Exhibit 10.20
After Recording Return To:
Staar Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxx
__________________ [Space Above This Line for Recording Data] __________________
MORTGAGE
DEFINITIONS
Words used in multiple sections of this document are defined below and other
words are defined in Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding
the usage of words used in this document are also provided in Section 16.
(A) "SECURITY INSTRUMENT" means this document, which is dated July 16, 2004,
together with all Riders to this document.
(B) "BORROWER" is XXXXX X. XXXXXX, an individual. Xxxxxxxx is the mortgagor
under this Security Instrument.
(C) "LENDER" is STAAR SURGICAL COMPANY, a Delaware corporation. Xxxxxx's address
is 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. Xxxxxx is the mortgagee under
this Security Instrument.
(D) "NOTE" means, collectively and individually (i) the promissory note ("Note
A") signed by Xxxxxxxx and dated June 16, 1999, in the face principal amount of
$1,258,000.00, and (ii) the promissory note ("Note B") signed by Xxxxxxxx and
dated June 2, 2000, in the face principal amount of $272,500.00. Note A states
that Borrower owes Lender One Million Two Hundred Fifty-Eight Thousand Dollars
(U.S. $1,258,000.00) plus interest. Xxxxxxxx has promised to pay the debt
evidenced by Note A in full not later than June 15, 2004. (By a Forbearance
Agreement dated June 16, 2004 (the "Forbearance Agreement") between Borrower and
Lender, Xxxxxx agreed to forebear on the exercise of its rights and remedies
under the Note and the Pledge Agreement (as defined in the Forbearance
Agreement) until March 15, 2005. Note B states the Borrower owes Lender Two
Hundred Seventy-Two Thousand Five Hundred Dollars (U.S. $272,500.00) plus
interest. Xxxxxxxx has promised to pay the debt evidenced by Note B in full no
later than June 1, 2005.
(E) "PROPERTY" means the property that is described below under the heading
"Transfer of Rights in the Property."
(F) "LOAN" means the debt evidenced by the Note, plus interest, any prepayment
charges and late charges due under the Note, and all sums due under this
Security Instrument, plus interest.
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(G) [Intentionally omitted.]
(H) "APPLICABLE LAW" means all controlling applicable federal, state and local
statutes, regulations, ordinances and administrative rules and orders (that have
the effect of law) as well as all applicable final, non-appealable judicial
opinions.
(I) "COMMUNITY ASSOCIATION DUES, FEES, AND ASSESSMENTS" means all dues, fees,
assessments and other charges that are imposed on Borrower or the Property by a
condominium association, homeowners association or similar organization.
(J) "ELECTRONIC FUNDS TRANSFER" means any transfer of funds, other than a
transaction originated by check, draft, or similar paper instrument, which is
initiated through an electronic terminal, telephonic instrument, computer, or
magnetic tape so as to order, instruct, or authorize a financial institution to
debit or credit an account. Such term includes, but is not limited to,
point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, wire transfers, and automated clearinghouse transfers.
(K) [Intentionally omitted.]
(L) "MISCELLANEOUS PROCEEDS" means any compensation, settlement, award of
damages, or proceeds paid by any third party (other than insurance proceeds paid
under the coverages described in Section 5) for: (i) damage to, or destruction
of, the Property; (ii) condemnation or other taking of all or any part of the
Property; (iii) conveyance in. lieu of condemnation; or (iv) misrepresentations
of, or omissions as to, the value and/or condition of the Property.
(M) "MORTGAGE INSURANCE" means insurance protecting Lender against the
nonpayment of, or default on, the Loan.
(N) "PERIODIC PAYMENT" means the regularly scheduled amount due for (i)
principal and interest under the Note, plus (ii) any amounts under Section 3 of
this Security Instrument.
(O) [Intentionally omitted.]
(P) "SUCCESSOR IN INTEREST OF BORROWER" means any party that has taken title to
the Property, whether or not that party has assumed Xxxxxxxx's obligations under
the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and
all renewals, extensions and modifications of the Note; and (ii) the performance
of Borrower's covenants and agreements under this Security Instrument and the
Note. For this purpose, Xxxxxxxx does hereby mortgage, grant and convey to
Lender, the following described property, which currently has the address of 000
XX Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000 ("Property Address"):
See Exhibit "A" attached hereto and incorporated herein by this reference.
TOGETHER WITH all the improvements now or hereafter erected on the
property, and all easements, appurtenances, and fixtures now or hereafter a part
of the property. All replacements and additions shall also be covered by this
Security Instrument. All of the foregoing is referred to in this Security
Instrument as the "Property."
