PREFERRED MORTGAGE
Exhibit 10.1
THIS PREFERRED MORTGAGE (the
“Mortgage”) is made effective on this _____ day of May, 2008, by Island Breeze
International, a Cayman Islands corporation (hereinafter referred to as
“Mortgagor”) and Xxxxxx, X.X., a Panamanian corporation (the
“Mortgagee”).
WHEREAS, the Mortgagor is the sole
owner of the whole vessel CASINO ROYALE (Nassau, Bahamas Official No. 7350442)
(the “Vessel”), that is duly registered in the name of the Mortgagor under the
laws and flag of Panama, and,
WHEREAS, the Mortgagee and Mortgagor
are parties to a certain Purchase and Sale Agreement (the “Purchase Agreement”)
of the vessel CASINO ROYALE, which included as part of the purchase price a
Promissory Note made by Mortgagor in the original principal amount of U.S.
Dollars Four Million (US$ 4,000,000.00) (the “Note”) and that a certain security
agreement was made by Mortgagor for the benefit of Mortgagee (“Security
Agreement”), each and even date herewith, as amended, restated or otherwise
supplemented from time to time, the Purchase Agreement, Note, and Security
Agreement are herewith collectively referred to as the “Transaction Documents”
which by this reference are incorporated herein and made a part hereof;
and,
WHEREAS, in order to secure Mortgagor’s
obligations to the Note and Transaction Documents, Mortgagor has executed and
delivered this Mortgage to the Mortgagee.
NOW, THEREFORE, THIS MORTGAGE
WITNESSETH:
THAT, IN CONSIDERATION, of the premises
and other good and valuable consideration, the receipt and sufficiency whereof
is hereby acknowledged, and in order to secure the payment of the obligations
evidenced by the Transaction Documents and the Guarantee according to the terms
thereof and the payment of any advancements that shall be made, and the
performance and compliance of all the covenants, terms and conditions herein and
therein, the Mortgagor does by these presents grant, convey, mortgage, pledge,
assign, transfer, set over, and confirm to the Mortgagee, its respective
successors and assigns, the whole of the vessel, together with all its
machinery, masts, sails, anchors, cables, rigging, tackle, apparel, fittings,
tools, equipment, gaming machines, and all other appurtenances thereunto now, or
at any time hereafter, appertaining or belonging, whether owned or not owned,
whether onboard or not, and all additions, improvements, and replacements
hereafter made in or to the vessel or any part or appurtenance
thereof;
TO HAVE
AND TO HOLD the same unto the Mortgagee, its respective successors and assigns,
upon the terms and conditions herein set forth to secure the performance and
observance of and compliance with the covenants, terms and conditions in the
Guarantees and this Mortgage. PROVIDED, HOWEVER, and these presents
are executed and delivered upon the condition that if the Mortgagor, its
successors and assigns, shall pay or cause to be paid to the party to the
Guarantee, the obligations aforesaid and interests thereon as and when the same
shall become due and payable, in accordance with the terms of the Note and
Guarantee, and all other sums as are or may hereafter become secured by this
Mortgage in accordance with the terms hereof, and the Mortgagor shall duly
perform, observe and comply fully with the covenants, terms and conditions of
the Note and Guarantee and terms of this Mortgage, express or implied, to be
performed, observed and complied with, then these presents and the rights
hereunder shall cease, terminate and be void; otherwise, to be and to remain in
full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND
AGREED that the property above described is to be held subject to the following
covenants, conditions, provisions, terms and uses hereinafter set
forth.
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ARTICLE
I
CORPORATE STATUS
ENFORCEABILITY
Island Breeze International is a
company duly organized under the laws of the Cayman Islands and is duly
authorized to mortgage the property conveyed hereunder. All corporate
action on their part and all respective action on the part of their respective
members, partners and managers for the making and delivery of the Guarantee and
the execution of this Mortgage has been duly and effectively
taken. The obligations hereby secured are and will be the valid and
enforceable obligation of the Mortgagor in accordance with its
terms.
