MORTGAGE AND SECURITY AGREEMENT
Exhibit
10.95
This
instrument was prepared by and return to:
Xxxxx
X. Xxxxxxxx, Esq.
0000
Xxxx Xxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
This
instrument (hereinafter referred to as this “Mortgage”)
is
made this 23rd day of April, 2007, by and between COSTA
XXXXXX XX REAL ESTATE, LLC,
a
Florida limited liability company, XXXXX
XXXXXX III REAL ESTATE, LLC,
a
Florida limited liability company, TDS
TOWN HOMES (PHASE 1), LLC,
a
Florida limited liability company, TDS
TOWN HOMES (PHASE 2), LLC,
a
Florida limited liability company (hereinafter collectively referred to as
“Mortgagor”)
with
an address of 0000 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and RESORTS
FUNDING GROUP, LLC,
a
Florida limited liability company or its successors or assigns (hereinafter
referred to as “Lender”)
with
an address of 0000 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS,
Mortgagor’s affiliate, American Leisure Holdings, Inc., a Nevada corporation
(“Borrower”)
has
executed to the order of Lender a Promissory Note of even date herewith in
the
principal amount of $10,000,000.00 (the “Note”),
which
Note was executed pursuant to a Credit Agreement of even date herewith between
Borrower and Lender (“Credit
Agreement”).
NOW,
THEREFORE, to secure the payment of all sums due under, and the performance
and
observance by Mortgagor and Borrower, as applicable, of all terms, covenants
and
conditions contained in, the Note and the Credit Agreement, this Mortgage,
and
all additional Notes and other documents secured by this Mortgage pursuant
to
the terms of Section 1.18 hereof (all such documents are collectively referred
to as “Loan
Documents”),
and
in order to charge the properties, interests and rights hereinafter described
with such payment, performance and observance, and in consideration of the
credit extended to Mortgagor, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor has granted, bargained, sold and conveyed and does
by
these presents grant, bargain, sell, convey, assign, mortgage, deliver, set
over, warrant and confirm unto the said Lender and its successors and assigns,
the Land, Improvements, Fixtures and Personal Property, and Other Rights
and
Property (all of which are hereinafter sometimes referred to collectively
as the
“Premises”),
more
particularly described as follows and located and situate in Polk County,
Florida:
(i) the
real
property described in said Exhibit A
(the
“Land”);
and
(ii) all
buildings, structures and other improvements of every nature whatsoever now
or
hereafter situated on the Land (the “Improvements”);
and
(iii) all
fixtures, equipment, general intangibles, goods, inventory and personal property
of every kind and nature whatsoever (whether tangible or intangible), now
or
hereafter owned by Mortgagor and located in, on, about or attached to the
Land
or Improvements or used or intended to be used with or in connection with
the
construction, use, operation, maintenance or enjoyment of the Land or
Improvements or derived or arising from or relating or appertaining to the
Land
or Improvements or the use, operation, maintenance or enjoyment thereof,
and all
extensions, additions, improvements, betterments, renewals, replacements
or
proceeds (including, but not limited to, insurance and condemnation proceeds)
of
the foregoing, including, but not limited to, all gas and electric fixtures
and
apparatus, plumbing fixtures and apparatus, heating, ventilating and air
conditioning fixtures and apparatus, carpeting and other floor coverings,
furniture, furnishings, machinery, building materials and supplies, sprinklers,
fire extinguishers and other safety and security equipment and apparatus,
elevators, engines, motors, ranges and other cooking apparatus, washers,
dryers,
water heaters, refrigerators, appliances, window screens, awnings, storm
sashes,
mirrors, mantels, furniture, furnishings, vehicles, pool equipment, books,
records, accounts, trade names, trademarks, goodwill, all building and other
permits, surveys, architectural and engineering plans and specifications,
certifications, studies and work product prepared and hereafter prepared
relating to the design or construction of the Improvements or proposed
improvements, governmental approvals, certificates of occupancy and completion,
licenses, authorizations, insurance policies and the proceeds thereof,
agreements with any utility companies, all deposits associated with the
foregoing, any consents and approvals which Mortgagor may now or hereafter
own
with respect to or in connection with the Premises; all warranties and
guaranties covering any appliances, equipment and fixtures now or hereafter
located on or placed upon the Premises, including, without limitation, air
conditioning, heating and other appliances and equipment; all existing and
future contracts, leases, rental agreements, franchise agreements, management
contracts, construction contracts, and other contracts, licenses, and permits
now or hereafter affecting the Premises or any part thereof; all existing
and
future contracts in connection with the use, management, sale, leasing and
maintenance of the Premises or any portion thereof; all accounts, accounts
receivable, other receivables, contract rights, chattel paper, instruments
and
documents; any other obligations or indebtedness owed to Mortgagor in connection
with the Premises from whatever source arising; all rights of Mortgagor to
receive any performance or any payments in money or kind; all guaranties
of the
foregoing and security thereof; all right, title and interest of Mortgagor
in
and with respect to goods, services or property that give rise to or that
secure
any of the foregoing; and all right, title and interest of Mortgagor in any
such
property subject to or covered by a security agreement, conditional sales
contract, chattel mortgage or similar lien or claim together with the benefit
of
any deposits or payments now or hereafter made by Mortgagor or on its behalf,
all of which shall be deemed to be a portion of the security for the
indebtedness herein mentioned and to be covered by this Mortgage (the
“Fixtures
and Personal Property”);
and
(iv) any
and
all other, further or additional title, estates, interests or rights which
may
at any time be acquired by Mortgagor in or to the Land, Improvements, and
Fixtures and Personal Property; all leases, rental agreements and other
occupancy agreements pertaining to the Land or the Improvements or any part
thereof; all easements, rights-of-way, gores of land, vaults, streets, ways
alleys, passages, sewer rights, waters, water courses, water rights and powers;
all estates, rights, titles, interests, privileges, liberties, tenements,
hereditament and appurtenances whatsoever, in any way belonging, relating
to or
appertaining to the Premises, or any part thereof, or which hereafter shall
in
any way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor; and the reversion and reversions, remainder and
remainders, and rents, issues, profits, revenues thereof (including but not
limited to, all condemnation payments, insurance proceeds, payments under
leases
and tenancies, sale proceeds, purchase deposits, tenant security deposits
and
escrow funds), and all the estate, right, title, interest, property, possession,
claim and demand whatsoever at law, as well as in equity, of Mortgagor of,
in
and to the same (the “Other
Rights and Property”).
-2-
TO
HAVE
AND TO HOLD the Premises and all estate therein, together with all the rights,
privileges, and appurtenances thereunto belonging, and all proceeds, products,
replacements, additions, betterments, extensions, improvements, substitutions,
renewals and accessions to any of the foregoing, unto the said Lender and
its
successors and assigns forever.
PROVIDED,
HOWEVER, that (a) if Mortgagor, Borrower, or any other party shall have promptly
paid or caused to be paid to Lender the Obligations (as that term is defined
in
the Credit Agreement), all without any deduction or credit for taxes or other
similar charges paid by Mortgagor, (b) if Mortgagor and Borrower shall have
fully kept, performed and observed all the covenants and promises in the
Note,
in this Mortgage, in all other Loan Documents, and in all instruments relating
to or securing any note or notes executed pursuant to Section 1.18 hereof
and
secured by the lien of this Mortgage to be kept, performed or observed by
Mortgagor, then Lender shall execute a satisfaction of this Mortgage and
thereupon this Mortgage shall cease and terminate.
Mortgagor
does hereby expressly covenant, agree and stipulate with Lender as
follows:
ARTICLE
I
Section
1.1. Payment
of Note and Other Sums.
Borrower shall pay the principal sum evidenced by said Note and Loan Documents
and all interest thereon promptly as each payment becomes due, and all other
sums required to be paid pursuant to the provisions of the Note and the Loan
Documents, at the times and in accordance with the provisions of said Note
and
the other Loan Documents.
Section
1.2. Warranty
of Title.
Mortgagor hereby represents, warrants and covenants to and with Lender that
Mortgagor is lawfully seized and possessed of an indefeasible and marketable
estate in fee simple in the Premises; that Mortgagor has good right, full
power
and lawful authority in law and in equity to convey, mortgage and encumber
the
same in fee simple pursuant to this Mortgage; that the Premises are free
and
clear of all liens, encumbrances and claims of any kind whatsoever except
for
those listed on Exhibit B attached hereto and incorporated herein (“Permitted
Exceptions”);
that
Mortgagor will make at Mortgagor’s expense and at no expense to Lender such
other and further assurances to perfect the fee simple estate in and to the
Land
and title to the Premises, in Lender as may hereafter be required; and that
Mortgagor hereby fully warrants unto Lender the title to said Premises subject
only to the matters appearing in the title policy delivered by Mortgagor
to
Lender in connection with this Mortgage
and will defend the same against the lawful claims and demands of all persons
whomsoever.
-3-
Section
1.3. Monthly
Deposits.