BORROWER COVENANTS that Xxxxxxxx is lawfully seized of the estate hereby
conveyed and has the right to mortgage, grant and convey the Property and that
the Property
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is unencumbered, except for encumbrances of record. Borrower warrants and will
defend generally the title to the Property against all claims and demands,
subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and
non-uniform covenants with limited variations by jurisdiction to constitute a
uniform security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL, INTEREST, ESCROW ITEMS, PREPAYMENT CHARGES, AND
LATE CHARGES. Borrower shall pay when due the principal of, and interest on, the
debt evidenced by the Note and any prepayment charges and late charges due under
the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3.
Payments due under the Note and this Security Instrument shall be made in U.S.
currency. However, if any check or other instrument received by Lender as
payment under the Note or this Security Instrument is returned to Lender unpaid,
Lender may require that any or all subsequent payments due under the Note and
this Security Instrument be made in one or more of the following forms, as
selected by Lender: (a) cash; (b) money order; (c) certified check, bank check,
treasurer's check or cashier's check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality, or
entity; or (d) Electronic Funds Transfer.
Payments are deemed received by Lender when received at the location
designated in the Note or at such other location as may be designated by Lender
in accordance with the notice provisions in Section 15. Lender may return any
payment or partial payment if the payment or partial payments are insufficient
to bring the Loan current. Lender may accept any payment or partial payment
insufficient to bring the Loan current, without waiver of any rights hereunder
or prejudice to its rights to refuse such payment or partial payments in the
future, but Lender is not obligated to apply such payments at the time such
payments are accepted. If each Periodic Payment is applied as of its scheduled
due date, then Lender need not pay interest on unapplied funds. Lender may hold
such unapplied funds until Borrower makes payment to bring the Loan current. If
Borrower does not do so within a reasonable period of time, Lender shall either
apply such funds or return them to Borrower. If not applied earlier, such funds
will be applied to the outstanding principal balance under the Note immediately
prior to foreclosure. No offset or claim which Borrower might have now or in the
future against Lender shall relieve Borrower from making payments due under the
Note and this Security Instrument or performing the covenants and agreements
secured by this Security Instrument.
2. APPLICATION OF PAYMENTS OR PROCEEDS. Except as otherwise described in
this Section 2, all payments accepted and applied by Lender shall be applied in
the following order of priority:
(a) interest due under the Note; (b) principal due under the Note; (c) amounts
due under Section 3. Such payments shall be applied to each Periodic Payment in
the order in which it became due. Any remaining amounts shall be applied first
to late charges, second to any other amounts due under this Security Instrument,
and then to reduce the principal balance of the Note.
If Lender receives a payment from Borrower for a delinquent Periodic
Payment which includes a sufficient amount to pay any late charge due, the
payment may be applied
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to the delinquent payment and the late charge. If more than one Periodic Payment
is outstanding, Lender may apply any payment received from Borrower to the
repayment of the Periodic Payments if, and to the extent that, each payment can
be paid in full. To the extent that any excess exists after the payment is
applied to the full payment of one or more Periodic Payments, such excess may be
applied to any late charges due. Voluntary prepayments shall be applied first to
any prepayment charges and then as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds
to principal due under the Note shall not extend or postpone the due date, or
change the amount, of the Periodic Payments.
3. FIRST MORTGAGE. This Security Instrument is subordinate to a mortgage
in favor of Virtual Bank, a Division of Lydian Private Bank, securing a note in
the amount of $1,500,000.00 (the "First Mortgage"). Xxxxxxxx hereby agrees that
the current outstanding principal balance of the indebtedness secured by the
First Mortgage does not exceed $1,500,000.00. Xxxxxxxx further agrees that
Borrower shall pay all amounts secured by the First Mortgage when due and
perform all of its obligations under the First Mortgage. Any default under the
First Mortgage shall constitute a default under this Security Instrument.
4. CHARGES; LIENS. Borrower shall pay all taxes, assessments, charges,
fines, and impositions attributable to the Property which can attain priority
over this Security Instrument, leasehold payments or ground rents on the
Property, if any, and Community Association Dues, Fees, and Assessments, if any.
