved to Mortgagee by this Mortgage or the Note is intended to be exclusive
of any other right or remedy; and each and every right and remedy is cumulative
and in addition to any other right or remedy otherwise available. Every right,
power, privilege and remedy granted Mortgagee by this Mortgage or the Note, or
both, or otherwise available at law or in equity may be exercised by Mortgagee
from time to time as often as Mortgagee deems expedient until the Debt is paid
in full. Mortgagee's failure to insist at any time upon the strict observance or
performance by Mortgagor of any of the provisions of this Mortgage or in the
Note, or to exercise any right or remedy provided for in this Mortgage or in the
Note will not impair any such right or remedy or be construed as a waiver or
relinquishment thereof for the future. Receipt by Mortgagee of any payment
required to be made pursuant to the Note and this Mortgage with knowledge of the
breach of any provision of the Note and this Mortgage will not constitute a
waiver of such breach. In addition to all other remedies provided in this
Mortgage, Mortgagee will be entitled, to the extent permitted by applicable law,
to injunctive relief in the case of a violation or attempted or threatened
violation of any of the provisions of the Note and this Mortgage or to a decree
ordering performance of any of the provisions of any of the foregoing.
14. NOTICES. Any notice or demand that must or may be given or made in
connection with this Mortgage must be in writing and, unless receipt is
expressly required, will be deemed given, delivered or made, as the case may be,
when delivered by personal delivery or when mailed by Express Mail, by overnight
delivery service of a nationally-recognized company, or by certified or
registered mail, return receipt requested, in any event, with sufficient postage
affixed, and addressed to the parties at the addresses written on the first page
of this Mortgage or on the signature pages of this Mortgage. Such addresses may
be changed by notice pursuant to this paragraph. Notice of change of address is
effective only upon receipt. All of the persons executing this Mortgage as
Mortgagor severally agree that a single notice to Mortgagor in the manner
provided in this paragraph will be effective to bind each such person for all
purposes.
15. TRANSFER. Mortgagor may not sell, convey, assign, transfer or
otherwise dispose of any interest in all or any portion of the Mortgaged
Property, or any ownership interest in Mortgagor without Mortgagee's prior
written consent, which consent may be withheld in Mortgagee's sole discretion.
Whether such transfer is voluntary or involuntary, or by operation of law (other
than in connection with the death, disability or incompetency of any individual
Mortgagor), any such transfer will be void as to Mortgagee, and constitute an
immediate Default under this Mortgage, without notice, in the sole discretion of
Mortgagee. Mortgagee's consent to any transfer, sale, or conveyance hereunder
shall not be deemed a consent to any subsequent transfer, sale, or conveyance
for which Mortgagee's prior written approval has not been obtained.
16. SUCCESSORS AND ASSIGNS. The provisions of this Mortgage inure to the
benefit of Mortgagee and its successors and assigns, and bind all persons
executing this Mortgage as Mortgagor and their respective heirs, legal
representatives, successors and assigns.
17. CHOICE OF LAW. The provisions of this Mortgage are to be interpreted,
construed, applied and enforced in accordance with the laws of the State of
Florida, regardless of where this Mortgage is executed, delivered or breached,
or where any payment or other performance required by this Mortgage is made,
where any action or other proceeding involving this Mortgage is instituted, or
whether the laws of the State of Florida otherwise would apply the laws of
another jurisdiction; the foregoing choice of law provisions will apply to the
Note and this Mortgage.
18. SEVERABILITY. The provisions of the Note and this Mortgage are
severable at Mortgagee's option so that if any provision is declared by a court
of competent jurisdiction to be invalid or unenforceable, no other provision
will be affected by such invalidity or unenforceability, but will remain in
force and effect according to its original terms, if Mortgagee so elects.
19. TERMS. Wherever used in this Mortgage or the other Note and this
Mortgage, or both, and unless expressly provided otherwise: (i) use of the
singular includes the plural, and vice versa; (ii) use of one gender includes
all genders; (iii) use of the term "include" or "including" is always without
limitation; (iv) use of the words, "should," "must" and "will" has the same
legal effect as the use of the word "shall"; (v) the term "day" means a banking
day which shall be a day on which Mortgagee and other banks are open for
the transaction of business, excluding any national holidays, and any
performance which would otherwise be required on a day other than a banking day
shall be timely performed in such instance, if performed on the next succeeding
banking day; (vi) any definition herein incorporating one or more documents or
items shall refer to such items "singularly and collectively", and (vii)
"person" means any natural person or artificial entity having legal capacity.
20. HEADINGS. Paragraph headings and subheadings are for indexing purposes
only and are not to be used to interpret, construe, apply or enforce the
provisions of this Mortgage.
21. TIME OF THE ESSENCE. Time is of the essence with respect to each and
every covenant, agreement, and obligation of Mortgagor under this Mortgage and
the Note.
22. ORAL MODIFICATION INEFFECTIVE. No term of this Mortgage or any other of
the Note and this Mortgage, or such documents, may be waived, changed, modified,
discharged, or terminated except by an instrument in writing signed by the party
against which enforcement of the waiver, change, modification, discharge, or
termination is sought.
IN WITNESS WHEREOF, Mortgagor has executed and delivered this Mortgage as
of the date stated above.
Signed, sealed and delivered MORTGAGOR: THE FRESH JUICE COMPANY
in the presence of:
/s/ Xxx X. Xxxxxxx /s/ Xxxxxx Xxxxx
Type/Print: Xxx X. Xxxxxxx By: Xxxxxx Xxxxx
Title: President
/s/ Xxxxx Xxxxxx
Type/Print: Xxxxx Xxxxxx
STATE OF New York
COUNTY OF Kings
The foregoing instrument was acknowledged before me this 31st day of July,
1995, by Xxxxxx Xxxxx, the President of Fresh Juice Company, a Delaware
corporation and who is (x) known to me or ( ) produced as
identification.
/s/ Xxxxx Xxxxxxxxxxx
-----------------------
Notary Public
(Notarial Seal)
XXXXX XXXXXXXXXXX Xxxxx Xxxxxxxxxxx
Notary Public, State of New York Type or Print Name
No. 00-0000000
Qualified in Nassau County
Commission expires on Sept. 30, 1996 September 30, 1996
My Commission expires
EXHIBIT "A"
PERMITTED ENCUMBRANCES
1. Ad valorem real property taxes for the year of closing and subsequent years;
EXHIBIT B
Starting at the most Southerly corner of Lot 3A of Polk Packing Association
Subdivision as recorded in Plat Book 30, Page 42, of the public records of Polk
County, Florida, run thence South 37 degrees 46' East along the Northeast
Right-of-Way of the Xxxxxx Loop Road a distance of 612.7 feet, thence North 48
degrees 37' East a distance of 381.44 feet to the Northerly Right-of-Way
boundary of the S.A.L.R.R. for the point of Beginning; run thence North 48
degrees 37' East a distance of 470 feet more or less to the center of the
Wahneta Drainage District Canal from Lake Lulu, thence Southerly along the
center of said canal to its intersection with the Northerly Right-of-Way
boundary of the S.A.L.R.R., thence Northwesterly along said R.R.
Right-of-Way to the Point of Beginning; the above described property being a
part of Lots 17 and 19 of Wahneta Farms Subdivision as reported in Plat Book 1,
Pages 82A and 82B, of the public records of Polk County, Florida.