ARTICLE
II
VESSEL
TITLE
The Mortgagor lawfully owns and is
lawfully possessed of the mortgaged property, the Vessel, and subject to the
terms of the Purchase Agreement, the Mortgagor covenants and promises that it
will warrant and defend the title and possession thereto and every part thereof
for the benefit of the Mortgagee against the claims and demands of all persons
whomsoever and further warrants, subject to the terms of the Purchase Agreement,
that the Vessel is free from all encumbrances, claims, unpaid taxes, and that
there are no liens of any type, or other mortgages on the Vessel, other than the
lien created by this Mortgage.
ARTICLE
III
COMPLIANCE WITH LAWS OF THE
FLAG STATE
(a) The
Mortgagor will cause this Mortgage to be duly recorded in accordance with the
laws of the flag state of the Vessel, and in the event that the flag state
changes, the Mortgagor agrees to record this Mortgage with the new flag
state.
(b) Mortgagor
will take whatever steps are necessary to comply with the laws and provisions of
the flag state to insure that the Vessel is properly documented and that the
Mortgage is enforceable under the laws of the flag state as a First Preferred
Ships Mortgage.
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ARTICLE
IV
RETENTION OF
MORTGAGE
(a) Mortgagor
shall use diligence to keep a certified copy of this Mortgage as furnished by
the Mortgagee on the Vessel with the Vessel’s papers onboard the Vessel, and to
exhibit this Mortgage on demand to any person or entity having business with the
Vessel that may give rise to a maritime lien upon the Vessel or to the sale,
conveyance, mortgage or charter thereof, and on demand of any authorized
representative of Mortgagee. Mortgagor shall provide evidence of
compliance with this Article IV upon request of the Mortgagee, and Mortgagee, in
its sole discretion, shall be entitled to perform the requirements of Article IV
upon reasonable notice to Mortgagor.
(b) Mortgagor
will cause a notice, reading as follows (or containing such additional
information relating to any permitted mortgage that is placed on vessels as may
be approved by the Mortgagee) printed in plain type of such size that the
paragraph of reading matter shall cover a space not less than six (6) inches
wide by nine (9) inches high, and framed to be placed and prominently exhibited
in the chart room and in the Master’s cabin of the Vessel, as well as in the
ship’s office and the Master’s office:
“NOTICE
OF SHIPS MORTGAGE
This
Vessel is owned by Island Breeze International, a Cayman Islands company, and is
subject to that Preferred Ships Mortgage (the “Mortgage”) in favor of Xxxxxx,
X.X., a Panamanian company, and its assignees, a certified copy of which
Mortgage is kept with this Vessel’s papers. Under the terms of said
Mortgage, neither Island Breeze International, the master or agent of this
vessel nor any other person has any right or power or authority to create,
incur, or permit to be placed or imposed upon this Vessel, its freights, profits
or hire any other lien whatsoever, other than liens for wages of a stevedore
when employed directly by the owner, operator, master or agent of the Vessel, or
such other person listed in 46 U.S.C. § 31341, for wages of the crew in
respect of this Vessel, general average or for salvage (including contract
salvage), liens fully covered by insurance and any deductible applicable
thereto, or, to the extent they are liens subordinate to the liens of the said
mortgage, other liens incident to current operations or for
repairs.”
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(c) The
Mortgagor will not transfer or change the flag or port of registration of the
Vessel without having first obtained prior written consent of the Mortgagee,
which shall not be unreasonably withheld, conditioned or delayed, and any such
written consent to any one transfer or change of flag or port of registration
shall not be construed as a waiver of this provision with respect to any
subsequent proposed transfer or change of flag or port of
registration.
ARTICLE
V
INSURANCE
(a) Island
Breeze International shall at its own expense cause the Vessel to be insured in
a mutually agreeable amount as evidenced by current and future certificates of
insurance, but not less than one hundred percent (100%) of the amount
remaining unpaid under the Transaction Documents, the Note and/or this Mortgage,
together with accrued interest, if any. Such insurance shall cover
marine perils, on hull and machinery, and shall be maintained in the standard
form available in the American or British insurance markets. Island
Breeze International shall cause to be maintained protection and indemnity
(P&I) insurance or liability insurance covering the
Vessel. Immediately prior to the maiden voyage of the Vessel, Island
Breeze will procure P&I insurance or liability insurance, in an amount of a
minimum of Twenty Million US Dollars ($20,000,000.00). Island Breeze
International also agrees to carry P&I pollution coverage as well as any
additional coverage necessary to meet federal and state proof of financial
responsibility requirements that may exist.