Upon
the demand of Lender which may be made at any time after the occurrence of
an
Event of Default (as hereinafter defined), Mortgagor will deposit with Lender,
on the due date of each monthly payment under the Note, such amounts as in
the
estimation of Lender shall be necessary or proper to pay all taxes, assessments,
insurance premiums and other similar charges relating to the Premises as
they
become due. All of said deposits are to be held by Lender, free of any liens
or
claims on the part of creditors of Mortgagor and as part of the security
of
Lender, and shall be used by Lender to pay current taxes, assessments, insurance
premiums, and other sums payable in connection with the Premises and other
similar charges on the Premises as the same accrue and are payable. Payment
of
such items from said sums may be made by Lender even though such payments
will
benefit subsequent owners of the Premises or the Land. Said deposits shall
not
be, nor be deemed to be, trust funds but may be commingled with the general
funds of Lender. If said deposits are insufficient to pay such taxes,
assessments, insurance premiums and similar charges in connection with the
Premises in full as the same become payable, Mortgagor will deposit with
Lender
such additional sum or sums as may be required in order for Lender to pay
such
taxes, assessments, insurance premiums and other charges payable in connection
with the Premises in full. Upon any default or event of default under the
provisions of this Mortgage, the Note, the Credit Agreement, or any of the
other
Loan Documents, Lender may, at its option, apply any money in the fund resulting
from said deposits to the payment of the indebtedness secured hereby in such
manner as it may elect.
Section
1.4. Payment
of Taxes, Liens and Utility Charges.
(a) Mortgagor
shall pay or cause to be paid on or before delinquency thereof all taxes,
assessments, dues, fines, fees, impositions and public charges of every
character whatsoever, whether general or special, now or hereafter levied,
assessed, confirmed or imposed on or in respect of, or which may be a lien
upon,
the Premises or the Land or any part thereof, or any right, interest or estate
therein, and shall promptly submit to Lender such evidence of the due and
punctual payment thereof as Lender may require.
(b) Mortgagor
will keep said Premises free from all lien claims of every kind, whether
paramount or subordinate to this Mortgage (other than the Permitted Exceptions),
and Mortgagor will have any such liens discharged within thirty (30) days
of
filing of any such lien.
(c) Mortgagor
further agrees to pay all earnings, income, profits and excess profits taxes
and
other governmental charges levied, assessed or imposed by the United States
of
America or by any state, county, municipality or other taxing authority upon
Mortgagor or in respect of the Premises.
(d) Mortgagor
will promptly pay or cause to be paid all charges made by utility companies,
whether public or private, for services furnished or used in connection with
said Premises.
-4-
(e) In
the
event of the passage of any state, federal, municipal or other governmental
law,
order, rule or regulation, in any manner changing or modifying the laws now
in
force governing the taxation of debts secured by mortgages or the manner
of
collecting taxes so as to affect adversely Lender, Mortgagor will promptly
pay
any such tax on or before the due date thereof.; and if Mortgagor fails to
make
such prompt payment or if any such state, federal, municipal or other
governmental law, order, rule or regulation prohibits Mortgagor from making
such
payment or would penalize Lender if Mortgagor makes such payment, then the
entire balance of the principal sum secured by this Mortgage and all interest
accrued thereon shall, without notice, immediately become due and payable
at the
option of Lender. Nothing contained herein, however, shall require Mortgagor
to
pay taxes on the overall income of Lender.
Section
1.5. Insurance.
(a) Mortgagor
shall procure or cause to be procured, and deliver to and continuously maintain
for the benefit of Mortgagor and Lender, as their respective interests may
appear, original paid up insurance policies from such insurance companies,
in
such amounts, in form and substance, with such expiration dates and containing
a
non-contributory standard mortgagee clauses, and a mortgagee loss payable
endorsement in favor of Lender, all as may be required and satisfactory to
Lender, and providing the following types of insurance covering the Premises,
Mortgagor, and the interests and liabilities incident to the ownership,
possession and operation thereof:
(i) insurance
against loss or damage by fire, lightning, extended coverage, windstorm,
hail,
explosion riot, riot attending a strike, civil commotion, aircraft, vehicles,
smoke, vandalism and malicious mischief, and against such mischief and against
such other hazards as, under good insurance practices, from time to time
are
insured against for properties of similar character and location, the amount
of
which insurance shall be not less than the greater of (A) the balance of
the
indebtedness secured hereby or (B) 100% of the full replacement cost of the
Premises, without deduction for depreciation, and which policies of insurance
shall contain satisfactory replacement cost and agreed amount/stipulated
value
endorsements; and
(ii) accident
and broad form comprehensive liability insurance for Mortgagor in such amount
as
may be required by Lender;
(iii) if
at any
time the Land or any portion thereof is located in a “Flood
Hazard Area”
pursuant to the Flood Disaster Act Protection Act of 1973 or any successor
or
supplemental act thereto, flood insurance in such amount as may be required
by
Lender; and
(iv) such
other insurance (including, but not limited to, rental value and business
interruption insurance, war risk insurance, builder’s risk insurance, and
worker’s compensation insurance) on Mortgagor, the Premises or any part thereof,
or for the benefit of Mortgagor, as may from time to time be reasonably required
by Lender against such other insurance casualties or risk.
-5-
(b) In
the
event of the occurrence of an insured or uninsured casualty loss, Lender
shall
have the option to declare the Note and all other sums secured hereby to
be
immediately due and payable.
(c) Lender
is
hereby authorized and empowered, at its option, to adjust or compromise any
loss
under any insurance policies maintained pursuant to this Section, and to
collect
and receive the proceeds from any such policy or policies. Each insurance
company is hereby authorized and directed to make payment for all such losses
directly to Lender, instead of to Mortgagor and Lender jointly. In the event
any
insurance company fails to disburse directly and solely to Lender but disburses
instead either solely to Mortgagor or to Mortgagor and Lender jointly, Mortgagor
agrees immediately to endorse and transfer such proceeds to Lender. Upon
the
failure of Mortgagor to endorse and transfer such proceeds as aforesaid,
Lender
may execute such endorsements or transfers for and in the name of Mortgagor
and
Mortgagor hereby irrevocably appoints Lender as Mortgagor’s agent and
attorney-in-fact so to do. Subject to the provisions of Section 1.7(g), after
deducting from said insurance proceeds all of its reasonable expenses incurred
in the collection and administration of such sums, including attorneys’ fees,
Lender may apply the net proceeds or any part thereof, at its option, (i)
to the
payment of the indebtedness secured hereby, whether or not due and in whatever
order Lender elects, (ii) to the repair and/or restoration of the Premises,
and/or (iii) for any other purposes or objects for which Lender is entitled
to
advance funds under this Mortgage or any of the other Loan Documents, all
without affecting the lien and security interest created by this Mortgage,
and
any balance of such moneys then remaining shall be paid to Mortgagor or the
person or entity lawfully entitled thereto. Lender shall not be held responsible
for any failure to collect any insurance proceeds due under the terms of
any
policy regardless of the cause of such failure.
(d) At
least
thirty (30) days prior to the expiration date of each policy maintained pursuant
to this Section, a renewal or replacement thereof satisfactory to Lender
shall
be delivered to Lender. Mortgagor shall deliver to Lender receipts evidencing
the payment for all such insurance policies and renewals or replacements.
Mortgagor hereby assigns to Lender all unearned premiums under any insurance
policies related in any way to the Premises as further security hereunder.
In
the event of the foreclosure of this Mortgage or any other transfer of title
to
the Premises in extinguishment or partial extinguishment of the indebtedness
secured hereby, all right, title and interest of Mortgagor in and to all
insurance policies then in force shall pass to the purchaser or to Lender,
its
nominee or other transferee of the Premises, as the case may be, and Lender
is
hereby irrevocably appointed by Mortgagor as attorney-in-fact for Mortgagor
to
assign any such policy to said purchaser or to Lender, its nominee or other
transferee, as the case may be, without accounting to Mortgagor for any unearned
premiums thereon.
(e) All
insurance policies must contain a mortgagee’s clause acceptable to Lender, with
a stipulation that coverage will not be terminated, canceled, diminished
or
altered without a minimum of thirty (30) days’ prior written notice to Lender,
and without any disclaimer of the insurer’s liability for failure to give such
notice. All deductible provisions must be fully acceptable to Lender. Mortgagor
may obtain insurance form any insurance company that Mortgagor may choose
that
is reasonably acceptable to Lender.
(f) If
Mortgagor fails to provide any required insurance or fails to continue such
insurance in force, Lender may do so at Mortgagor’s expense as provided in
Section 2.7.
-6-
MORTGAGOR
ACKNOWLEDGES THAT IF LENDER SO PURCHASES ANY SUCH INSURANCE, THE INSURANCE
WILL
PROVIDE LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE PREMISES, UP TO
THE
BALANCE OF THE NOTE; HOWEVER, MORTGAGOR’S EQUITY IN THE COLLATERAL MAY NOT BE
INSURED. IN ADDITION, THE INSURANCE MAY NOT PROVIDE ANY PUBLIC LIABILITY
OR
PROPERTY DAMAGE INDEMNIFICATION AND MAY NOT MEET THE REQUIREMENTS OF ANY
FINANCIAL RESPONSIBILITY LAWS.
(g) For
purposes of insurance coverage on the Premises, Mortgagor authorizes Lender
to
provide to any person (including any insurance agent or mortgage company)
all
information Lender deems appropriate, whether regarding the Premises or the
loan
evidenced by the Note.
Section
1.6. Condemnation.
If all
or any material part of the Premises shall be damaged or taken through
condemnation (which term when used in this Mortgage shall include any damage
or
taking by any governmental authority and any transfer by private sale in
lieu
thereof), either temporarily or permanently, the entire indebtedness secured
hereby shall, at the option of Lender, become immediately due and payable.
