Prepared by:
Xxxxxxx X. Xxxxxxx, Xx., of
SHELL, FLEMING, XXXXX & XXXXX
000 Xxxxxxx Xxxxx
Xxxxxxx Tower, Ninth Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000-0000
SFD&M File No.: X0-00000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX MORTGAGE AND SECURITY AGREEMENT
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THIS INDENTURE is made and executed as of the 21st day of May, 1998, by
HOME STAY LODGE I, LTD., a Florida limited partnership, ("Mortgagor"), to BANK
OF PENSACOLA with its principal office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx 00000, as mortgagee ("Lender").
W I T N E S S E T H:
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WHEREAS, Lender has agreed to make a loan to Mortgagor in the principal
amount of Five Million Four Hundred Twenty Thousand Dollars ($5,420,000.00) (the
"Loan");
WHEREAS, the Loan is evidenced by a Promissory Note (the "Note") of
even date herewith from Mortgagor to Lender in the original principal amount of
$5,420,000.00;
WHEREAS, Lender will not make the Loan unless Mortgagor gives to Lender
this Mortgage as security for the Note and related loan documents;
NOW, THEREFORE, for and in consideration of the Loan and to secure the
prompt payment of the Note, with interest thereon, and any and all extensions,
renewals, replacements, consolidations and modifications thereof, and further to
secure the punctual performance of all covenants, conditions and agreements set
forth herein or in the other instruments securing the Note, Mortgagor does
hereby irrevocably grant, bargain, sell, alien, remise, release, confirm,
pledge, assign, transfer and convey to Lender, its successors and assigns, the
following described property (all of which as described in (A) through (F) below
is referred to herein as the "Mortgaged Property"):
A. Those two parcels of land (the "Property") situated and lying in
Escambia County, Florida, and described in Exhibit "A" attached hereto and
incorporated herein by reference.
B. All structures, buildings, improvements, sewage and utility lines
and equipment, appurtenances and fixtures of every nature whatsoever now or
hereafter situated in, on, above or under the Property (the "Improvements");
C. All building materials, equipment, fixtures and fittings of every
kind or character now owned or hereafter acquired by the Mortgagor for the
purpose of being used or useful in the construction of the Improvements located
or to be located on the Property, whether such materials, equipment, fixtures
and fittings are actually located on or adjacent to the Property or not, and
whether in storage or otherwise, wheresoever the same may be located, including
without limitation all lumber and lumber products, bricks, building stones and
building blocks, sand and cement, roofing material, paint, doors, windows,
hardware, nails, wires and wiring, plumbing and plumbing fixtures, sewer lines
and pumping stations and fixtures and equipment, heating and air-conditioning
equipment and appliances, electrical and gas equipment and appliances, pipes and
piping, ornamental and decorative fixtures, furniture, ranges, refrigerators,
dishwashers and disposals;
D. All fixtures, appliances, machinery, furniture, furnishings,
apparatus, equipment and other articles of personal property of any nature
whatsoever owned by Mortgagor now or at any time hereafter and now or hereafter
installed in, attached to or situated in or upon the Property or the
Improvements, or used or intended to be used in connection with the Property or
in the operation, occupancy, use, maintenance or enjoyment of any of the
Improvements now or hereafter erected thereon or relating or appertaining
thereto, whether or not such personal property is or shall be affixed thereto,
including without limitation all furniture, furnishings, apparatus, machinery,
motors, elevators, fittings, radiators, ranges, ovens, ice boxes, refrigerators,
awnings, shades, screens, blinds, office equipment, carpeting and other
furnishings, and all plumbing, heating, lighting, cooking, laundry, ventilating,
refrigerating, incinerating, air-conditioning and sprinkler equipment and
fixtures and appurtenances thereto; and all proceeds thereof (including without
limitation condemnation awards and insurance proceeds), all extensions,
betterments and accessions thereto, all renewals and replacements thereof and
all articles in substitution therefor, whether or not the same are or shall be
attached to the Property or Improvements in any manner; it being mutually agreed
that all the aforesaid property shall, so far as permitted by law, be deemed to
be fixtures and a part of the Property, and as to the balance of said Property,
this Mortgage is hereby deemed to be as well a Security Agreement for the
purpose of creating a security interest in said property and securing the Loan
for the benefit of Lender;
E. All easements, rights-of-way, gores of land, vaults, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers,
riparian rights, water stock, development rights, air rights, public places, and
all estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating to or
appertaining to the Property, 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 and remainder and
remainders thereof, and all rents, royalties, issues, profits, revenues and
income with respect to the Property (including without limitation all
condemnation awards, insurance proceeds, payments under leases and tenancies,
sale proceeds, purchase deposits, tenant security deposits, escrow funds, and
all proceeds, claims, causes of action and recoveries arising on account of any
damage to or taking of, or for any loss or diminution in the value of, the
Property or any Improvements, or any part thereof or interest therein), 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;
and
F. All right, title and interest of Mortgagor in, to and under any and
all sales contracts now existing or hereafter entered into with respect to the
sale of any portion of the Mortgaged Property or any interest therein, together
with Mortgagor's entire right, title and interest with respect to any and all
xxxxxxx money deposits related to such contracts.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof,
together with all rights, privileges and appurtenances thereunto belonging, unto
the Lender, its successors and assigns, forever, subject however to the terms
and conditions herein.