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(b) The
Mortgagor shall not knowingly do any act or voluntarily suffer or permit any act
to be done whereby any insurance is or may be suspended, impaired or defeated
and shall not suffer or permit the Vessel to engage in any voyage, or
in operation not permitted under the policy or policies of insurance in effect,
unless and until the Mortgagor shall first cover the Vessel to the amount herein
provided for by insurance, satisfactory to the Mortgagee for such voyage, or
operation of the Vessel.
(c) In
the event of any actual, constructive or compromised total loss of the Vessel,
such loss shall not be adjusted or compromised without the prior written consent
of the Mortgagee, and all insurance or other payments for such shall be paid to
the Mortgagor and applied by the Mortgagor in accordance with the terms of the
Transaction Documents.
(d) If
requested by the Mortgagee at any time and from time to time, Mortgagor will
deliver to the Mortgagee copies of all cover notes, binders, policies and
certificates of membership in protection and indemnity associations, and all
endorsements and riders amendatory thereof, in respect of insurance maintained
in connection with the Vessel.
(e) All
insurance required by this Article V, except for insurance covering the
Mortgagor’s liability to the crew of the Vessel, must name Mortgagee as an
additional insured, but without liability for premiums, club calls, assessments,
warranties or representations, and, upon and after the occurrence of any
default, all amounts of whatsoever nature payable under any insurance must be
payable to the Mortgagee for distribution first in respect to the obligations
owing under the Transaction Documents and the Guarantee. Mortgagor
shall deliver to Mortgagee certificates of insurance together with all necessary
endorsements evidencing that Mortgagee has been named as an additional insured
within a reasonable time after taking delivery of the Vessel.
(f) Mortgagor
agrees to comply with all laws and lawful regulations, including any gaming
laws, the U.S. Oil Pollution Act of 1990, the International Convention for
Safety of Life at Sea, 1978, and all regulations, licenses or permits applicable
to any activities carried out in the name of or representative of Mortgagor with
respect to the Vessel.
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ARTICLE
VI
LIENS
(a) In
due course, and in any event within thirty (30) days after the same becomes due
and payable, the Mortgagor will pay or cause to be discharged or make adequate
provision for the payment or discharge of all claims or demands which, if not
paid or discharged, might result in the creation of a security interest, lien,
encumbrance or charge against the Vessel or any income therefrom, and will cause
the Vessel to be released or discharged from any such security interest, lien,
encumbrance or charge therefor.
(b) If
a libel is filed upon the Vessel or if the Vessel shall be arrested, seized,
sequestered or taken into custody by virtue of any proceeding in any court or
tribunal or by any government or other authority, Mortgagor will promptly notify
the Mortgagee thereof, and within fifteen (15) days after such libel, arrest,
seizure, sequestration, or taking into custody will cause the Vessel to be
released and will promptly notify the Mortgagee of such release.
(c) Neither
the Mortgagor, any charterer or any other person, has or shall have any right,
power or authority to create, incur or permit to be placed or imposed or
continued upon the Vessel any lien whatsoever (including any encumbrance or
security interest) other than the lien created by this Mortgage and liens for
crew’s wages or salvage or otherwise arising in the normal course of operations
or for repair and being regularly settled.
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ARTICLE
VII
VESSEL
MAINTENANCE: ACCESS
(a) At
all times Mortgagor shall exercise due diligence to cause the Vessel to be
maintained and preserved in as good condition, working order, and repair, as at
the date of the execution of this Mortgage, ordinary wear and tear and
depreciation excepted. Mortgagor agrees, following any request by
Mortgagee, to give Mortgagee at least ten (10) days notice of actual date and
place of any survey of the Vessel in order that the Mortgagee may have a
representative present if desired.
(b) The
Mortgagor will at all reasonable times afford the Mortgagee or its authorized
representatives full and complete access to the vessel for the purpose of
inspecting the Vessel and her cargo and papers and, at the request of the
Mortgagee, Mortgagor will deliver for inspection copies of any and all contracts
and documents relating to the Vessel, whether onboard or not. Until
an event of default has occurred and is continuing, any such inspection shall be
conducted at a time and in a manner which does not interfere with the operation
of the Vessel and in the ordinary course of Mortgagor’s business.