Mortgagor immediately upon obtaining knowledge of any proposed taking of
the
Premises or any part thereof, will notify Lender. Lender shall be entitled
to
all compensation, awards, damages, claims, rights of action, proceeds, and
other
payments, and the right thereto, and is hereby authorized, at its option,
to
commence, appear in and prosecute, in its own or Mortgagor’s name, any action or
proceeding relating to any condemnation and to settle or compromise any claim
in
connection with a condemnation. All such compensation, awards, damages, claims,
rights of action, proceeds and other payments, and the rights thereto are
hereby
assigned by Mortgagor to Lender and Lender is authorized, at its option,
to
collect and receive the same and to give proper receipts and acquittances
therefor without any obligation to question the amount thereof. After deducting
from said condemnation proceeds all of its expenses incurred in the collection
and administration of such sums, including attorney’s fees, Lender may apply the
net proceeds or any part thereof, at its option, (a) to the payment of the
indebtedness secured hereby, whether or not due and in whatever order Lender
elects, (b) to the repair and/or restoration of the Premises and/or (c) for
any
other purposes or objects for which Lender is entitled to advance funds under
this Mortgage or any of the other Loan Documents, all without affecting the
security interest created by this Mortgage, and any balance of such moneys
then
remaining shall be paid to Mortgagor or any other person or entity lawfully
entitled thereto. Mortgagor agrees to execute such further assignments of
any
compensation, awards, damages, claims, rights of action, proceeds, and other
payments, as Lender may require.
Section
1.7. Care
of Premises.
(a) Mortgagor
will keep the Premises in good condition and repair, will not commit or suffer
any waste and will not do or suffer to be done anything which will increase
the
risk of fire or other hazard to the Premises or any part thereof or which
would
or could result in the cancellation of any insurance policy carried with
respect
to the Premises.
(b) Mortgagor
will not construct any improvements on the Premises nor remove, demolish
or
alter the design or structural character of any building, fixture, chattel
or
other part of the Premises without the prior written consent of Lender, and
Mortgagor will not permit the removal, demolition or alteration of any
Improvements. Mortgagor shall not take any action to rezone the Premises
nor
shall Mortgagor impose any restrictions, agreements or liabilities upon the
Premises without, in each case, the prior written consent of
Lender.
-7-
(c) If
the
Premises or any part thereof is damaged by fire, windstorm, flood or other
cause, Mortgagor will give immediate oral and written notices of the same
to
Lender.
(d) Lender
is
hereby authorized and empowered to enter and to authorize others to enter
upon
any or all of the Premises, at any reasonable time and from time to time,
to
inspect the same, to perform or observe any covenants, conditions or terms
which
Mortgagor shall fail to perform, meet or comply with, or for any other purpose
in connection with the protection or preservation of Lender’s security, without
thereby becoming liable to Mortgagor or any person in possession holding
under
Mortgagor. Mortgagor agrees that it will open and cause its agents, managers,
operators, tenants or lessees to open to Lender all areas within the Premises
reasonably necessary or convenient with respect to the requirements hereof,
and
Mortgagor represents that each lease of the Premises provides reasonable
inspection rights to Mortgagor which may be exercised by Lender.
(e) Mortgagor
will promptly comply with all present and future laws, ordinances, rules
and
regulations of any governmental authority affecting the Premises or any part
thereof. Mortgagor shall also comply with all restrictions, agreements or
obligations binding upon Mortgagor, the Premises, the Land or any portion
thereof.
(f) If
all or
any part of the Premises shall be damaged by fire or other casualty, Mortgagor
will promptly restore the Premises to the equivalent of its original condition
and if a part of the Premises shall be taken through condemnation, Mortgagor
will promptly restore, repair or alter the remaining portions of the Premises
in
a manner satisfactory to Lender. Notwithstanding the foregoing, Mortgagor
shall
not be obligated so to restore, repair or alter unless in each instance,
Lender
agrees to make available to Mortgagor (pursuant to a procedure satisfactory
to
Lender) any net insurance or condemnation proceeds actually received by Lender
hereunder in connection with such casualty loss or condemnation, to the extent
such proceeds are required to defray the expense of such restoration, repair
or
alteration; provided, however, that the insufficiency of any such insurance
or
condemnation proceeds to defray the entire expense of restoration, repair
or
alteration shall in no way relieve Mortgagor of its obligation to restore,
repair or alter. In the event all or any portion of the Premises shall be
damaged or destroyed by fire, windstorm, flood or other casualty or by
condemnation, Mortgagor shall promptly deposit with Lender a sum equal to
the
amount by which the estimated cost of the restoration of the Premises (as
determined by Lender in its good faith judgment) exceeds the actual net
insurance or condemnation proceeds with respect to such damage or
destruction.
(g) Notwithstanding
the provisions of Sections 1.5 and 1.6 hereof to the contrary, in the event
that
any portion or portions of the Premises are damaged or destroyed by fire
or by
any other casualty, or are the subject of a “de minimis” (for purposes of this
Section 1.7(g) the term “de minimis” shall mean an amount, as determined by
Lender in its sole discretion, which does not adversely affect the actual
use of
the Improvements) condemnation, and
such
damage, destruction, or condemnation results in the need for repair, rebuilding,
or restoration work to be performed on the Premises (such repair, rebuilding,
or
restoration is referred to herein as the “Work”),
Lender shall allow Mortgagor to use the amount by which the proceeds of all
insurance policies, judgments, settlements, or awards collected with respect
to
such damage, destruction, or condemnation (except such amounts as are
attributable to a loss of rents) exceed the cost, if any, to Lender for the
recovery of such proceeds (said net amount is defined herein as the
“Reconstruction
Funds”),
to
perform the Work, so long as the following conditions have been
met:
-8-
(i) No
Event
of Default exists hereunder, under the Note, or under any other of the Loan
Documents;
(ii) Mortgagor
shall have delivered evidence satisfactory to Lender that the Improvements
may
be reconstructed in accordance with all applicable zoning and building codes,
and all rules, regulations, and ordinances of governmental authorities and
that,
upon completion of the Work, the condition of the Improvements will be at
least
equal in value and general utility to that which existed immediately prior
to
such casualty or condemnation;
(iii) Mortgagor
shall have delivered evidence satisfactory to Lender that sufficient funds,
including the Reconstruction Funds, are available to perform the Work and
that
the Work is capable of completion at least three (3) months prior to the
maturity date of the Note;
(iv) Mortgagor
shall have delivered evidence satisfactory to Lender that business interruption
or income insurance proceeds payable to Mortgagor as a result of the damage
or
destruction, or income from the Improvements, or that sources other than
the
Reconstruction Funds, are sufficient to cover payments of debt service, costs,
and expenses under and in connection with the Note during the period the
Work is
to be performed;
(v) Lender
shall be satisfied, in its sole discretion, that the Work can be completed
and
the Improvements can be ready for occupancy at least three (3) months prior
to
the maturity of the Note;
(vi) All
parties having existing or expected possessory interest in the Premises agree
in
a manner satisfactory to Lender that they will continue or extend their intent
and arrangements for the contract terms then in effect following the work
or are
otherwise required to do so under the terms of their respective
contracts;
(vii) All
parties having operating, management, or franchise interests in or arrangements
concerning the Property agree that they will continue their interests and
arrangements for the contract terms then in effect following the
Work;
(viii) The
cost
of the Restoration Work does not exceed 50% of the value of the Improvements
immediately prior to the damage, destruction or condemnation; and
(ix) Lender
shall be satisfied that it will not incur any liability to any other person
as a
result of such use or release of insurance proceeds.
-9-
In
the
event that the conditions set forth in Section 1.7(g) above are satisfied,
Lender shall make the Reconstruction Funds available to Mortgagor for the
Work
only under the following procedures, terms, and conditions:
1. Mortgagor
shall execute and deliver to Lender a copy of a contract with a licensed
contractor acceptable to Lender setting forth a fixed price for the Work
and a
completion date that acceptable to Lender and that is at least three (3)
months
prior to the maturity date of the Note;
2. Mortgagor
shall demonstrate to Lender that the Reconstruction Funds are at least equal
to
the fixed price of the Work as set forth in said contract or shall deposit
with
Lender funds in the amount by which such fixed price exceeds the Reconstruction
Funds;
3. The
Work
shall be supervised by an architect or engineer and performed in accordance
with
plans and specifications prepared by such architect or engineer and approved
by
Lender;
4. The
Reconstruction Funds, plus any additional funds deposited by Mortgagor, shall
be
received and held by Lender and disbursed in accordance with the terms and
conditions used by Lender in connection with the a loan disbursing agreement
to
be prepared by Lender and Mortgagor’s expense, and Mortgagor shall reimburse
Lender for costs and expenses incurred in connection with such
disbursements;
5. Upon
completion of and final payment for the Work, any remaining Reconstruction
Funds
shall, at the option of Lender, be applied to the indebtedness and obligations
secured by this Mortgage (whether or not then due) in such order as Lender
shall
elect or paid over to Mortgagor; provided, however, that in either event,
any
remaining additional funds deposited by Mortgagor for excess costs shall
be
refunded to Mortgagor; and
6. Mortgagor
shall otherwise comply with the terms and conditions of this Mortgage and
the
other Loan Documents during the performance of the Work.
