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EXHIBIT 10.6
STATE OF ALABAMA)
COUNTY OF XXXXXXX)
FIRST REAL ESTATE MORTGAGE AND FIXTURE FILING
This MORTGAGE is made and entered into on the date set forth below, by
and between Southwind Development Company, L.L.C, an Alabama limited liability
company (hereinafter referred to as "Mortgagor") and First American Bank of
Pensacola, N.A., Xxxx Xxxxxx Xxx 00000, Xxxxxxxxx, Xxxxxxx 00000-0000
(hereinafter referred to as "Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagor is justly indebted to Mortgagee and hereby executes
this Mortgage to secure the payment of ONE MILLION EIGHT HUNDRED TWENTY FIVE
THOUSAND AND NO/100ths DOLLARS ($1,800,000.00) as evidenced by a promissory
note of even date herewith payable in accordance with the terms of said note,
and any renewals, extensions, or modifications thereof.
In consideration of Mortgagee's extension of the above-referenced
credit and as an inducement to Mortgagee to extend such credit and, in
consideration of Mortgagee agreeing to extend said credit on the terms and
conditions as set out in the aforementioned note, the Mortgagor has agreed that
this mortgage should be given to secure the timely payment of the
aforementioned note and Mortgagor's performance of its obligations as set forth
herein, in the promissory note and the Loan Documents, all made a part hereof
by reference as if fully set forth herein.
NOW, THEREFORE, Mortgagor and all others executing this Mortgage, in
consideration of the premises, and to secure the payment of said indebtedness
hereinabove specifically referred to, and to secure any and all other
indebtedness of Mortgagor to Mortgagee, whether now existing or hereafter
arising, due or to become due, absolute or contingent, liquidated or
unliquidated, direct or indirect; and any and all extensions or renewals of
same, whether evidenced by note, open account, endorsement, guaranty, pledge,
or otherwise, and to further secure the compliance of all the covenants and
stipulations herein contained, does hereby grant, bargain, sell, convey,
transfer, and mortgage unto Mortgagee, its successors and assigns, the
following described real estate, together with buildings, fixtures, and
improvements thereon (hereinafter sometimes referred to as the "real estate" or
the "mortgaged real estate") lying and being situated in the County of Xxxxxxx,
State of Alabama, to-wit:
PARCEL A: Xxx 0 xx x Xxxxxxxxxxxxx xx Xxx X xx XXX
Subdivision as shown on map or plat of record in Slide
#1797A, in the Office of the Probate Judge of Xxxxxxx County,
Alabama.
PARCEL B: Lot B, JLB Subdivision, a resubdivision of Xxxx
0-0, Xxxxx 0, of a resurvey of Blocks 8-12 and 28-30, Unit 1
of Gulf Shores, as shown in Map Book 12, page 000, Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
together with all awards received from eminent domain, and payments upon any
insurance policies covering the real estate, and all rights, privileges,
tenements, and appurtenances thereunto belonging or in anywise appertaining to
said real estate, including easements and right-of-ways appurtenant thereto,
and all fixtures, including but not limited to all gas, steam, electric and
other heating, cooling and lighting
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fixtures, elevators, refrigerators, plumbing, wiring, stoves, doors, and other
fixtures appertaining to the real estate and improvements located thereon,
whether now or hereafter existing, all of which shall be deemed realty and
conveyed by this mortgage.
TO HAVE AND TO HOLD the real estate, and every part thereof, unto
Mortgagee, its successors and assigns forever. And Mortgagor covenants with
Mortgagee that it is lawfully seized of the real estate in fee simple and has a
good title to sell and convey the same as aforesaid; that the real estate is
free of all encumbrances except as maybe herein set out, and Mortgagor will
warrant and forever defend the title to the real estate unto Mortgagee, its
successors and assigns, against the lawful claims of all persons whomsoever.