To the extent that these items are Escrow Items, Borrower shall pay them in the
manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this
Security Instrument unless Xxxxxxxx: (a) agrees in writing to the payment of the
obligation secured by the lien in a manner acceptable to Lender, but only so
long as Borrower is performing such agreement; (b) contests the lien in good
faith by, or defends against enforcement of the lien in, legal proceedings which
in Xxxxxx's opinion operate to prevent the enforcement of the lien while those
proceedings are pending, but only until such proceedings are concluded; or (c)
secures from the holder of the lien an agreement satisfactory to Lender
subordinating the lien to this Security Instrument. If Lender determines that
any part of the Property is subject to a lien which can attain priority over
this Security Instrument, Lender may give Borrower a notice identifying the
lien. Within 10 days of the date on which that notice is given, Borrower shall
satisfy the lien or take one or more of the actions set forth above in this
Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax
verification and/or reporting service used by Lender in connection with this
Loan.
5. PROPERTY INSURANCE. Borrower shall keep the improvements now existing
or hereafter erected on the Property insured against loss by fire, hazards
included within the term "extended coverage," and any other hazards including,
but not limited to, earthquakes and floods, for which Lender requires insurance.
This insurance shall be maintained in the amounts (including deductible levels)
and for the periods that Lender requires. What Lender requires pursuant to the
preceding sentences can change during the term of the Loan. The insurance
carrier providing the insurance shall be chosen by Borrower subject to Xxxxxx's
right to disapprove Borrower's choice, which right shall not be exercised
unreasonably. Lender may require Borrower to pay, in connection with this Loan,
either: (a) a one-time
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charge for flood zone determination, certification and tracking services; or (b)
a one-time charge for flood zone determination and certification services and
subsequent charges each time remappings or similar changes occur which
reasonably might affect such determination or certification. Borrower shall also
be responsible for the payment of any fees imposed by the Federal Emergency
Management Agency in connection with the review of any flood zone determination
resulting from an objection by Borrower.
If Borrower fails to maintain any of the coverages described above, Lender
may obtain insurance coverage, at Xxxxxx's option and Borrower's expense. Lender
is under no obligation to purchase any particular type or amount of coverage.
Therefore, such coverage shall cover Lender, but might or might not protect
Borrower, Borrower's equity in the Property, or the contents of the Property,
against any risk, hazard or liability and might provide greater or lesser
coverage than was previously in effect. Borrower acknowledges that the cost of
the insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Xxxxxx
under this Section 5 shall become additional debt of Borrower secured by this
Security Instrument. These amounts shall bear interest at the Note rate from the
date of disbursement and shall be payable, with such interest, upon notice from
Lender to Borrower requesting payment.
All insurance policies required by Xxxxxx and renewals of such policies
shall be subject to Xxxxxx's right to disapprove such policies, shall include a
standard mortgage clause, and shall name Xxxxxx as mortgagee and/or as an
additional loss payee. Lender shall have the right to hold the policies and
renewal certificates. If Lender requires, Borrower shall promptly give to Lender
all receipts of paid premiums and renewal notices. If Borrower obtains any form
of insurance coverage, not otherwise required by Lender, for damage to, or
destruction of, the Property, such policy shall include a standard mortgage
clause and shall name Xxxxxx as mortgagee and/or as an additional loss payee.
In the event of loss, Borrower shall give prompt notice to the insurance
carrier and Lender. Lender may make proof of loss if not made promptly by
Xxxxxxxx. Unless Lender and Borrower otherwise agree in writing, any insurance
proceeds, whether or not the underlying insurance was required by Lender, shall
be applied to restoration or repair of the Property, if the restoration or
repair is economically feasible and Lender's security is not lessened. During
such repair and restoration period, Lender shall have the right to hold such
insurance proceeds until Xxxxxx has had an opportunity to inspect such Property
to ensure the work has been completed to Lender's satisfaction, provided that
such inspection shall be undertaken promptly. Lender may disburse proceeds for
the repairs and restoration in a single payment or in a series of progress
payments as the work is completed. Unless an agreement is made in writing or
Applicable Law requires interest to be paid on such insurance proceeds, Lender
shall not be required to pay Borrower any interest or earnings on such proceeds.
Fees for public adjusters, or other third parties, retained by Borrower shall
not be paid out of the insurance proceeds and shall be the sole obligation of
Borrower. If the restoration or repair is not economically feasible or Lender's
security would be lessened, the insurance proceeds shall be applied to the sums
secured by this Security Instrument, whether or not then due, with the excess,
if any, paid to Borrower. Such insurance proceeds shall be applied in the order
provided for in Section 2.