In
the
event any one or more of the conditions set forth in this Section 1.7(g)
is at
any time not satisfied, Lender may elect, in its discretion, to apply the
Reconstruction Funds to the indebtedness and obligations secured hereby,
whether
or not clue, in such manner as Lender shall elect. Without limiting the
generality of the foregoing, if an Event of Default shall exist and be
continuing hereunder, or if Mortgagor shall fail diligently to pursue and
complete the Work, Lender may, in its sole discretion, apply any undisbursed
Reconstruction Funds and any of Mortgagor’s deposits against the balance of the
indebtedness and obligations secured hereby, whether or not due, in such
manner
as Lender shall elect.
Section
1.8. Further
Assurances; After Acquired Property.
At any
time, and from time to time, upon request by Lender, Mortgagor will make,
execute and deliver or cause to be made, executed and delivered, to Lender
and,
where appropriate, cause to be recorded or re-recorded and/or filed or refiled
at such time and from time to time, and in such offices and places as shall
be
deemed desirable by Lender, any and all such other and further mortgages,
security agreements, financing statements, continuation statements, instruments
of further assurance, certificates
and other documents as may, in the opinion of Lender, be necessary or desirable
in order to effectuate, complete, or perfect, or to continue and preserve
(a)
the obligations of Mortgagor under the Loan Documents and this Mortgage,
and (b)
the lien of this Mortgage as a first and prior perfected lien upon all of
the
Premises, whether now owned or hereafter acquired by Mortgagor subject only
to
the matters appearing in the title policy delivered by Mortgagor to Lender
in
connection with this Mortgage. Upon any failure by Mortgagor so to do, Lender
may make, execute, record, file, rerecord and/or re-file any and all such
mortgages, security agreements, financing statements, continuation statements,
instruments, certificates and documents for and in the name of Mortgagor,
and
Mortgagor hereby irrevocably appoints Lender the agent and attorney-in-fact
of
Mortgagor so to do. The lien hereof will automatically attach, without further
act, to all after acquired property attached to and/or used in the operation
of
the Premises, the Land or any part thereof.
-10-
Section
1.9. Books,
Records, Accounts and Annual Reports.
Mortgagor will keep and maintain or will cause to be kept and maintained,
at
Mortgagor’s expense, proper and accurate books, records and accounts reflecting
all items of income and expense in connection with the operation of the Premises
and in connection with any services, materials, equipment or furnishings
provided in connection with use or operation of the Premises or the construction
of Improvements. Lender shall have the right from time to time at all times
during normal business hours to examine all books, records and accounts relating
to the Premises and Mortgagor at the office of Mortgagor or other person
or
entity maintaining such books, records and accounts and to make copies or
extracts thereof as Lender shall desire. Mortgagor will furnish to Lender
at any
time within forty-five (45) days after demand by Lender, financial statements
and reports as Lender may reasonably request with respect to Mortgagor or
the
Premises.
Section
1.10. Estoppel
Affidavits.
Mortgagor, upon ten (10) days’ prior written notice, shall furnish Lender a
written statement, duly acknowledged, setting forth the unpaid principal
of, and
interest on, the indebtedness secured hereby and whether or not any offsets
or
defenses exist against such indebtedness and, if such offsets or defenses
are
alleged to exist, such statement shall detail the specific facts relating
thereto.
Section
1.11. Subrogation.
Lender
shall be subrogated to the claims and liens of all parties whose claims or
liens
are discharged or paid with the proceeds of the indebtedness secured
hereby.
Section
1.12. Expenses.
Mortgagor will promptly pay or reimburse Lender, upon demand, for all reasonable
attorneys’ fees, costs and expenses incurred by Lender in any proceeding
involving the estate of a decedent or an insolvent, or in any action, legal
proceeding or dispute of any kind in which Lender is made a party, or appears
as
a party, in connection with or affecting the indebtedness secured hereby,
this
Mortgage, any of the other Loan Documents, the interest created hereby,
Mortgagor or any Guarantor, including but not limited to the foreclosure
of this
Mortgage, any proceeding relating to bankruptcy, insolvency or other relief
for
debtors, any condemnation action involving the Premises or any action to
protect
the security hereof; and all such amounts shall be added to the indebtedness
secured by the lien of this Mortgage.
-11-
Section
1.13. Assignment
of Contracts and Other Agreements.
As
additional collateral and further security for the indebtedness secured hereby,
Mortgagor does hereby assign to Lender the interest of Mortgagor in and to
any
and all contracts, leases, rental agreements, franchise agreements, management
contracts, construction contracts, and other contracts, licenses and permits
now
or hereafter affecting the Premises, or any part thereof, and Mortgagor agrees
to execute and deliver to Lender such additional instruments, in form and
substance satisfactory to Lender, as may hereafter be requested by Lender
to
evidence and confirm said assignment; provided, however, that acceptance
of any
such assignment shall not be construed as a consent by Lender to any contract,
lease, rental agreement, franchise agreement, management contract, construction
contract, or other contract, license or permit, or to impose upon Lender
any
obligation with respect thereto. Mortgagor shall faithfully keep and perform,
or
cause to be kept and performed, all of the covenants, conditions, and agreements
contained in each of said instruments, now or hereafter existing, on the
part of
Mortgagor to be kept and performed and shall at all times do all things
necessary to compel performance by each other party to said instruments of
all
obligations, covenants and agreements by such other party to be performed
thereunder.
Section
1.14. Leases.
Mortgagor hereby collaterally assigns and transfers to Lender all the rents,
issues and profits of the Premises, whether now or hereafter accruing, and
hereby gives to and confers upon Lender the right, power and authority to
collect such rents, issues and profits. From time to time, upon the request
of
Lender, Mortgagor shall give further evidence of the foregoing assignment
to
Lender by executing and delivering to Lender specific assignments (in form
and
substance satisfactory to Lender) of the rents, issues and profits. From
time to
time, Mortgagor shall also execute and deliver to Lender any notice to tenants
or other document reasonably required by Lender. Mortgagor irrevocably appoints
Lender its true and lawful attorney-in-fact, at the option of Lender at any
time
and from time to time after the occurrence of any Event of Default under
this
Mortgage (whether or not Lender takes possession of the Premises), to demand,
receive and enforce payment, to give receipts, releases and satisfactions,
and
to xxx, in the name of Mortgagor or Lender, for all such rents, issues and
profits and apply the same to the indebtedness secured hereby; provided,
however, that Mortgagor shall have permission to collect such rents, issues
and
profits (but rents shall not be collected for more than one month in advance)
prior to the occurrence of any Event of Default under this Mortgage. Upon
the
occurrence of any Event of Default, the permission hereby given to Mortgagor
to
collect such rents, issues and profits shall terminate and such permission
shall
not be reinstated upon the cure of the Event of Default without Lender’s
specific written consent. Further, upon the occurrence of any Event of Default,
Mortgagor shall immediately turn over to Lender all rents, issues and profits
in
the actual or constructive possession of Mortgagor (or its agents or
affiliates), together with an accounting thereof. Exercise of Lender’s rights
under this Section, and the application of any rents, issues and profits
to the
indebtedness secured hereby, shall not cure or waive any default. To the
fullest
extent allowed by law, the assignment of the rents, issues and profits of
the
Premises in this Section is intended to be an absolute assignment from Mortgagor
to Lender and not merely the passing of a security interest but Mortgagor
shall
have the right to collect the same so long as no Event of Default under this
Mortgage shall have occurred.
Upon
any
occurrence of any Event of Default under this Mortgage, Lender may, at any
time
without notice, either in person, by agent or by a receiver appointed by
a
court, and without regard
to
the adequacy of any security for the indebtedness hereby secured, enter upon
and
take possession of the Premises, or any part thereof, and in its own name
xxx
for or otherwise collect such rents, issues and profits, including those
past
due and unpaid, and apply the same in accordance with the provisions of Section
2.3(b) hereof The collection of such rents, issues and profits, or the entering
upon and taking possession of the Premises, or the application thereof as
aforesaid, shall not cure or waive any Event of Default or notice of default
hereunder or invalidate any act done in response to such Event of Default
or
pursuant to such notice of default.
-12-
Mortgagor
shall not execute any other assignment of the income, rents, issues or profits,
or any part thereof, from the Premises to any person or entity other than
Lender.
Mortgagor
covenants that it shall, at its sole cost and expense, (a) duly and punctually
perform and discharge, or cause to be performed and discharged, all of the
obligations and undertakings of Mortgagor or its agents under all leases
affecting the Premises, (b) use its best efforts to enforce or secure, or
cause
to be enforced or secured, the performance of each and every obligation and
undertaking of the respective tenants under such leases, (c) promptly notify
Lender if Mortgagor receives any notice from a tenant claiming that Mortgagor
is
in default under a lease, and (d) appear in and defend any action or proceeding
arising under or in any manner connected with the leases.
Mortgagor
shall not execute any leases pertaining to the Property without the prior
written consent of Lender, which consent shall not be unreasonably withheld
and
all leases shall be inferior and subordinate to the lien of this Mortgage
and
the terms of each lease shall so expressly provide.
Section
1.15. No
Sale or Encumbrance of Premises; No Additional Financing.