THIS MORTGAGE IS MADE however, subject to the following covenants,
conditions, agreements, and provisions:
1. That Mortgagor shall pay the indebtedness secured hereby with
interest thereon when and as it or they shall become due, together with any
other indebtedness which Mortgagor may owe to Mortgagee, as further defined in
paragraph 20 below, being further agreed that any statement, any note or
obligation secured by this mortgage shall be conclusive evidence of such fact.
2. (a) That Mortgagor shall provide, maintain and deliver to
Mortgagee policies of fire, casualty, and hazard insurance with extended
coverage, and such other insurance as Mortgagee may from time to time require,
and shall assign, with endorsements, and deliver to Mortgagee, with Mortgagee's
clauses, all insurance policies of any kind or in any amount now or hereafter
issued with respect to the real estate. Insurance companies, terms of coverage,
types and amount of coverage and all other documentation relating to such
policies shall be satisfactory to Mortgagee. Such insurance policies shall
provide that Mortgagee shall receive twenty (20) days notice before the
expiration or termination of any policy. Prior to the expiration or termination
of any policy, Mortgagor shall provide evidence of renewal or issuance of a new
policy with evidence of premium payment. All policies, certificates of
insurance, or evidence of renewal shall be delivered to Mortgagee within 15
days of issuance. If any insurance, or any part thereof, shall expire, or be
withdrawn, or become void or unsafe by Mortgagor's breach of any condition
thereof, or become void or unsafe by reason of the failure or impairment of the
capital of any company with whom the insurance may then be carried, or for any
reason whatever the insurance shall be unsatisfactory to Mortgagee, Mortgagor
shall procure and deliver to Mortgagee new insurance on the real estate
satisfactory to Mortgagee. Mortgagor shall give immediate notice in writing to
Mortgagee of any loss, injury, or damage affecting the mortgaged real estate
caused by any casualty or occurrence. Full power is hereby conferred upon the
Mortgagee to settle and compromise claims under all policies and to demand and
receive all monies becoming payable thereunder and to assign absolutely all
policies to any holder of the note or to the grantee of the real estate in the
event of foreclosure of this mortgage and security agreement or other transfer
of title to the real estate and extinguishment of the indebtedness secured
hereby. In the event of a loss covered by any of the policies of insurance
herein referred to, each individual insurance company concerned is hereby
authorized and directed to make payment for such loss directly to the Mortgagee
instead of to the Mortgagor and the Mortgagee jointly, and the insurance
proceeds, after deducting all costs of collection, including a reasonable
attorney fee, may be applied by the Mortgagee at its option, either as a
payment on the account of indebtedness secured hereby, whether or not then due
or payable, or toward the restoration, reconstruction, repair, or alteration of
the real estate, either to the portion thereof by which said loss was sustained
or any other portion thereof.
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(b) That Mortgagor shall pay and discharge as the same become due,
all taxes and assessments that may accrue or be assessed upon the real estate
or any part thereof, or that become a lien against the property, regardless of
whether such tax or assessment would have priority in payment to the
indebtedness secured hereby, or upon Mortgagee's interest therein, or upon
this mortgage or the indebtedness secured hereby. The Mortgagor shall pay such
taxes and assessments without regard to any law heretofore or hereinafter
enacted imposing payment of the whole or any parts thereof upon Mortgagee.
However, at Mortgagee's sole discretion upon the passage of any law imposing
payment upon the Mortgagee or upon the decision by an appellate court of
competent jurisdiction that the undertaking by Mortgagor or Mortgagee to pay
such taxes is legally inoperative, then the indebtedness secured hereby without
deduction shall, at the option of Mortgagee, become immediately due and
payable, notwithstanding anything contained in this mortgage or any law
heretofore enacted; and Mortgagor shall not suffer or permit any such taxes on
the said real estate to become or remain delinquent or permit any part of the
real estate or any interest therein to be sold for any taxes or assessments;
and further shall furnish annually to Mortgagee, prior to the date when they
become delinquent, certificates or receipts from the proper offices showing
full payment of all such taxes and assessments.