If Xxxxxxxx abandons the Property, Lender may file, negotiate and settle
any available insurance claim and related matters. If Borrower does not respond
within 30 days
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to a notice from Xxxxxx that the insurance carrier has offered to settle a
claim, then Xxxxxx may negotiate and settle the claim. The 30-day period will
begin when the notice is given. In either event, or if Lender acquires the
Property under Section 22 or otherwise, Borrower hereby assigns to Lender (a)
Borrower's rights to any insurance proceeds in an amount not to exceed the
amounts unpaid under the Note or this Security Instrument, and (b) any other of
Borrower's rights (other than the right to any refund of unearned premiums paid
by Borrower) under all insurance policies covering the Property, insofar as such
rights are applicable to the coverage of the Property. Lender may use the
insurance proceeds either to repair or restore the Property or to pay amounts
unpaid under the Note or this Security Instrument, whether or not then due.
6. [Intentionally omitted.]
7. PRESERVATION, MAINTENANCE AND PROTECTION OF THE PROPERTY; INSPECTIONS.
Borrower shall not destroy, damage or impair the Property, allow the Property to
deteriorate or commit waste on the Property. Whether or not Borrower is residing
in the Property, Borrower shall maintain the Property in order to prevent the
Property from deteriorating or decreasing in value due to its condition. Unless
it is determined pursuant to Section 5 that repair or restoration is not
economically feasible, Borrower shall promptly repair the Property if damaged to
avoid further deterioration or damage. If insurance or condemnation proceeds are
paid in connection with damage to, or the taking of, the Property, Borrower
shall be responsible for repairing or restoring the Property only if Lender has
released proceeds for such purposes. Lender may disburse proceeds for the
repairs and restoration in a single payment or in a series of progress payments
as the work is completed. If the insurance or condemnation proceeds are not
sufficient to repair or restore the Property, Borrower is not relieved of
Borrower's obligation for the completion of such repair or restoration.
Lender or its agent may make reasonable entries upon and inspections of
the Property. If it has reasonable cause, Xxxxxx may inspect the interior of the
improvements on the Property. Lender shall give Borrower notice at the time of
or prior to such an interior inspection specifying such reasonable cause.
8. [Intentionally omitted.]
9. PROTECTION OF XXXXXX'S INTEREST IN THE PROPERTY AND RIGHTS UNDER THIS
SECURITY INSTRUMENT. If (a) Borrower fails to perform the covenants and
agreements contained in this Security Instrument, (b) there is a legal
proceeding that might significantly affect Lender's interest in the Property
and/or rights under this Security Instrument (such as a proceeding in
bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or
regulations), or (c) Borrower has abandoned the Property, then Lender may do and
pay for whatever is reasonable or appropriate to protect Xxxxxx's interest in
the Property and rights under this Security Instrument, including protecting
and/or assessing the value of the Property, and securing and/or repairing the
Property. Xxxxxx's actions can include, but are not limited to: (a) paying any
sums secured by a lien which has priority over this Security Instrument; (b)
appearing in court; and (c) paying reasonable attorneys' fees to protect its
interest in the Property and/or rights under this Security Instrument, including
its secured position in a bankruptcy proceeding. Securing the Property includes,
but is not limited to, entering the Property to make repairs, change locks,
replace or board up doors and windows, drain water from pipes, eliminate
building or other code violations or dangerous conditions, and have
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utilities turned on or off. Although Lender may take action under this Section
9, Lender does not have to do so and is not under any duty or obligation to do
so. It is agreed that Lender incurs no liability for not taking any or all
actions authorized under this Section 9.
Any amounts disbursed by Lender under this Section 9 shall become
additional debt of Borrower secured by this Security Instrument. These amounts
shall bear interest at the Note rate from the date of disbursement and shall be
payable, with such interest, upon notice from Lender to Borrower requesting
payment.
If this Security Instrument is on a leasehold, Borrower shall comply with
all the provisions of the lease. If Xxxxxxxx acquires fee title to the Property,
the leasehold and the fee title shall not merge unless Xxxxxx agrees to the
merger in writing.
10. [Intentionally omitted.]
11. ASSIGNMENT OF MISCELLANEOUS PROCEEDS; FORFEITURE. All Miscellaneous
Proceeds are hereby assigned to and shall be paid to Lender.
If the Property is damaged, such Miscellaneous Proceeds shall be applied
to restoration or repair of the Property, if the restoration or repair is
economically feasible and Lender's security is not lessened. During such repair
and restoration period, Lender shall have the right to hold such Miscellaneous
Proceeds until Lender has had an opportunity to inspect such Property to ensure
the work has been completed to Lender's satisfaction, provided that such
inspection shall be undertaken promptly. Lender may pay for the repairs and
restoration in a single disbursement or in a series of progress payments as the
work is completed. Unless an agreement is made in writing or Applicable Law
requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
required to pay Borrower any interest or earnings on such Miscellaneous
Proceeds. If the restoration or repair is not economically feasible or Lender's
security would be lessened, the Miscellaneous Proceeds shall be applied to the
sums secured by this Security Instrument, whether or not then due, with the
excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be applied
in the order provided for in Section 2.