Mortgagor hereby acknowledges to Lender that (a) the identity and expertise
of
Mortgagor were and continue to be material circumstances upon which Lender
has
relied in connection with, and which constitute valuable consideration to
Lender
for, the extending to Mortgagor of the indebtedness evidenced by the Note,
and
(b) any change in such identity or expertise could materially impair or
jeopardize the security granted to Lender by this Mortgage. Mortgagor therefore
covenants and agrees with Lender that Mortgagor shall not sell, transfer,
convey, mortgage, encumber, lease or otherwise dispose of the Premises or
any
part thereof or any interest therein or engage in additional financing with
respect thereto without the prior written consent of Lender (which consent
may
be granted or denied in Lender’s sole and absolute discretion); provided,
however that Mortgagor shall have the right to dispose of articles of Fixtures
and Personal Property if and only (i) simultaneously therewith Mortgagor
replaces such articles with like articles of equal or greater value, (ii)
the
replacements are not subject to any liens or encumbrances whatsoever other
than
the lien of this Mortgage, and (iii) the replacements are fully paid for
by
Mortgagor and are not subject to any conditional sales contract or financing
device. Any change in the legal or equitable title of the Premises or in
the
beneficial ownership of the Premises (including any change in the ownership
or
control of the any partnership interests or stock of Mortgagor or any partners
thereof), whether or not of record and whether or not for consideration,
or any
sale or other disposition of any interest of Mortgagor except in accordance
with
the terms of this Mortgage shall be deemed a transfer of an interest in the
Premises.
-13-
In
the
event that ownership of the Premises, or any part thereof, becomes vested
in any
person or persons other than Mortgagor, without the prior written approval
of
Lender, Lender may, without notice to Mortgagor, waive such default and deal
with such successor or successors in interest with reference to this Mortgage,
in the same manner as with Mortgagor, without in any way releasing, discharging
or otherwise affecting the liability of Mortgagor hereunder, or for the
indebtedness hereby secured. No sale of the Premises, no forbearance on the
part
of Lender, no extension of the time for the payment of the indebtedness secured
hereby nor any change in the terms thereof consented to by Lender shall in
any
way whatsoever operate to release, discharge, modify, change or affect the
original liability of Mortgagor herein, either in whole or in part, nor shall
the full force and effect of this lien be altered thereby. Any deed, assignment
or other instrument conveying the Premises or any part thereof, shall provide
that the grantee thereunder assumes all of the grantor’s obligations under this
Mortgage, the Note and all other instruments or agreements evidencing or
securing the repayment of the indebtedness secured hereby. In the event such
deed shall not contain such assumption, the grantee under such deed shall
nevertheless be deemed to have assumed such obligations by acquiring the
Premises or such portion thereof subject to this Mortgage.
Section
1.16. Maintenance
of Borrowing Entity.
(a) If
Mortgagor is a partnership or joint venture, Mortgagor shall maintain and
continue in existence in its current form the partnership agreement of
Mortgagor; said agreement shall not be amended or modified in any manner
whatsoever without Lender’s prior written consent, which consent shall not be
unreasonably withheld; and except as expressly permitted in the Loan Agreement,
no partner shall sell, transfer, dispose of, or encumber such partner’s interest
in Mortgagor without the prior written consent of Lender.
(b) If
Mortgagor, or any general partner of Mortgagor is a corporation or a company,
Mortgagor or each such managing member shall maintain and continue in existence
as a corporation and/or company duly organized and in good standing under
the
laws of the state or country of its incorporation and shall continue to be
qualified as a foreign corporation and/or company and remain in good standing
in
Florida and it shall not liquidate, dissolve or suffer an expiration or
revocation of its charter, and except as expressly permitted in the Loan
Agreement, no change in the ownership or control of Mortgagor or such general
partner shall occur without the prior written consent of Lender, whether
by sale
of assets, merger, consolidation, sale of stock interests in Mortgagor or
such
managing member, or any other circumstances where the effect is to pass
ownership of any interest in Mortgagor or such managing member or to pass
control of Mortgagor or the managing member from the persons now exercising
control to others.
Section
1.17. Security
Agreement.
The
Fixtures and Personal Property and Other Rights and Property hereinbefore
described shall be deemed to be part of the real estate and mortgaged hereby
to
the fullest extent permitted by law, and as to the balance of such property
Mortgagor grants to Lender a security interest therein in accordance with
the
Uniform Commercial Code of the State of Florida and, as to such property,
this
Mortgage shall be considered a security agreement under said Uniform Commercial
Code. With respect to such property, Lender is a “secured party” and Mortgagor
is a “debtor” under the Uniform Commercial Code with their respective addresses
being set forth in Section 3.9 below.
-14-
Section
1.18. Future
Advances.
This
Mortgage is given to secure not only existing indebtedness, but also such
future
advances as are made within twenty years from the date hereof, to the same
extent as if such future advances were made on the date of the execution
of this
Mortgage. The total amount of indebtedness that may be so secured may decrease
or increase from time to time, but the total unpaid balance so secured at
one
time shall not exceed $20,000,000.00 plus disbursements made for the payment
of
taxes, levies or insurance on the Premises, with interest on such disbursements.
Nothing contained herein, however, shall obligate Lender to make any future
advances. If Lender makes any future advances, (a) the term “Note”,
as
used in this Mortgage, shall include all promissory notes and other documents
evidencing such future advances in addition to the Promissory Note identified
in
the “WHEREAS” clause of this Mortgage, and (b) the term “Loan
Documents”
shall
include all documents executed in connection with the futures advance(s)
in
addition to all other documents described in Section 1.1
above.
Section
1.19. Leases;
Rent Rolls.
Mortgagor covenants that it shall not, without the prior express written
consent
of Lender, which consent shall not be unreasonably withheld, enter into any
lease affecting all or any portion of the Premises, or materially modify,
terminate, or consent to the cancellation or surrender of any lease, or permit
any tenant under any lease to assign or sublet its rights thereunder. Further,
Lender specifically reserves the right to approve the form and content of
all
leases, all proposed tenants, and any assignee or sublessee of any existing
tenant. Mortgagor shall deliver to Lender a rent roll for the Premises, in
form
and detail satisfactory to Lender, at such times as Lender may request, together
with a copy of all leases, rental agreements and occupancy agreements with
respect to the Premises. Mortgagor shall not collect any rent under any leases,
rental agreements or other occupancy agreements pertaining to the Premises
more
than one month in advance, except for security deposits not to exceed two
months
rent which are deposited in a segregated account at Lender and held and
maintained by Mortgagor in full compliance with all applicable laws. The
rights
of all tenants and other occupants of the Premises must at all times be fully
subordinate to the terms of this Mortgage and the other Loan
Documents.
Section
1.20. Reappraisal
Provisions.
Lender
may obtain, at Mortgagor’s expense upon Lender’s reasonable determination that
an updated appraisal is appropriate (including, without limitation, to comply
with any regulatory requirements applicable to Lender), but in no event more
frequently than once every two calendar years, an appraisal of the Premises
or
any part thereof prepared by a third-party appraiser engaged directly by
Lender
in accordance with written instructions from Lender. Each such appraiser
and
appraisal shall be satisfactory to Lender (including satisfaction of applicable
regulatory requirements). Mortgagor shall cooperate fully with any such
appraiser and provide all such documents and information as such appraiser
may
request in connection with the appraiser’s performance and preparation of such
appraisal. The cost of each such appraisal shall be due and payable by Mortgagor
on demand and shall be secured by this Mortgage and the other Loan Documents.
Mortgagor acknowledges that Lender was induced to enter into the subject
loan
transaction based upon a specific loan-to-value ratio (the “Original
Loan-to-Value Ratio”)
calculated by dividing the aggregate principal amount of the Note by the
appraised value (the “Original
Appraised Value”)
of the
Premises set forth in the appraisal Mortgagor submitted to Lender prior to
the
execution of this Mortgage. If any updated appraisal received by Lender pursuant
to this Section reflects that the appraised value of the Premises has decreased
from the Original Appraised Value and if such decrease results in a loan
to-value
ratio which is higher than the Original Loan-to-Value Ratio, Mortgagor shall
within ten (10) days of Lender’s written request make a principal payment (the
“Prepayment”)
under
the Note in an amount sufficient to maintain the Original Loan-to-Value Ratio.
Such Prepayment shall not entitle Mortgagor to a release of any of the Premises.
Mortgagor’s failure to promptly and fully comply with Lender’s requirements
under this Section 1.21 shall, without further notice, constitute an Event
of
Default under this Mortgage.
-15-
Section
1.21. Loan
Documents; Partial Releases.
Mortgagor hereby agrees to comply with all provisions of the Loan Documents.
All
advances of Lender made pursuant to the Loan Documents, all costs and expenses
incurred by Lender under the Loan Documents, and all obligations of Mortgagor
under and in connection with the Loan Documents shall be secured
hereby.
Section
1.22. Section
697.07 of the Florida Statutes.