3. That in the event of the enactment of any law by the State of
Alabama, after the date of this mortgage, deducting from the value of the real
estate for the purpose of taxation any lien thereon, or imposing any liability
upon Mortgagee, in respect of the indebtedness secured hereby, or changing in
any way the laws now in force for the taxation of mortgages, or debts secured
by mortgages, or the manner of collecting of any such taxes, so as to affect
this mortgage, Mortgagor shall pay any such obligation imposed on Mortgagee
thereby, within 15 days of notice or demand given by the Mortgagee.
4. That no constructed building or other improvement on the real
estate shall be structurally removed or demolished, without the Mortgagee's
prior written consent, nor shall any fixture or chattel covered by this
mortgage and adapted to the proper use and enjoyment of the real estate be
removed at any time without like consent unless actually replaced by an article
which is equally suitable and owned by the Mortgagor.
5. Mortgagor shall not allow any statement of lien to be filed under
the statutes of Alabama relating to the liens of mechanics and materialmen
without regard to form and contents of such statement, and without regard to
the existence or non-existence of the debt, or any part thereof, or of the
lien on which such statement is based.
6. That Mortgagor shall comply with all statutes, ordinances,
regulations, and laws promulgated by any governmental entity asserting
jurisdiction over the real estate and any and all legal requirements shall be
fully complied with by the Mortgagor.
7. That the real estate and improvements thereon shall not be
abandoned and shall be kept in good condition and no waste permitted or
committed thereon. Notwithstanding the foregoing, the Mortgagor shall be
permitted to remove all existing improvements on the real estate, so long as it
is done so in compliance with all applicable ordinances and codes.
8. Should it be discovered after the execution and delivery of this
instrument that there is a defect in the title to or a lien or encumbrance of
any nature on the real estate superior to the lien hereof; or in case of any
error or defect in the above-described note, this instrument or any other loan
documentation executed in connection therewith, or in the execution of the
acknowledgement thereof; or
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if a homestead claim be set up to the real estate or any other part thereof
adverse to this mortgage, the Mortgagor shall within thirty (30) days after
demand by the Mortgagee, or other holder of said indebtedness, correct such
defects in the title, remove any such lien or encumbrance or homestead claim,
or correct any error in said note or this instrument or its execution.
Mortgagor hereby authorizes the Mortgagee, at the option of Mortgagee and the
expense of Mortgagor, to file any Uniform Commercial Code documents that
Mortgagee may require, including any original filing pertaining to the
premises any and all continuation, amendments, assignments, releases, and
terminations thereof without further signature or authorization of Mortgagor.
Mortgagor agrees to subsequently execute or re-execute any documentation
deemed necessary by Mortgagee to perfect, continue perfection, or re-perfect
any security interest.
9. That except for the second mortgage of even date herewith to
Xxxxxxx and Xxxxxxxxx XxXxxxx in the principal amount of $541,500.00, no right,
title, or interest in or to the mortgaged real estate, or any part thereof,
shall be sold, transferred, assigned, conveyed, mortgaged, or encumbered by a
lien at any time prior to the payment in full of the indebtedness secured
hereby without first obtaining the prior written consent and approval of
Mortgagee which consent and approval shall be within Mortgagee's sole
discretion.
10. That Mortgagor, at Mortgagee's request, shall furnish to
Mortgagee such financial records as the holder of this mortgage may require,
including, but not limited to, an annual statement of the operation of the real
estate, if applicable, which shall include annual statements itemizing the
income and expenses, an itemized rent roll, together with complete financial
statement of Mortgagor's assets and liabilities and its profit and loss
statement. Said information shall be given to Mortgagee at no expense to
Mortgagee.
11. That if the indebtedness evidenced by the note specifically
referred to hereinabove is being advanced by Mortgagee to Mortgagor under the
terms and provisions and in accordance with a loan and security agreement
and/or construction loan advance agreement ("Agreement"), the terms and
provisions of said Agreement are hereby incorporated by reference as a part of
this mortgage as if fully set forth herein and any default in the performance
of the provisions thereof, or any contract or agreement between Mortgagor and
Mortgagee, shall constitute a default hereunder entitling Mortgagee to exercise
the remedies provided herein, including the right to foreclose this mortgage in
accordance with the provisions hereof.