ARTICLE I.
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COVENANTS AND AGREEMENTS OF MORTGAGOR
-------------------------------------
1.01 SECURED OBLIGATIONS. This instrument secures:
-------------------
(a) The payment and performance of the Mortgagor's indebtedness and
obligations tinder the Note, including all extensions, renewals, consolidations
and modifications of the Note.
(b) The payment and performance of the Mortgagor's obligations under
this Mortgage.
(c) The payment of all sums advanced or paid out by the Lender under
any provision of this Mortgage or to protect the security of this Mortgage.
(d) The payment of the principal and interest on all other or future
loans or advances made by the Lender, at Lender's option, to the Mortgagor (or
any successor in interest to the Mortgagor as the owner of all or any part of
tile Mortgaged Property), when the promissory note evidencing the loan or
advance specifically states that it is secured by the Mortgage ("Future
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Advances"), including all extensions, renewals and modifications of any Future
Advances, provided that such Future Advances are made within twenty (20) years
from the date of this Mortgage or within such lesser period of time as may be
hereafter provided by law as a prerequisite for the sufficiency of actual notice
or record notice of such optional Future Advances as against the rights of
creditors or subsequent purchasers for a valuable consideration, although there
may be no advance made at the time of the execution of this Mortgage and
although there may be no indebtedness outstanding at the time any Future Advance
is made. It is intended that the lien of this Mortgage shall be valid as to all
such indebtedness and Future Advances from the time this Mortgage is filed for
record. The total amount of indebtedness that may be secured by this Mortgage
may decrease or increase from time to time, provided, however, that the total
unpaid balance secured at any time shall not exceed a maximum principal amount
of $7,500,000.00 plus interest thereon, and any disbursements made by Lender for
the payment of taxes, levies or insurance on the property covered by this
Mortgage, together with interest thereon, plus reasonable attorney's fees and
court costs incurred in the collection of any or all of said sums of money. To
the extent that this Mortgage may secure more than one note, a default in the
payment of one note shall constitute a default in the payment of all other
notes. However, this provision as to Future Advances shall not be construed to
obligate Lender to make any additional advances or loans.
(e) The payment and performance of the Mortgagor's obligations under
the Loan Agreement and other Loan Documents (as defined in the Note) and under
all other present and future agreements executed by the Mortgagor in favor of
the Lender and relating to the Loan.
1.02 WARRANTY OF TITLE. Mortgagor warrants that it is presently seized
-----------------
and possessed of an unencumbered, indefeasible fee simple estate in the
Property, free and clear of all liens, claims and encumbrances and subject only
to the exceptions, if any, listed in Exhibit "B" attached hereto and
incorporated herein by reference; that it has good right, full power and lawful
authority to sell, convey, hypothecate and encumber the Mortgaged Property; and
that it owns the personal property and fixtures subject to this Mortgage free
and clear of all liens, encumbrances, claims charges, conditional sales
contracts, chattel mortgages, security agreements, financing statements and
anything of a similar nature. Further, Mortgagor warrants that it shall preserve
such title to the Mortgaged Property and shall forever warrant and defend the
same unto Lender and its successors and assigns against the claims of all
persons and parties whomsoever.