Mortgagor agrees that the assignment of leases and rents contained in this
Mortgage is intended shall provide Lender with all the rights and remedies
of
mortgagees pursuant to Section 697.07 of the Florida Statutes (hereinafter
“Section
697.07”),
as it
may be amended from time to time. However, in no event shall this reference
diminish, alter, impair, or affect any other rights and remedies of Lender,
including but not limited to, the appointment of a receiver as provided in
this
Mortgage or any rights or powers of the receiver in law or equity or as
otherwise provided in this Mortgage. In addition, the assignment of leases
and
rents in this Mortgage shall be fully operative without regard to value of
the
Premises and without regard to the adequacy of the Premises to serve as security
for the obligations owed by Mortgagor to Lender and shall be in addition
to any
rights arising under Section 697.07. Further, except for the notices expressly
required under this Mortgage, if any, Mortgagor to the fullest extent allowed
by
law Mortgagor waives any notice of default or demand for turnover of rents
by
Lender, together with any rights under Section 697.07 to apply to a court
to
deposit the rents into the registry of the court or such other depository
as the
court may designate.
Section
1.23. Condominium
Provisions.
Mortgagor shall not submit any of the Land to a declaration of condominium
without the prior written consent of Lender. However, if a declaration of
condominium is recorded against the Land or any portion thereof with the
prior
written consent of Lender, (a) Mortgagor shall abide by all of the terms,
covenants and restrictions contained in the declaration of condominium, bylaws,
rules and regulations, and all other condominium documents, and all licenses,
use agreements and other documents pertaining to the use of any recreational
facilities or common areas, (b) Mortgagor shall promptly pay, when due, all
assessments imposed by any condominium association or other governing body
of
the condominium documents, (c) Mortgagor shall not, without the prior written
consent of Lender, partition or subdivide the Land or consent to or otherwise
allow the abandonment or termination of the condominium or any amendment
of the
declaration of condominium, bylaws, rules or regulations, license, agreement
or
other document pertaining to the condominium, and (d) Mortgagor shall fully
comply with all obligations applicable to Mortgagor as the developer of the
condominium imposed by federal, state or local law.
-16-
ARTICLE
II
Section
2.1. Event
of Default.
The
phrase “Event
of Default”,
wherever used in this Mortgage, shall mean and include any one or more of
the
following events:
(a) Failure
by Borrower or Mortgagor to pay, as and when due and payable, any installments
of principal and/or interest under the Note or other Loan Documents or any
required deposits for taxes, assessments, insurance premiums, and other similar
charges, or any other portion of the indebtedness secured hereby within ten
(10)
days of when due; or
(b) Failure
by Mortgagor to duly keep, observe and perform any other covenant, condition
or
agreement of this Mortgage to be kept or performed by Mortgagor and the
continuance of such failure for thirty (30) days after written notice by
Lender
to Mortgagor of such occurrence;
(c) Failure
by Mortgagor duly to observe or perform any term, covenant, condition or
agreement in any other documents now or hereafter evidencing, securing or
otherwise relating to the Note, this Mortgage or the indebtedness secured
hereby
(including, without limitation, the Environmental Agreement, and an Assignment
of Leases, Rents and Profits of even date herewith, as such documents may
be
modified and amended from time to time, and all other Loan Documents) which
is
not remedied within thirty (30) days written notice by Lender to Mortgagor
of
any such occurrence. If Mortgagor cannot cure within thirty (30) days but
is
diligently pursuing cure, then time shall be tolled for an additional thirty
(30) day period; or
(d) The
occurrence of a default or event of default under any of the Loan Documents
which is not remedied within the cure period, if any, provided with respect
thereto; or
(e) Any
representation or warranty of Mortgagor contained in this Mortgage or in
any of
the other Loan Documents or any representation or warranty of any Mortgagor
or
other party in any of the Loan Documents or otherwise in connection with
the
indebtedness evidenced by the Note or any other notes executed pursuant to
Section 1.18 hereof proves to be untrue or misleading in any material respect;
or
(f) Mortgagor
shall (i) have an order entered for relief with respect to it under the Federal
Bankruptcy Code or any other law pertaining to bankruptcy, insolvency or
debtor
relief, whether now or hereafter existing and whether Federal, state or foreign,
(ii) not pay, or admit in writing its inability to pay, its debts generally
as
they become due, (iii) make an assignment for the benefit of creditors, (iv)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial part of its property, (v) institute any proceeding seeking the
entry
of any order for relief under the Federal Bankruptcy Code or any other law
pertaining to bankruptcy, insolvency or debtor relief, whether now or hereafter
existing and whether Federal, state or foreign, to adjudicate it a bankrupt
or
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to
bankruptcy, insolvency or reorganization or relief of debtors or fail to
file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (vi) take any action to authorize or effect any of the
foregoing actions set forth in this subsection (g), or (vii) fail to
contest in good faith any appointment or proceeding described in subsection
(h)
below; or
-17-
(g) Without
the application, approval or consent of Mortgagor, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for Mortgagor
or any
substantial part of its property, or a proceeding described in subsection
(f)
shall be instituted against Mortgagor and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days; or
(h) Mortgagor
shall sell, transfer, convey, mortgage, encumber, lease or otherwise dispose
of
the Premises or any part thereof or any interest therein or engage in financing
with respect thereto in violation of the provisions of this Mortgage or
Mortgagor, or any managing member of Mortgagor (if a corporation) is liquidated
or dissolved or its charter expires or is revoked or its ownership or control
changes in violation of Section 1.16 above, or Mortgagor or any such managing
member (if a partnership or business association) is dissolved or partitioned,
or a general partner withdraws, resigns or is removed, or the interest of
a
general partner therein is sold, transferred, disposed of or encumbered in
violation of Section 1.16 above; or
(i) The
institution of foreclosure or other proceedings to enforce any mortgage,
security interest, lien or encumbrance of any kind on the Premises or any
portion thereof, whether superior or subordinate to this Mortgage (provided,
that the foregoing shall not be deemed to constitute Lender’s consent to any
mortgage, security interest, lien or encumbrance on the Premises which is
otherwise prohibited by this Mortgage); or
(j) The
occurrence of any event or circumstance which pursuant to the terms of this
Mortgage or any of the other Loan Documents is stated to be an Event of Default
under this Mortgage; or
(k) The
occurrence of any material adverse change in the financial condition of
Mortgagor.
Section
2.2. Lender’s
Rights, Acceleration, Foreclosure and Sale.
Upon
the occurrence of any Event of Default (after the giving of notice and the
expiration of any applicable cure period that is expressly required in Section
2.1 above), then the whole of the indebtedness secured hereby shall, at the
option of Lender, without notice or demand, become immediately due and payable
for all purposes, time being of the essence of this Mortgage, anything in
the
Note, this Mortgage or any of the other Loan Documents to the contrary
notwithstanding, and, thereupon, or at any time during the existence of any
Event of Default, Lender may proceed by suit or suits at law or in equity
or by
any other appropriate proceeding or remedy to (a) enforce the payment of
the Note or the performance by Mortgagor of any other term or provision of
the
Note or any of the Loan Documents or enforce any other rights possessed by
Lender, (b) foreclose this Mortgage by judicial proceedings, and/or (c)
pursue any other right or remedy available to Lender. Any failure of Lender
to
exercise any of said options shall not constitute a waiver
of
the right to exercise the same at any other time; and all of the rights and
remedies of Lender shall be cumulative.
-18-
Section
2.3. Right
of Lender to Enter and Take Possession.
(a) If
an
Event of Default shall have occurred, Mortgagor, upon demand of Lender, shall
forthwith surrender to Lender the actual possession of the Premises, and
Lender
may (by itself or through a receiver) enter and take possession of the Premises
and may exclude Mortgagor and Mortgagor’s agents and employees wholly
therefrom.
(b) Upon
every such entering and taking of possession, Lender may hold, store, use,
operate, manage, control, and maintain the Premises and conduct the business
thereof, and, from time to time, (i) make or perform construction, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty
and
other property; (ii) insure or keep the Premises insured; (iii) manage and
operate the Premises and exercise all the rights and powers of Mortgagor
in its
name or otherwise with respect to the same and (iv) enter into any and all
agreements with respect to the exercise by others of any of the powers herein
granted Lender, all as Lender may from time to time determine to be to its
best
interest. Lender may collect and receive all of the income, rents, profits,
issues and revenues of the Premises, including the past due as well as those
accruing thereafter, and Lender may apply any moneys and proceeds received
by
Lender, in such order and priority as Lender in its sole discretion may
determine, to (1) all expenses of taking, holding, managing and operating
the
Premises (including compensation for the services of all persons employed
for
such purposes); (2) the cost of all such construction, maintenance, repairs,
renewals, replacements, additions, betterments, improvements, purchases,
and
acquisitions; (3) the cost of such insurance; (4) such taxes, assessments
and
other charges as Lender may determine to pay; (5) other proper charges upon
the
Premises or any part thereof; (6) the reasonable compensation and expenses
of attorneys and agents of Lender; (7) accrued interest; (8) deposits for
taxes,
insurance and similar items required hereunder; (9) principal; and/or (10)
any
other sums that may be due and payable to Lender under or pursuant to any
of the
Loan Documents.
(c) For
the
purpose of carrying out the provisions of this Section 2.3, Mortgagor hereby
constitutes and appoints Lender the true and lawful attorney-in-fact of
Mortgagor to do and perform, from time to time, any and all actions necessary
and incidental to such purpose and does, by these presents, ratify and confirm
any and all actions of said attorney-in-fact in the Premises.
(d) If
Lender
shall surrender possession of the Premises to Mortgagor as a result of the
acceptance by Lender of any cure of any Event of Default, the right of Lender
to
thereafter take possession, from time to time, pursuant to this Section shall
exist if any subsequent Event of Default shall occur.