In the event of a total taking, destruction, or loss in value of the
Property, the Miscellaneous Proceeds shall be applied to the sums secured by
this Security Instrument, whether or not then due, with the excess, if any, paid
to Borrower.
In the event of a partial taking, destruction, or loss in value of the
Property in which the fair market value of the Property immediately before the
partial taking, destruction, or loss in value is equal to or greater than the
amount of the sums secured by this Security Instrument immediately before the
partial taking, destruction, or loss in value, unless Borrower and Lender
otherwise agree in writing, the sums secured by this Security Instrument shall
be reduced by the amount of the Miscellaneous Proceeds multiplied by the
following fraction: (a) the total amount of the sums secured immediately before
the partial taking, destruction, or loss in value divided by (b) the fair market
value of the Property immediately before the partial taking, destruction, or
loss in value. Any balance shall be paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the
Property in which the fair market value of the Property immediately before the
partial taking, destruction, or loss in value is less than the amount of the
sums secured immediately before the partial taking, destruction, or loss in
value, unless Borrower and Lender otherwise agree in writing,
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the Miscellaneous Proceeds shall be applied to the sums secured by this Security
Instrument whether or not the sums are then due.
If the Property is abandoned by Xxxxxxxx, or if, after notice by Xxxxxx to
Borrower that the Opposing Party (as defined in the next sentence) offers to
make an award to settle a claim for damages, Xxxxxxxx fails to respond to Lender
within 30 days after the date the notice is given, Lender is authorized to
collect and apply the Miscellaneous Proceeds either to restoration or repair of
the Property or to the sums secured by this Security Instrument, whether or not
then due. "Opposing Party" means the third party that owes Borrower
Miscellaneous Proceeds or the party against whom Xxxxxxxx has a right of action
in regard to Miscellaneous Proceeds.
Borrower shall be in default if any action or proceeding, whether civil or
criminal, is begun that, in Xxxxxx's judgment, could result in forfeiture of the
Property or other material impairment of Xxxxxx's interest in the Property or
rights under this Security Instrument. Borrower can cure such a default and, if
acceleration has occurred, reinstate as provided in Section 19, by causing the
action or proceeding to be dismissed with a ruling that, in Xxxxxx's judgment,
precludes forfeiture of the Property or other material impairment of Xxxxxx's
interest in the Property or rights under this Security Instrument. The proceeds
of any award or claim for damages that are attributable to the impairment of
Xxxxxx's interest in the Property are hereby assigned and shall be paid to
Lender.
All Miscellaneous Proceeds that are not applied to restoration or repair
of the Property shall be applied in the order provided for in Section 2.
12. BORROWER NOT RELEASED; FORBEARANCE BY XXXXXX NOT A WAIVER. Extension
of the time for payment or modification of amortization of the sums secured by
this Security Instrument granted by Xxxxxx to Borrower or any Successor in
Interest of Borrower shall not operate to release the liability of Borrower or
any Successors in Interest of Borrower. Lender shall not be required to commence
proceedings against any Successor in Interest of Borrower or to refuse to extend
time for payment or otherwise modify amortization of the sums secured by this
Security Instrument by reason of any demand made by the original Borrower or any
Successors in Interest of Borrower. Any forbearance by Xxxxxx in exercising any
right or remedy including, without limitation, Xxxxxx's acceptance of payments
from third persons, entities or Successors in Interest of Borrower or in amounts
less than the amount then due, shall not be a waiver of or preclude the exercise
of any right or remedy.
13. JOINT AND SEVERAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND.
Borrower covenants and agrees that Xxxxxxxx's obligations and liability shall be
joint and several. However, any Borrower who co-signs this Security Instrument
but does not execute the Note (a "co-signer"):
(a) is co-signing this Security Instrument only to mortgage, grant and convey
the co-signer's interest in the Property under the terms of this Security
Instrument; (b) is not personally obligated to pay the sums secured by this
Security Instrument; and (c) agrees that Lender and any other Borrower can agree
to extend, modify, forbear or make any accommodations with regard to the terms
of this Security Instrument or the Note without the co-signer's consent.