ARTICLE
VIII
TAXES
Mortgagor shall pay and discharge, when
due and payable from time to time, all taxes, assessments, penalties and
governmental charges imposed upon the Vessel.
ARTICLE
IX
POSSESSION
Subject to Article XI, the Mortgagor
may retain and possess the Vessel or charter the Vessel as permitted by law;
provided, however, that the Mortgagor shall not sell, mortgage, transfer nor
change the Vessel’s flag or otherwise encumber the Vessel, except as provided by
in Article VI hereof, without the written approval of the
Mortgagee.
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ARTICLE
X
REQUISITION OF TITLE OR
USE
In the event that the title to or
ownership of the Vessel, or the use of the Vessel, shall be requisitioned,
purchased or taken by, or the Vessel shall be seized by or forfeited to, any
government of any country or any department, agency or representative thereof,
pursuant to any present or future law, proclamation, decree, order or otherwise
or by any other person or persons, whether or not acting under color of
governmental authority, the compensation, purchase price, reimbursement or award
for such requisition, purchase, seizure, forfeiture or other taking of such
title, ownership or use shall forthwith be and become payable to the
Mortgagee. The Mortgagor hereby constitutes and appoints the
Mortgagee as its true and lawful attorney, for it and in its name, place and
stead, from and after a requisition, purchase, seizure, forfeiture, or other
taking of such title, and during the continuance thereof, to collect, receipt
for, acknowledge the payment of, xxx for and execute any documentation or
writing that may be necessary or required in order to obtain payment of said
compensation, purchase price, reimbursement or award, giving and granting to
said attorney full power and authority to do and to perform every act and thing
whatsoever requisite or necessary to done in order to protect the assets set
forth herein, including the ship and its appurtenances. Mortgagor
shall promptly execute and deliver to Mortgagee such documents and shall
promptly do and perform such acts as in the opinion of the Mortgagee may be
necessary or useful to facilitate or expedite the collection by the Mortgagee of
such compensation, purchase price, reimbursement or award.
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ARTICLE
XI
DEFAULT
(a) In
the event of (i) Mortgagor’s default of prompt and punctual payment when due in
the payment of any amounts due under the Guarantee, or (ii) any other “event of
default” under the Note, the Guarantee or any other document setting forth
payment terms, or (iii) any other “event of default” under and as defined in the
Note, Guarantee and Transaction Documents shall have occurred and be continuing,
then in every such case the entire unpaid amount due under the Note may be
declared immediately due and payable at the Mortgagee’s option without prior
notice. If such sums are not payable forthwith, the Mortgagee, at its
sole discretion and option, may foreclose or enforce this mortgage lien by suit
in rem in admiralty and
the Mortgagee shall be entitled to the appointment of a receiver or receivers of
the Vessel and the mortgaged property and the revenues thereof. The
Mortgagor shall execute any documents requested by the Mortgagee to expedite the
foreclosure proceedings. The Mortgagee shall shave the right to bid
or purchase the Vessel in the foreclosure proceedings.
(b) In
case the Mortgagee shall have proceeded to enforce any right under this Mortgage
by foreclosure and such proceedings have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Mortgagee, then the
Mortgagor and the Mortgagee shall be restored to their former
positions.
(c) No
delay or omission of the Mortgagee in the exercise of any right or power
accruing upon any default shall impair any such right or power, or shall be
construed as a waiver of any such default or acquisition herein; and every power
and remedy given herein may be exercised from time to time and as often as may
be deemed expedient.
(d) The
remedies in favor of the Mortgagee provided for herein shall not be construed to
preclude the Mortgagee in the event of default hereunder from enforcing any
other appropriate remedies against the Mortgagor or the Vessel, or from
proceeding by suit as the Mortgagee may consider advisable to enforce the
payment or performance of any obligation secured hereby.