Section
2.4. Appointment
of a Receiver.
(a) If
an
Event of Default shall have occurred, Lender shall be entitled, upon notice
to
Mortgagor but without regard to the adequacy of any security for the
indebtedness hereby
secured or the solvency of any party bound for its payment, upon ex-parte
application to the appointment of a receiver to take possession of and to
operate the Premises and to collect the rents, profits, issues, and revenues
thereof and such receiver shall have all the powers of Mortgagor, including,
without limitation, those powers set forth in Section 2.3(b) above. Mortgagor
hereby specifically waives the right to object to the appointment of a receiver
and hereby expressly agrees that such appointment shall be made as an admitted
equity and as a matter of absolute right to Lender.
-19-
(b) Mortgagor
will pay to Lender upon demand all expenses and costs, including receiver’s
fees, reasonable attorneys’ fees, legal costs and agent’s compensation, incurred
pursuant to the provisions contained in this Section, and all such expenses
shall be secured by this Mortgage.
Section
2.5. Discontinuance
of Proceedings and Restoration of Status of the Parties.
In case
Lender shall have proceeded to enforce any right or remedy under this Mortgage
by receiver, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to Lender, then and in every such case Mortgagor and Lender shall be restored
to
their former positions and rights hereunder, and all rights, powers and remedies
of Lender shall continue as if no such proceeding had been taken.
Section
2.6. Remedies
Cumulative.
No
right, power or remedy conferred upon or reserved to Lender by this Mortgage
or
any of the Loan Documents is intended to be exclusive of any other right,
power
or remedy, but each and every such right, power and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and remedy
given hereunder or now or hereafter existing at law or in equity or by
statute.
Section
2.7. Performance
by Lender of Defaults by Mortgagor.
If
Mortgagor shall default in the payment of any tax, lien, assessment or other
charge levied or assessed against the Premises (unless the same has been
transferred to bond); in the payment of any utility charge, whether public
or
private; in the payment of any insurance premium; in the procurement of
insurance coverage and the delivery of the insurance policies required
hereunder; in the performance of any obligations of Mortgagor under any leases
affecting the Premises; or in the performance or observance of any other
covenant, condition or term of this Mortgage or any of the other Loan Documents,
then Lender, at its option, may perform or observe the same, and all payments
made for costs or expenses incurred by Lender in connection therewith shall
be
secured hereby and shall be, without demand, immediately repaid by Mortgagor
to
Lender with interest at the Default Rate provided in the Note. Lender shall
be
the sole judge of the legality, validity and priority of any such tax, lien,
assessment, charge, claim, premium or obligation; of the necessity for any
such
actions; and of the amount necessary to be paid in satisfaction thereof.
Lender
is hereby empowered to enter and to authorize others to enter upon the Premises
or any part thereof, for the purpose of performing or observing any such
defaulted covenant, condition or term, or exercising Lender’s rights hereunder,
without thereby becoming liable to Mortgagor or any person in possession
holding
under Mortgagor. In order to accelerate the maturity of the indebtedness
secured
hereby because of the failure of Mortgagor to pay any taxes, lien, assessment,
charge, premium, rent or other sums, liabilities or obligations as herein
provided, it shall not be necessary nor requisite that Lender shall first
pay
the same, nor shall Lender’s payment of the same constitute a waiver of the
default hereunder or otherwise affect Lender’s option
to
accelerate the indebtedness secured hereby, foreclose this Mortgage and/or
exercise any other right or remedy provided hereunder or under any of the
Loan
Documents.
-20-
Section
2.8. Expenses.
In any
suit to foreclose the lien of this Mortgage or enforce any other remedy of
Lender under this Mortgage, the Note or any of the other Loan Documents,
there
shall be allowed and included, as additional indebtedness in the judgment
or
decree, all expenditures and expenses which may be paid or incurred by or
on
behalf of Lender, including without limitation, those incurred for attorneys’
fees, documentary and expert evidence, stenographers’ charges, publication
costs, survey costs, and costs (which may be estimated as to items to be
expended after entry of the decree) of procuring all abstracts of title,
title
searches and examinations, title insurance policies, and similar data and
assurances with respect to title as Lender may deem reasonably necessary
either
to prosecute such suit or to evidence to bidders at any sale which may be
had
pursuant to such decree the true condition of the title to or value of the
Premises. All such expenditures and expenses and all expenses and fees as
may be
incurred in the protection of said Premises and the maintenance of the lien
of
this Mortgage or the enforcement of Lender’s rights or remedies hereunder or
under any of the other Loan Documents, including without limitation, the
reasonable fees of any attorneys employed by Lender in any litigation or
proceeding affecting this Mortgage, the Note or the Premises, in the exercise
of
any rights or remedies, or in preparation for the commencement or defense
of any
proceeding or threatened suit or proceeding, and whether at the pre-trial,
trial
or any appellate level, shall be immediately due and payable by Mortgagor,
with
interest thereon at the Default Rate provided in the Note and shall be secured
by this Mortgage.
Section
2.9. Sale
of Separate Parcels.
Waiver
of Marshalling. In the event of any foreclosure sale of the Premises, the
same
may be sold in one or more parcels, and Lender may be the purchaser at any
foreclosure of the Premises or any part thereof. Mortgagor for itself and
all
who may claim through or under Mortgagor, waives any and all right to have
the
property and estate comprising the Premises marshaled upon any foreclosure
of
the lien hereof, and Lender or any court having jurisdiction to foreclose
said
lien may sell the Premises in part or as an entirety.
ARTICLE
III
Section
3.1. Waivers;
Remedies Cumulative; Etc.
No
waiver of any default in the performance of any covenant contained herein
or in
any obligation secured hereby shall at any time thereafter be held to be
a
waiver of any rights of the holder of the Note hereunder or under any of
the
Loan Documents, nor shall any waiver of a prior default operate to waive
any
subsequent default or defaults. All remedies provided for herein and in the
Note
and in the Loan Documents are cumulative and may, at the election of the
holder
of the Note, be exercised alternatively, successively or in any other manner
and
are in addition to any other rights provided by law or in equity.
Section
3.2. Headings.
The
headings of the sections, paragraphs and subdivisions of this Mortgage are
for
the convenience of reference only, are not to be considered a part hereof,
and
shall not limit or otherwise affect any of the terms hereof
Section
3.3. Invalid
Provisions to Affect No Others.
It is
agreed that nothing herein contained nor any transaction related thereto
shall
be construed or so operate as to require Mortgagor
to pay interest at a rate greater than it is lawful in such case to contract
for, or to make any payment or to do any act contrary to law. If the fulfillment
of any provision hereof or any transaction related hereto or to the Note,
at the
time performance of such provisions shall be due, shall involve transcending
the
limit of validity prescribed by law, then ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity; and if any clause
or
provision herein contained operates or would prospectively operate to invalidate
this Mortgage in whole or in part, then such clause or provision only shall
be
held for naught, as though not herein contained, and the remainder of this
Mortgage shall remain operative and in full force and effect.
-21-
Section
3.4. Number
and Gender, Construction.
Whenever the singular or plural number, masculine or feminine or neuter gender
is used herein, it shall equally include the others, as appropriate. Use
of the
terms “hereof’, “herein”, “hereunder” or words of similar import in this
Mortgage shall refer to this Mortgage as a whole and not to any particular
Section or provision of this Mortgage unless otherwise expressly provided.
Use
of the term “person” in this Mortgage shall refer to and mean any natural
person, entity, corporation, association, firm, partnership or governmental
authority.
Section
3.5. Changes.
Neither
this Mortgage nor any term hereof may be waived, changed, discharged or
terminated except by an instrument in writing signed by the party against
which
enforcement of the change, waiver, discharge or termination is
sought.
Section
3.6. Governing
Law and Construction.
This
Mortgage and the Note secured hereby shall be governed by, and construed
and
enforced in accordance with, internal laws (and not the law of conflicts)
of the
State of Florida.
Section
3.7. Greater
Estate.
In the
event that prior to the satisfaction of the indebtedness and the cancellation
of
this Mortgage of record, Mortgagor obtains a fee estate to such portion of
the
Land in which Mortgagor presently holds only a leasehold interest, then such
fee
estate shall automatically, and without further action of any kind on the
part
of Mortgagor, be and become subject to the lien of this Mortgage.
Section
3.8. Notice.
Except
as otherwise contemplated herein or required by statute, all notices, demands
and other communications which are permitted or required under this Mortgage
shall be in writing and signed by the party giving the same, and shall be
delivered personally, sent by overnight courier, or sent by certified or
registered United States mail, return receipt requested, postage prepaid,
to the
other party at the address set forth below:
|
To
Mortgagor:
|
Costa
Xxxxxx XX Real Estate, LLC
Xxxxx
Xxxxxx III Real Estate, LLC
TDS
Town Homes (Phase 1), LLC
TDS
Town Homes (Phase 2), LLC
0000
Xxxx Xxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxx
|
-22-
|
To
Lender:
|
Resorts
Funding Group, LLC
0000
Xxxx Xxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx
|
or
to
such other address within the continental United States as may be from time
to
time designated by the parties. Each such notice or communication shall be
deemed to have been given on the date of personal delivery, upon receipt
if sent
by overnight courier or three (3) days after the date of mailing, as the
case
may be.
Section
3.9. Time
is of the Essence.