12. That in the event Mortgagor, prior to satisfaction of the
indebtedness secured hereby, files a bankruptcy petition under Title II of the
United States Code, and is permitted to cure any default in the indebtedness
secured hereby, the amount necessary to cure shall include all principal due
and outstanding, all late fees, accrued interest and other charges (including
any attorneys fees) properly chargeable under the terms hereof, or the other
Loan Documents, together with interest at the contract rate on all such
amounts.
13. All expenses incurred by Mortgagee, including attorney's fees,
in compromising, adjusting, or defending against liens, encumbrances, or other
claims sought to be fixed upon the real estate hereby conveyed, whether such
claims be valid or not, shall become a part of the indebtedness secured hereby.
That if Mortgagee shall be made a party to any suit involving title to the real
estate and employs an attorney to represent it therein, or if Mortgagee employs
an attorney to assist in settling or removing any cloud on the title to the
real estate hereby conveyed that purports to be superior to this mortgage in
any respect, Mortgagor will pay to Mortgagee such attorney's fee when the same
becomes due. Mortgagor further agrees to pay a reasonable attorney's fee as may
be permitted by law to Mortgagee should the Mortgagee employ an attorney to
collect any indebtedness secured by this mortgage, to enforce the
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mortgage lien against the real estate, or to protect Mortgagee's interest in
the real estate.
14. Notwithstanding that the assignment of awards hereinabove
referred to shall be deemed to be self executing, Mortgagor, after the
allowance of a condemnation award, and the ascertainment of the amount due
thereon, and the issuing of a warrant by the condemnor for the payment thereof,
shall execute, at Mortgagee's request, and forthwith deliver to Mortgagee, a
valid assignment in recordable form, assigning all of such condemnation claims,
awards, or damages to Mortgagee, but not in excess of an amount sufficient to
pay, satisfy, and discharge the principal sum of this mortgage and any advances
made by Mortgagee as herein provided then remaining unpaid, with interest
thereon at the rate specified herein, or in the note which this mortgage
secures, to the date of payment, whether such remaining principal sum is then
due or not by the terms of said note or of this mortgage.
15. In the event of default, Mortgagee may enter and take possession
of the real estate and may exclude Mortgagor, its agents and servants, wholly
therefrom, having and holding the same, may use, operate, manage, and control
the real estate or any part thereof, and upon every such entry the Mortgagee
from time to time may make all necessary or proper repairs, renewals,
replacements and useful or required alterations, additions, betterments, and
improvements to and upon the real estate which may seem judicious to Mortgagee
and pay all proper costs and expenses of so taking, holding, and managing the
same, including reasonable compensation to its agents, servants, attorneys and
counsel; and in such case Mortgagee shall have the right to manage the real
estate and to carry on the business, if applicable, and exercise all rights and
powers of Mortgagor, either in the name of Mortgagee or otherwise, as Mortgagee
shall deem advisable; and Mortgagee shall be entitled to collect and receive
all earnings, revenues, rents, issues, profits, and other income thereof and
therefrom. After deducting the expenses of operating the real estate and of
conducting the business thereof, and all repairs, maintenance, renewals,
replacements, alterations, additions, betterments improvements, and all
payments that it may be required or may elect to make for taxes, assessments,
or other proper charges on the real estate, or any part thereof, as well as
just and reasonable compensation for all agents, clerks, and other employees
and for all attorneys and counsel engaged and employed, the moneys arising as
aforesaid shall be applied to the indebtedness secured hereby. As additional
security hereunder, Mortgagor hereby assigns to Mortgagee the rents and income
of the real estate. In the event the real estate is leased or rented by
Mortgagor, in whole or in part, upon an event of default, the Mortgagee may
itself, by agent, or by judicially appointed receiver enter upon, take
possession of, and manage the real estate and with or without taking
possession, collect the rents and/or income of the real estate, including those
past due. All rents collected by mortgagee or the receiver shall be applied
first to payment of the costs of management of the Property and collection of
rents, including, but not limited to, receiver's fees, premiums on receiver's
bonds and reasonable attorney fees, and then to the sums secured by this
mortgage. Mortgagee and the receiver shall be liable to account only for those
rents actually received.