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ARTICLE
XII
PREFERRED MORTGAGE STATUS:
FILING OF FINANCING STATEMENTS
No provision of this Mortgage shall be
deemed to constitute a waiver by the Mortgagee of the preferred status hereof,
and any provision of this Mortgage that would otherwise constitute such a waiver
shall to such extent be of no force or effect. The Mortgagor hereby
irrevocably authorizes the Mortgagee to file and record financing statements
under the Uniform Commercial Code in any jurisdiction where the same may be in
force or under any legislation having a similar effect for the purpose of
perfecting or continuing the perfection of the security interests granted by the
Mortgagor to the Mortgagee herein without obtaining the signature of the
Mortgagor thereto. The Mortgagor hereby irrevocably authorizes the
Mortgagee to execute any such financing statement or similar document in the
name of the Mortgagor.
ARTICLE
XIII
OTHER
DOCUMENTS
In the event this Mortgage, the Note or
the Transaction Documents or any provisions thereof are held invalid, in whole
or in part under any present or future law or any decisions of any court having
jurisdiction thereof, the Mortgagor shall execute such other and further
instruments as in the opinion of counsel for Mortgagee will carry out the true
intent and spirit of this Mortgage. From time to time, the Mortgagor
shall execute such further assurances as in the opinion of counsel for the
Mortgagee may be required to more effectually subject the property herein
mortgaged or intended to be mortgaged to the payment of all obligations under
the terms of the Guarantee and to otherwise effectuate the intent of this
Mortgage. Invalidity of any provision hereof shall not impair or
defeat the provisions hereof which are valid.
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ARTICLE
XIV
NOTICES
All notices and other communications
required or permitted under this Mortgage shall be in writing, shall be sent to
the address of the Mortgagor, 000 Xxxxx Xxxxxxx Xxx, Xxxxx 000, Xxxxx Xx 00000,
hereof by personal delivery, telefax, overnight mail, courier (with receipt of
delivery) or certified mail and shall be effective when received. Any
address for notices may be changed by written notice thereof to the other
parties as provided in this Article.
Notwithstanding any provisions of this
Article XIV to the contrary, any notices and other communications required or
permitted to be made to Mortgagor under this Mortgage shall be deemed in
compliance and fulfillment of this Article if delivered to Mortgagor’s
Registered Agent, Xxxxxx and Calder (“Registered Agent”), at the address set
forth below: XX Xxx 000, Xxxxxx Xxxxx, Xxxxx Church Street, Georgetown, Grand
Cayman KYI 1104 Cayman Islands.
ARTICLE
XV
SUCCESSORS AND
ASSIGNS: THIRD PARTY BENEFICIARIES
All the covenants, stipulations, and
agreements in this Mortgage shall bind and inure to the benefit of the
Mortgagor, its successors and assigns, and the Mortgagee, its successors and
assigns. Mortgagor may not assign its rights and obligations
hereunder without prior written consent of Mortgagee. Mortgagee may
assign its rights and obligations hereunder without prior written consent of
Mortgagor, to any party.
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ARTICLE
XVI
GOVERNING
LAW
(a) This
Mortgage and all the rights and obligations of the parties hereunder and their
successors and assigns shall be governed by the laws of the flag state of the
Vessel, including any treaties and conventions to which the flag state is a
signatory, and without giving effect to its conflict of law rules.
(b) Each
of the parties irrevocably and unconditionally agrees that (i) a legal suit,
action or proceeding arising out of or based upon this Mortgage may be brought
by a party hereto in the United States District Court for the Southern District
of Florida, and (ii) a legal suit, action or proceeding arising out of or based
upon this Mortgage and the assignment in rem against the Vessel may
be brought by a party hereto in any jurisdiction where the Vessel may be
found.
(c) The
Mortgagee (i) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and any claim that any such action or proceeding has been brought in
an inconvenient forum in respect of any such proceeding brought in the Southern
District of Florida, and (ii) submits to the non-exclusive jurisdiction of the
Southern District of Florida in any suit, action or proceeding. If
for any reason the Southern District of Florida lacks jurisdiction over a matter
arising out or based upon the Mortgage, excluding any in rem action against the
Vessel, the Circuit Court for the State of Florida in Dade County, Florida,
shall have non-exclusive jurisdiction and all other provisions of this Article
shall remain valid and enforceable in such court.