Subject to the provisions of Section 18, any Successor in Interest of
Borrower who assumes Xxxxxxxx's obligations under this Security Instrument in
writing, and is approved by Xxxxxx, shall obtain all of Borrower's rights and
benefits under this Security Instrument. Borrower shall not be released from
Borrower's obligations and liability under this Security
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Instrument unless Xxxxxx agrees to such release in writing. The covenants and
agreements of this Security Instrument shall bind (except as provided in Section
20) and benefit the successors and assigns of Lender.
14. LOAN CHARGES. Xxxxxx may charge Borrower fees for services performed
in connection with Xxxxxxxx's default, for the purpose of protecting Xxxxxx's
interest in the Property and rights under this Security Instrument, including,
but not limited to, attorneys' fees, property inspection and valuation fees. In
regard to any other fees, the absence of express authority in this Security
Instrument to charge a specific fee to Borrower shall not be construed as a
prohibition on the charging of such fee. Lender may not charge fees that are
expressly prohibited by this Security Instrument or by Applicable Law.
If the Loan is subject to a law which sets maximum loan charges, and that
law is finally interpreted so that the interest or other loan charges collected
or to be collected in connection with the Loan exceed the permitted limits,
then: (a) any such loan charge shall be reduced by the amount necessary to
reduce the charge to the permitted limit; and (b) any sums already collected
from Borrower which exceeded permitted limits will be refunded to Borrower.
Lender may choose to make this refund by reducing the principal owed under the
Note or by making a direct payment to Borrower. If a refund reduces principal,
the reduction will be treated as a partial prepayment without any prepayment
charge (whether or not a prepayment charge is provided for under the Note).
Xxxxxxxx's acceptance of any such refund made by direct payment to Borrower will
constitute a waiver of any right of action Borrower might have arising out of
such overcharge.
15. NOTICES. All notices given by Borrower or Lender in connection with
this Security Instrument must be in writing. Any notice to Borrower in
connection with this Security Instrument shall be deemed to have been given to
Borrower when mailed by first class mail or when actually delivered to
Xxxxxxxx's notice address if sent by other means. Notice to any one Borrower
shall constitute notice to all Borrowers unless Applicable Law expressly
requires otherwise. The notice address shall be the Property Address unless
Xxxxxxxx has designated a substitute notice address by notice to Lender.
Borrower shall promptly notify Lender of Xxxxxxxx's change of address. If Lender
specifies a procedure for reporting Xxxxxxxx's change of address, then Borrower
shall only report a change of address through that specified procedure. There
may be only one designated notice address under this Security Instrument at any
one time. Any notice to Lender shall be given by delivering it or by mailing it
by first class mail to Xxxxxx's address stated herein unless Xxxxxx has
designated another address by notice to Borrower. Any notice in connection with
this Security Instrument shall not be deemed to have been given to Lender until
actually received by Xxxxxx. If any notice required by this Security Instrument
is also required under Applicable Law, the Applicable Law requirement will
satisfy the corresponding requirement under this Security Instrument.
16. GOVERNING LAW; SEVERABILITY; RULES OF CONSTRUCTION. This Security
Instrument shall be governed by federal law and the law of the jurisdiction in
which the Property is located. All rights and obligations contained in this
Security Instrument are subject to any requirements and limitations of
Applicable Law. Applicable Law might explicitly or implicitly allow the parties
to agree by contract or it might be silent, but such silence shall not be
construed as a prohibition against agreement by contract. In the event that any
provision or clause of this Security Instrument or the Note conflicts with
Applicable
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Law, such conflict shall not affect other provisions of this Security Instrument
or the Note which can be given effect without the conflicting provision.
As used in this Security Instrument: (a) words of the masculine gender
shall mean and include corresponding neuter words or words of the feminine
gender; (b) words in the singular shall mean and include the plural and vice
versa; and (c) the word "may" gives sole discretion without any obligation to
take any action.
17. XXXXXXXX'S COPY. Borrower shall be given one copy of the Note and of
this Security Instrument.
18. TRANSFER OF THE PROPERTY OR A BENEFICIAL INTEREST IN BORROWER. As used
in this Section 18, "Interest in the Property" means any legal or beneficial
interest in the Property, including, but not limited to, those beneficial
interests transferred in a bond for deed, contract for deed, installment sales
contract or escrow agreement, the intent of which is the transfer of title by
Xxxxxxxx at a future date to a purchaser.
If all or any part of the Property or any Interest in the Property is sold
or transferred (or if Borrower is not a natural person and a beneficial interest
in Borrower is sold or transferred) without Xxxxxx's prior written consent,
Lender may require immediate payment in full of all sums secured by this
Security Instrument. However, this option shall not be exercised by Lender if
such exercise is prohibited by Applicable Law.