16. That if Mortgagor fails to comply with any requirements herein,
defaults upon or breaches any obligation hereof, or fails to pay any sum or
satisfy any obligation imposed herein, the Mortgagee may, at its discretion,
comply with said requirement; cure, pay or satisfy any such obligation, and any
money which Mortgagee shall have so paid shall constitute a debt to Mortgagee
additional to the indebtedness secured hereby; which shall be secured by this
mortgage; and shall bear interest at the rate set out in the note hereinabove
referred to from the date paid or incurred; shall be immediately due and
payable, and constitute grounds for declaring the maturity of the indebtedness
secured hereby.
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17. That no delay or failure of Mortgagee to exercise any option
herein given or reserved or to perform any act which it is empowered to do
shall constitute a waiver of such option or estop Mortgagee from afterwards
exercising same or any other option at any time, and the payment, or
contracting to pay, by Mortgagee of anything Mortgagor has herein agreed to pay
shall not constitute a waiver of default of Mortgagor in failing to make said
payments and shall not estop Mortgagee from foreclosing this mortgage on
account of such failure of Mortgagor. It is further agreed that no term or
condition contained in this mortgage can be waived, altered, or amended, except
as evidenced in writing signed by the Mortgagor and the Holder hereof. The
waiver of any default or breach of covenant or any other requirement contained
herein shall not constitute a waiver of any other or subsequent default or
breach.
18. That any promise made by Mortgagor herein to pay money may be
enforced by a suit at law, and the security of this mortgage shall not be
waived thereby. As to the debts secured hereby, the Mortgagor waives all right
of exemption under the laws and Constitution of the State of Alabama and agrees
to pay, as permitted by law, a reasonable attorney's fee for collection
thereof, which shall be limited by the terms of the instruments of indebtedness
secured hereby.
19. That it is further agreed that if Mortgagor shall fail to pay, or
cause to be paid, any indebtedness secured hereby, whether in whole or any
portion of the principal sum or any installment due thereon, as they or any of
them mature, either by lapse of time or otherwise, in accordance with the
agreements and covenants herein contained, or should default be made in the
payment of any mechanics lien, materialmen's lien, insurance premiums, taxes or
assessments now, or which may hereafter be, levied against, or may become a
lien on the real estate, or should default be made in any of the covenants,
obligations, conditions and agreements of Mortgagor herein contained or
contained in any instrument secured by this Mortgage, or any other Loan
Document, then and in that event the whole of said principal sum, with interest
thereon, and all other indebtedness hereby secured, shall, at the option of the
then holder of said indebtedness, and without notice or demand, be and become
immediately due and payable and the holder of the indebtedness hereby secured
shall have the right to enter upon and take possession of the real estate and
after, or without, taking such possession of same, sell the mortgaged real
estate at public outcry, in front of the courthouse door of the county wherein
the real estate is located, to the highest bidder for cash, either in person or
by auctioneer, after first giving notice of the time, place, and terms of such
sale by publication once a week for three (3) consecutive weeks in a newspaper
published in said county and, upon the payment of the purchase money, the
Mortgagee or any person conducting said sale for it is authorized and empowered
to execute to the purchaser at said sale a deed to the real estate. The
Mortgagee, or the then holder of the indebtedness hereby secured, may bid at
such sale and become the purchaser of the real estate if the highest bidder
therefor, which bid shall constitute a credit against the indebtedness and
costs secured hereby. The proceeds of any such sale shall be applied first to
the expenses incurred in making the sale and in all prior efforts to effect
collection of the indebtedness secured hereby or to enforce or protect the
interest of the Mortgagee, including a reasonable attorney's fee, as permitted
by law for such services as may be, or have been, necessary in any one or more
of the foreclosure of this mortgage, the collection of said indebtedness, and
the pursuit of any efforts theretofore directed to that end, including, but not
limited to, the defense of any proceedings instituted by the Mortgagor or
anyone liable for said indebtedness or interested in the mortgaged real estate
to prevent or delay, by any means, including bankruptcy, the exercise of said
power of sale and the foreclosure of this mortgage; then to the payment of
whatever advances or sums Mortgagee may have paid out or become liable to pay,
in carrying out the provisions of this mortgage, together with interest
thereon; then to the payment and satisfaction of accrued interest on the
principal indebtedness to the day of sale; then to the payment of the principal
indebtedness secured hereby and any other indebtedness secured by this
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mortgage; and the balance, if any, shall be paid over to that entity or
entities which may be lawfully entitled to receive the same, including the
Mortgagor, or the Mortgagor's successors or assigns. In the event more than one
entity maybe entitled to receive such excess proceeds, the Mortgagee, at its
discretion, may interplead such excess proceeds. In any event, the purchaser
under any foreclosure sale, as provided herein, shall be under no obligation to
see to the proper application of the purchase money.