(d) The
parties hereby agree to hereby irrevocably and unconditionally waive any right
to a jury trial as regards any matter that may result in litigation under this
Mortgage.
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ARTICLE
XVII
COUNTERPARTS
This Mortgage may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
ARTICLE
XVIII
INDEMNIFICATION
Mortgagor hereby assumes liability for
and agrees to indemnify, defend, protect, save and hold harmless the Mortgagee,
its agents and assignees, and their employees, officers and directors (the
“Indemnitees”) from and against any and all losses, damages, injuries, claims,
administration of claims, penalties, demands and all expenses, legal or
otherwise (including reasonable attorneys’ fees) of whatever kind and nature
arising from Mortgagor’s ownership, use, condition, operation or maintenance of
the Vessel, or this Mortgage or the related documents, during the term of the
Transaction Documents; provided that no Indemnitee shall be indemnified for its
own negligence. Any claim, defense, setoff, or other right of
Mortgagor against any Indemnitee shall not in any way affect, limit, or diminish
Mortgagor’s indemnity obligations hereunder except as herein
provided. Mortgagor shall notify Mortgagee within a reasonable time,
as to any claim, suit, action, damage, or injury related to the Vessel of which
Mortgagor has actual or other notice and shall, at its own cost and expense,
defend any and all suits, including frivolous suits and claims, which may be
brought against an Indemnitee or the Vessel, shall satisfy, pay and discharge
any and all judgments and fines that may be recovered against an Indemnitee in
any such action or actions, provided, however, that such Indemnitee shall give
Mortgagor written notice of any such claim or demand. Mortgagor
agrees that its obligations under this section shall survive the expiration of
this Mortgage.
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ARTICLE
XIX
TRADING
LIMITS
So long as this Mortgage remains in
full force and effect, the parties agree that the Vessel shall have trading
limits of commensurate to its navigation and evidenced by certificates of
insurance.
ARTICLE
XX
MISCELLANEOUS
(a) This
Mortgage shall not be modified or amended except by an instrument in writing
signed on behalf of all of the parties hereto.
(b) This
Mortgage shall be binding upon and inure to the benefit of the parties and their
respective, permitted successors, heirs, executors, administrators, assigns and
all other persons claiming by, through or under them.
(c) This
Mortgage and related instruments executed in connection therewith constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements, promises, negotiations,
representations or understandings, whether written or oral, between the parties
hereto relating to the subject matter of this Mortgage. Any prior
agreements, promises, negotiations, representations or understandings, either
oral or written, not expressly set forth in this Mortgage or related instruments
executed in connection therewith shall have no force or effect.
[
SIGNATURES ON FOLLOWING PAGES ]
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IN WITNESS WHEREOF, the Mortgagor has
executed this Mortgage the day and year first written above.
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MORTGAGOR
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ISLAND
BREEZE INTERNATIONAL
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By:
__________________________________________________________
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Name: Xxxxxxx
X. Xxxxxx
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Title: President
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ACKNOWLEDGMENT
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On this _______ day of
_____________________, 2008, before me the undersigned Notary Public, personally
appeared _______________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence), who being duly sworn, did
depose and say that he resides at
__________________________________________________, that he is the
________________ of Island Breeze International, the entity described in and
which executed the foregoing instrument; that he knows the seal of said entity;
that the seal affixed to said instrument is such seal; that it is so affixed by
authority of the Member(s) of said company; and that he signed his name thereto
by like order.
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[Notarial
Seal]
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Notary
Public in and for
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My
commission expires:
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MORTGAGEE’S
ACCEPTANCE
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XXXXXX,
X.X.
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By:
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Name:
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Title:
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ACKNOWLEDGMENT
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On this _______ day of
_____________________, 2008, before me the undersigned Notary Public, personally
appeared _______________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence), who being duly sworn, did
depose and say that he resides at
__________________________________________________, that he is the
________________ of Xxxxxx, X.X., the entity described in and which executed the
foregoing instrument; that he knows the seal of said entity; that the seal
affixed to said instrument is such seal; that it is so affixed by authority of
the Member(s) of said company; and that he signed his name thereto by like
order.
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[Notarial
Seal]
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Notary
Public in and for
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My
commission expires:
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