It is
specifically agreed that time is of the essence of the performance by Mortgagor
of the obligations of Mortgagor under this Mortgage.
Section
3.10. Binding
on Successors and Assigns.
This
Mortgage and all provisions hereof shall extend to and be binding upon Mortgagor
and all persons claiming under or through Mortgagor, and the word “Mortgagor”
when
used herein shall include all such persons and all persons liable for the
payment of the indebtedness or any part thereof, whether or not such persons
shall have executed the Note or this Mortgage. The word “Lender”
when
used herein shall include the successors and assigns of Lender named
herein.
Section
3.11. WAIVER
OF RIGHT TO JURY TRIAL.
MORTGAGOR AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE
RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON THE NOTE,
THIS
MORTGAGE, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY COURSE OF DEALING, COURSE
OF
CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF MORTGAGOR
OR
LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER EXTENDING CREDIT
TO
MORTGAGOR.
[Signatures
on the following pages]
-23-
IN
WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly as of the
day and
year first above written.
|
EXECUTED
IN THE PRESENCE OF:
/s/
Xxxxx Xxxxxxxx
(Signature)
Xxxxx
Xxxxxxxx
(Printed
Name)
/s/
Xxxxxxx Xxxxxxx
(Signature)
Xxxxxxx
Xxxxxxx
(Printed
Name)
|
COSTA
XXXXXX XX REAL ESTATE, LLC, a Florida limited liability
company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
|
/s/
Xxxxx Xxxxxxxx
(Signature)
Xxxxx
Xxxxxxxx
(Printed
Name)
/s/
Xxxxxxx Xxxxxxx
(Signature)
Xxxxxxx
Xxxxxxx
(Printed
Name)
|
XXXXX
XXXXXX III REAL ESTATE, LLC, a Florida limited liability
company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
-24-
|
/s/
Xxxxx Xxxxxxxx
(Signature)
Xxxxx
Xxxxxxxx
(Printed
Name)
/s/
Xxxxxxx Xxxxxxx
(Signature)
Xxxxxxx
Xxxxxxx
(Printed
Name)
|
TDS
TOWN HOMES (PHASE 1), LLC, a Florida limited liability
company
By:
Tierra del Sol Resort (Phase 1), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
|
/s/
Xxxxx Xxxxxxxx
(Signature)
Xxxxx
Xxxxxxxx
(Printed
Name)
/s/
Xxxxxxx Xxxxxxx
(Signature)
Xxxxxxx
Xxxxxxx
(Printed
Name)
|
TDS
TOWN HOMES (PHASE 2), LLC, a Florida limited liability
company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
-25-
|
STATE
OF FLORIDA
COUNTY
OF ORANGE
|
||
|
The
foregoing instrument was acknowledged before me this 23rd day of
April
2007, by Xxxxxxx X. Xxxxxx, as Manager of TDS MANAGEMENT, LLC,
a Florida
limited liability company, the General Partner of TIERRA DEL SOL
RESORT
(PHASE 2), LTD., a Florida limited partnership, the Manager of
COSTA
XXXXXX XX REAL ESTATE, LLC, a Florida limited liability company,
on behalf
of the corporation, who is personally known to me or has produced
___________ (state) driver’s license or
as
identification.
|
||
|
My
Commission Expires:
(AFFIX
NOTARY SEAL)
|
/s/
Xxxxx Xxxxx
Notary
Public (Signature)
Xxxxx
Xxxxx
(Printed
Name)
|
|
|
STATE
OF FLORIDA
COUNTY
OF ORANGE
|
||
|
The
foregoing instrument was acknowledged before me this 23rd day of
April
2007, by Xxxxxxx X. Xxxxxx, as Manager of TDS MANAGEMENT, LLC,
a Florida
limited liability company, the General Partner of TIERRA DEL SOL
RESORT
(PHASE 2), LTD., a Florida limited partnership, the Manager of
XXXXX
XXXXXX III REAL ESTATE, LLC, a Florida limited liability company,
on
behalf of the corporation, who is personally known to me or has
produced
___________ (state) driver’s license or
as
identification.
|
||
|
My
Commission Expires:
(AFFIX
NOTARY SEAL)
|
/s/
Xxxxx Xxxxx
Notary
Public (Signature)
Xxxxx
Xxxxx
(Printed
Name)
|
|
-26-
|
STATE
OF FLORIDA
COUNTY
OF ORANGE
|
||
|
The
foregoing instrument was acknowledged before me this 23rd day of
April
2007, by Xxxxxxx X. Xxxxxx, as Manager of TDS MANAGEMENT, LLC,
a Florida
limited liability company, the General Partner of TIERRA DEL SOL
RESORT
(PHASE 1), LTD., a Florida limited partnership, the Manager of
TDS TOWN
HOMES (PHASE 1), LLC, a Florida limited liability company, on behalf
of
the corporation, who is personally known to me or has produced
___________
(state) driver’s license or
as
identification.
|
||
|
My
Commission Expires:
(AFFIX
NOTARY SEAL)
|
/s/
Xxxxx Xxxxx
Notary
Public (Signature)
Xxxxx
Xxxxx
(Printed
Name)
|
|
|
STATE
OF FLORIDA
COUNTY
OF ORANGE
|
||
|
The
foregoing instrument was acknowledged before me this 23rd day of
April
2007, by Xxxxxxx X. Xxxxxx, as Manager of TDS MANAGEMENT, LLC,
a Florida
limited liability company, the General Partner of TIERRA DEL SOL
RESORT
(PHASE 2), LTD., a Florida limited partnership, the Manager of
TDS TOWN
HOMES (PHASE 2), LLC, a Florida limited liability company, on behalf
of
the corporation, who is personally known to me or has produced
___________
(state) driver’s license or
as
identification.
|
||
|
My
Commission Expires:
(AFFIX
NOTARY SEAL)
|
/s/
Xxxxx Xxxxx
Notary
Public (Signature)
Xxxxx
Xxxxx
(Printed
Name)
|
|
-27-
EXHIBIT
A
LEGAL
DESCRIPTION
Tracts
XX-0 X, XX-0 X, XX-0 A, XX-0 X, XX-0 X0, XX-0 X0, XX-0 D, TH-2 F, TH-2 G,
TH-2 H
and TH-2 K, TIERRA DEL SOL, according to the Plat thereof, as recorded in
Plat
Book 144, Pages 31 through 38, inclusive, of the public records of Polk County,
Florida.
A-1
EXHIBIT
B
PERMITTED
EXCEPTIONS
1. Notice
of
Establishment of the Westridge Community Development District as set forth
in
instrument recorded in Book 5524, Page 369 .
2. Declaration
of Consent to Jurisdiction of Community Development District and to Imposition
of Special Assessments as set forth in instrument recorded in Book 6572,
Page 385 .
3. Grant
of
Temporary Access and Construction easement granted to Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx Xxxxxxxx by Tierra Del Sol Resort, Inc., a Florida corporation,
dated December 21, 2005 and recorded January 4, 2006 in Book 6572,
Page 395.
4. Terms
and
conditions of Declaration of Easements as set forth in instrument recorded
in Book 6572, Page 586 as corrected in the Corrective Declaration of
Easements, dated December 21, 2005, and recorded July 5, 2006 in Book 6855,
Page
1241 .
5. Terms
and
conditions of Declaration of Easements as set forth in instrument recorded
in Book 6585, Page 863 .
6. Declaration
Of Covenants, Restrictions And Easements recorded in Official Records Book
7253,
at Page 1901.
7. Mortgage
and Security Agreement made by TDS Town Homes (Phase 1), LLC, a Florida limited
liability company, TDS Town Homes (Phase 2), LLC, a Florida limited liability
company, Costa Xxxxxx XX Real Estate, LLC, a Florida limited liability company,
Xxxxx Xxxxxx III Real Estate, LLC, a Florida limited liability company, and
TDS
Amenities, Inc., a Florida corporation, jointly and severally, as Mortgagor,
to
Xxxxxxx Funding, Inc., a New Jersey corporation, as Mortgagee, dated April
20,
2007 and recorded April 24, 2007 in Official Records Book 7259, Page
1.
8. Assignment
of Leases and Rents by TDS Town Homes (Phase 1), LLC, a Florida limited
liability company, TDS Town Homes (Phase 2), LLC, a Florida limited liability
company, Costa Xxxxxx XX Real Estate, LLC, a Florida limited liability company,
Xxxxx Xxxxxx III Real Estate, LLC, a Florida limited liability company, and
TDS
Amenities, Inc., a Florida corporation, jointly and severally, as Assignor,
to
Xxxxxxx Funding, Inc., a New Jersey corporation, as Assignee, dated April
20,
2007 and recorded April 24, 2007 in Official Records Book 7259, Page
98.
9. UCC-1
Financing Statement by TDS Town Homes (Phase 1), LLC, a Florida limited
liability company, TDS Town Homes (Phase 2), LLC, a Florida limited liability
company, Costa Xxxxxx XX Real Estate, LLC, a Florida limited liability company,
Xxxxx Xxxxxx III Real Estate, LLC, a Florida limited liability company, and
TDS
Amenities, Inc., a Florida corporation, jointly and severally, as Debtor,
to
Xxxxxxx Funding, Inc., a New Jersey corporation, as Secured Party, recorded
April 24, 2007 in Official Records Book 7259, Page 130.
B-1