20. That it is the intent of the Mortgagor and Mortgagee to secure
any and all indebtedness of said Mortgagor to Mortgagee, now existing or
hereafter arising, due or to become due, absolute or contingent, liquidated or
unliquidated, direct or indirect, and this mortgage is intended and does
secure, not only the indebtedness herein specifically referred to, but also any
other debts, obligations, and liabilities of said Mortgagor to said Mortgagee,
whether now existing or hereafter arising, and any and all extensions or
renewals of same, or any part thereof, at any time before actual satisfaction
and cancellation of this mortgage in the Probate office where recorded, and
whether the same be evidenced by a promissory note, open account, endorsement,
guaranty agreement, pledge agreement, or otherwise; that it is expressly agreed
that any indebtedness at any time secured hereby, may be extended, rearranged,
or renewed, and that any part of the security herein described may be waived or
released without in any way altering, varying, or diminishing the force,
effect, or lien of this mortgage; and this mortgage shall continue as a first
lien on all of the real estate and other property and rights covered hereby and
not be expressly released until all sums with interest and charges hereby
secured are fully paid; and no other security now existing or hereafter taken
to secure the payment of said indebtedness or any part thereof shall in any
manner be impaired or affected by the execution of this mortgage; and no
security subsequently taken by Mortgagee or other holder of said indebtedness
shall in any manner impair or affect the security given by this mortgage; and
all security for the payment of said indebtedness or any part thereof shall be
taken, considered and held as cumulative. If the Mortgagor consists of one or
more persons or entities, the indebtedness of Mortgagor to Mortgagee secured
hereunder shall include the indebtedness of each Mortgagor to Mortgagee whether
or not incurred with the knowledge of the other Mortgagors and whether now
existing or hereinafter incurred and whether absolute or contingent.
21. Provided always that if Mortgagor pays the indebtedness secured
by this mortgage (as defined in paragraph 20 above), and reimburses Mortgagee,
its successors and assigns, for any amount it may have expended pursuant to the
authorization of this mortgage, and shall do and perform all other acts and
things herein agreed to be done, this conveyance shall be null and void;
otherwise it shall remain in full force and effect.
22. That Mortgagor agrees for itself and any and all persons or
concerns claiming by, through, or under Mortgagor, that if it or any one or
more of them shall hold possession of the above described real estate or any
part thereof subsequent to foreclosure hereunder, it or the parties so holding
possession, shall become and be considered as tenants at will of the purchaser
or purchasers at such foreclosure sale; and any such tenant failing or refusing
to surrender possession upon demand shall be guilty of forcible detainer and
shall be liable to such purchaser or purchasers for reasonable rental of the
real estate, and shall be subject to eviction or removal, forcible or
otherwise, and all damages which may be sustained by any such tenant as a
result hereof being hereby expressly waived.