If Lender exercises this option, Lender shall give Borrower notice of
acceleration. The notice shall provide a period of not less than 30 days from
the date the notice is given in accordance with Section 15 within which Borrower
must pay all sums secured by this Security Instrument. If Xxxxxxxx fails to pay
these sums prior to the expiration of this period, Lender may invoke any
remedies permitted by this Security Instrument without further notice or demand
on Borrower.
19. XXXXXXXX'S RIGHT TO REINSTATE AFTER ACCELERATION. If Borrower meets
certain conditions, Borrower shall have the right to have enforcement of this
Security Instrument discontinued at any time prior to the earliest of: (a) five
days before sale of the Property pursuant to any power of sale contained in this
Security Instrument; (b) such other period as Applicable Law might specify for
the termination of Borrower's right to reinstate; or (c) entry of a judgment
enforcing this Security Instrument. Those conditions are that Borrower: (a) pays
Lender all sums which then would be due under this Security Instrument and the
Note as if no acceleration had occurred; (b) cures any default of any other
covenants or agreements; (c) pays all expenses incurred in enforcing this
Security Instrument, including, but not limited to, reasonable attorneys' fees,
property inspection and valuation fees, and other fees incurred for the purpose
of protecting Lender's interest in the Property and rights under this Security
Instrument; and (d) takes such action as Lender may reasonably require to assure
that Xxxxxx's interest in the Property and rights under this Security
Instrument, and Xxxxxxxx's obligation to pay the sums secured by this Security
Instrument, shall continue unchanged. Lender may require that Borrower pay such
reinstatement sums and expenses in one or more of the following forms, as
selected by Lender: (a) cash; (b) money order; (c) certified check, bank check,
treasurer's check or cashier's check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality or
entity; or (d) Electronic Funds Transfer. Upon reinstatement by Xxxxxxxx, this
Security Instrument and obligations secured hereby shall
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remain fully effective as if no acceleration had occurred. However, this right
to reinstate shall not apply in the case of acceleration under Section 18.
20. SALE OF NOTE; NOTICE OF GRIEVANCE. The Note or a partial interest in
the Note (together with this Security Instrument) can be sold one or more times
without prior notice to Borrower.
Neither Borrower nor Lender may commence, join, or be joined to any
judicial action (as either an individual litigant or the member of a class) that
arises from the other party's actions pursuant to this Security Instrument or
that alleges that the other party has breached any provision of, or any duty
owed by reason of, this Security Instrument, until such Borrower or Lender has
notified the other party (with such notice given in compliance with the
requirements of Section 15) of such alleged breach and afforded the other party
hereto a reasonable period after the giving of such notice to take corrective
action. If Applicable Law provides a time period which must elapse before
certain action can be taken, that time period will be deemed to be reasonable
for purposes of this paragraph. The notice of acceleration and opportunity to
cure given to Borrower pursuant to Section 22 and the notice of acceleration
given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice
and opportunity to take corrective action provisions of this Section 20.
21. HAZARDOUS SUBSTANCES. As used in this Section 21: (a) "Hazardous
Substances" are those substances defined as toxic or hazardous substances,
pollutants, or wastes by Environmental Law and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic
pesticides and herbicides, volatile solvents, materials containing asbestos or
formaldehyde, and radioactive materials; (b) "Environmental Law" means federal
laws and laws of the jurisdiction where the Property is located that relate to
health, safety or environmental protection; (c) "Environmental Cleanup" includes
any response action, remedial action, or removal action, as defined in
Environmental Law; and (d) an "Environmental Condition" means a condition that
can cause, contribute to, or otherwise trigger an Environmental Cleanup.
Borrower shall not cause or permit the presence, use, disposal, storage,
or release of any Hazardous Substances, or threaten to release any Hazardous
Substances, on or in the Property. Borrower shall not do, nor allow anyone else
to do, anything affecting the Property (a) that is in violation of any
Environmental Law, (b) which creates an Environmental Condition, or (c) which,
due to the presence, use, or release of a Hazardous Substance, creates a
condition that adversely affects the value of the Property. The preceding two
sentences shall not apply to the presence, use, or storage on the Property of
small quantities of Hazardous Substances that are generally recognized to be
appropriate to normal residential uses and to maintenance of the Property
(including, but not limited to, hazardous substances in consumer products).