23. In the event that this mortgage secures a line of credit,
construction loan, or other form of indebtedness under the terms of which the
full principal amount of the indebtedness is not advanced at closing, the
Mortgagor agrees that the Mortgagee, at its option, may require the Mortgagor
to pay all recording fees and taxes on the full amount of the principal
indebtedness stated herein, whether or not the full amount of the principal
indebtedness is ever advanced or not.
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24. All notices which are required or permitted under the terms of
this mortgage may be given to the Mortgagor by first class mail, postage
prepaid to the address set forth below, unless Mortgagor notifies Mortgagee, in
writing, of another address for the purpose of notice.
25. That singular or plural words used herein to designate the
Mortgagor shall be construed to refer to the maker or makers of this mortgage,
or any one of them, and all covenants and agreements herein contained shall
bind the successors and assigns of the Mortgagor, and every option, right, and
privilege herein reserved or secured to Mortgagee shall inure to the benefit of
its successors and assigns.
26. That the unenforceability or invalidity of any provision or
provisions of this mortgage shall not render any other provision or provisions
herein contained unenforceable or invalid. All rights or remedies of Mortgagee
hereunder are cumulative and not alternative, and are in addition to those
provided by law.
27. This Mortgage and the indebtedness secured hereby, or a part
thereof, may be assigned by the Mortgagee.
28. By its execution hereof, Mortgagor acknowledges that it has
received a complete copy of this mortgage.
29. Governing Law. This Mortgage secures a Note and Other
indebtedness, which by the terms thereof are governed by the laws of the State
of Florida, and are to be performed within the State of Florida. Without giving
effect to choice of law rules, the Parties hereto agree that the Note and Other
Indebtedness shall be governed by Florida law. The interest, right and remedies
granted by this Mortgage and the manner in which they are to be enforced shall
be governed by the laws of the State of Alabama.
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30. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, COUNTERCLAIM, ACTION OR
CAUSE OF ACTION (1) ARISING UNDER OR RELATED TO THIS LOAN, ANY OTHER LOAN
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR ARISING
UNDER OR RELATED TO ANY OTHER INDEBTEDNESS, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE RELATIONSHIP BETWEEN OR COURSE OF DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN, THIS MORTGAGE, ANY
OTHER LOAN DOCUMENT, AGREEMENT OR INSTRUMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO, OR RELATING TO ANY
OTHER INDEBTEDNESS; IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY. THIS PROVISION SHALL SURVIVE THE PAYMENT IN FULL OF THE LOANS OR
ANY OTHER INDEBTEDNESS.
IN WITNESS WHEREOF, the undersigned set their hands and seals to
this instrument on the 16th day of April, 1998.
Southwind Development Company, LLC
/s/ Xxxxxx X. XxxXxxxx
----------------------------
By: Xxxxxx X. XxxXxxxx
Its: Authorized Member
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STATE OF ALABAMA
COUNTY OF XXXXXXX
I, the undersigned authority, in and for said County in said State,
hereby certify that Xxxxxx X. XxxXxxxx, whose name as authorized member of
Southwind Development Company, LLC, an Alabama limited company, is signed to
the foregoing conveyance and who is known to me, acknowledged before me on this
day that, being informed of the contents of the conveyance, he, as such member
and with full authority, executed the same voluntarily for and as the act of
said company.
Given under my hand this the 16th day of April, 1998.
/s/ Xxxxx X. Xxxx, Xx.
-----------------------
(S E A L) NOTARY PUBLIC
MY COMMISSION EXPIRES:
2/20/2000
THIS INSTRUMENT PREPARED BY:
Xxxxxxx X. Xxxxxx, Esquire
Miller, Hamilton, Xxxxxx & Xxxx, L.L.C.
Xxxx Xxxxxx Xxx 00
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
MORTGAGOR'S ADDRESS
Southwind Development Company, L.L.C.
Baybridge Professional Park
Building 000
Xxxx Xxxxxx, Xxxxxxx 00000
MORTGAGEE'S ADDRESS
First American Bank of Pensacola, X.X.
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, Xxxxxxx 00000-0000
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