Borrower shall promptly give Lender written notice of(a) any
investigation, claim, demand, lawsuit or other action by any governmental or
regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any
Environmental Condition, including but not limited to, any spilling, leaking,
discharge, release or threat of release of any Hazardous Substance, and (c) any
condition caused by the presence, use or release of a Hazardous Substance which
adversely affects the value of the Property. If Xxxxxxxx learns, or is notified
by any governmental or regulatory authority, or any private party, that any
removal or other
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remediation of any Hazardous Substance affecting the Property is necessary,
Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law. Nothing herein shall create any obligation on Lender for an
Environmental Cleanup.
NON-UNIFORM COVENANTS. Xxxxxxxx and Xxxxxx further covenant and agree as
follows: 22. ACCELERATION; REMEDIES. LENDER SHALL GIVE NOTICE TO BORROWER PRIOR
TO ACCELERATION FOLLOWING XXXXXXXX'S BREACH OF ANY COVENANT OR AGREEMENT IN THIS
SECURITY INSTRUMENT (BUT NOT PRIOR TO ACCELERATION UNDER SECTION 18 UNLESS
APPLICABLE LAW PROVIDES OTHERWISE). THE NOTICE SHALL SPECIFY: (a) THE DEFAULT;
(b) THE ACTION REQUIRED TO CURE THE DEFAULT; (c) A DATE, NOT LESS THAN 30 DAYS
FROM THE DATE THE NOTICE IS GIVEN TO BORROWER, BY WHICH THE DEFAULT MUST BE
CURED; AND (d) THAT FAILURE TO CURE THE DEFAULT ON OR BEFORE THE DATE SPECIFIED
IN THE NOTICE MAY RESULT IN ACCELERATION OF THE SUMS SECURED BY THIS SECURITY
INSTRUMENT, FORECLOSURE BY JUDICIAL PROCEEDING AND SALE OF THE PROPERTY. THE
NOTICE SHALL FURTHER INFORM BORROWER OF THE RIGHT TO REINSTATE AFTER
ACCELERATION AND THE RIGHT TO ASSERT IN THE FORECLOSURE PROCEEDING THE
NONEXISTENCE OF A DEFAULT OR ANY OTHER DEFENSE OF BORROWER TO ACCELERATION AND
FORECLOSURE. IF THE DEFAULT IS NOT CURED ON OR BEFORE THE DATE SPECIFIED IN THE
NOTICE, LENDER AT ITS OPTION MAY REQUIRE IMMEDIATE PAYMENT IN FULL OF ALL SUMS
SECURED BY THIS SECURITY INSTRUMENT WITHOUT FURTHER DEMAND AND MAY FORECLOSE
THIS SECURITY INSTRUMENT BY JUDICIAL PROCEEDING. XXXXXX SHALL BE ENTITLED TO
COLLECT ALL EXPENSES INCURRED IN PURSUING THE REMEDIES PROVIDED IN THIS SECTION
22, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES AND COSTS OF TITLE
EVIDENCE.
23. RELEASE. Upon payment of all sums secured by this Security Instrument,
Lender shall release this Security Instrument. Borrower shall pay any
recordation costs. Xxxxxx may charge Borrower a fee for releasing this Security
Instrument, but only if the fee is paid to a third party for services rendered
and the charging of the fee is permitted under Applicable Law.
24. ATTORNEYS' FEES. As used in this Security Instrument and the Note,
attorneys' fees shall include those awarded by an appellate court and any
attorneys' fees incurred in a bankruptcy proceeding.
25. JURY TRIAL WAIVER. The Borrower hereby waives any right to a trial by
jury in any action, proceeding, claim, or counterclaim, whether in contract or
tort, at law or in equity, arising out of or in any way related to this Security
Instrument or the Note.
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BY SIGNING XXXXX, Xxxxxxxx accepts and agrees to the terms and covenants
contained in this Security Instrument and in any Rider executed by Xxxxxxxx and
recorded with it.
Signed, sealed and delivered in the presence of:
Borrower:
Witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Xxxxxx
------------------ ------------------------------
Xxxxx X. Xxxxxx, an individual
__________________ [SPACE BELOW THIS LINE FOR ACKNOWLEDGMENT] __________________
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________ )
On 7/21/04, before me, Xxxx Xxxxxxxx, a Notary Public in and for said
County and State, personally appeared Xxxxx X. Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument, and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument. WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxxx
------------------------------
Signature of Notary Public
[SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
All that real property in the City of Xxxxxx, Xxxxxx County, Florida
described as follows:
Lot 6 Twin Rivers (less easterly 2" right of way per
D/R1096/1064) PB 2, Page 62.
Assessor's Parcel No.: 36-37-41-007-000-00060-2.
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