1.03 ASSIGNMENT OF RENTS.
--------------------
(a) All of the existing and future rents, royalties, income, profits,
issues, revenues and accounts of or related to the Mortgaged Property that arise
from its use or occupancy are hereby absolutely and presently assigned to the
Lender. Upon the occurrence of any Event of Default under this Mortgage, Lender
may in its discretion at any time without notice to the Mortgagor collect the
rents, royalties, income, profits, issues, revenues and accounts itself or by an
agent or receiver. Mortgagor hereby authorizes and directs all lessees,
sublessees and occupants of the Mortgaged Property or any part thereof to pay
any and all amounts due Mortgagor pursuant to their respective leases, subleases
and occupancy agreements to Lender or such nominee as Lender may designate in
writing upon receipt of written notice from Lender that an Event of Default
under this Mortgage or the other Loan Documents has occurred, and all such
lessees, sublessees and occupants are expressly relieved of any and all duty,
liability or obligation to Mortgagor in respect of all payments so made. No
action taken by the Lender to collect any rents, royalties, income, profits
issues, revenues and accounts shall make the Lender a "mortgagee-in-possession"
of the Mortgaged Property. Possession by a court-appointed receiver shall not be
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considered possession by the Lender. All rents, royalties, income, profits,
issues, revenues and accounts collected by the Lender or a receiver shall be
applied to pay all expenses of collection (including without limitation
attorneys' fees), all costs of operation and management of the Mortgaged
Property, and all indebtedness and obligations secured by this Mortgage in
whatever order the Lender directs in its absolute discretion and without regard
to the adequacy of its security.
(b) Mortgagor shall not execute any lease, sublease or occupancy
agreement affecting any of the Mortgaged Property except with Lender's prior
written consent.
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(c) Without the prior written consent of the Lender, the Mortgagor
shall not accept prepayments of rent more than thirty (30) days in advance of
their due date under any leases, subleases or occupancy agreements affecting any
of the Mortgaged Property, nor modify, amend, extend or renew any such leases,
subleases or occupancy agreements, nor in any manner impair the Mortgagor's
interest in the rents, royalties, income, profits, issues, revenues and accounts
of the Mortgaged Property. The Mortgagor shall perform all covenants of the
lessor under any such leases, subleases or occupancy agreements. Upon the
Lender's request, the Mortgagor shall execute and deliver to Lender for
recordation an Assignment of Rents and Leases in form and substance acceptable
to Lender. Such Assignment of Rents and Leases, if and when recorded in the
public records of the county wherein the Property is situated, shall control as
to any irreconcilable conflict between the provisions of said assignment and the
provisions of this Section.
(d) If required by the Lender, any lease, sublease or occupancy
agreement affecting any of the Mortgaged Property must provide, in a manner
approved by the Lender, that the tenant or occupant shall recognize as its
lessor any person succeeding to the interest of the Mortgagor upon any
foreclosure of this Mortgage.
(e) Nothing herein shall render Lender liable under any existing or
future lease, sublease or occupancy agreement, regardless of the collection of
rents thereunder, for any of the covenants or agreements of Mortgagor under such
lease, sublease or occupancy agreement.
(f) The provisions of this Section 1.03 shall be construed and
interpreted consistently with the provisions of any separate Assignment of Rents
and Leases made by Mortgagor to Lender with respect to the Mortgaged Property,
to the end that all provisions of this Section 1.03 and any separate Assignment
shall be given full force and effect. In the event of an irreconcilable conflict
between any provision of this Section 1.03 and any provision of a separate
Assignment, the provision of the separate Assignment shall control if and when
such separate Assignment has been recorded in the public records of the county
wherein the Property is situated.
1.04 TRANSFER OF TITLE. It is specifically agreed and understood that
-----------------
Mortgagor shall not sell, contract to sell, grant an option to purchase,
transfer or otherwise convey all or any part of the Mortgaged Property, or any
interest therein, nor transfer the benefit of the Loan evidenced by the Note and
secured by the Mortgage or the interest rate specified in the Note to any person
acquiring title from the Mortgagor. Unless Lender gives its prior consent in
writing, the violation or attempted violation of any of the foregoing
prohibitions or restrictions shall be an Event of Default under this Mortgage
and the Note secured hereby. No cure period will apply to this default. Any
consent given by Lender hereunder shall pertain only to the proposed transfer of
title for which the consent was requested and shall not obligate Lender to
approve any further or future transfers.
1.05 CORPORATE STATUS, FINANCIAL AND MANAGEMENT COVENANTS.
----------------------------------------------------
(a) Mortgagor shall keep in effect its existence and rights as a
limited partnership under the laws of the State of Florida and shall not cause,
suffer or permit any changes in the management, ownership or control of
Mortgagor (whether by sale, assignment, transfer, pledge, hypothecation or other
disposition of the stock of Mortgagor or by merger or consolidation by or with
Mortgagor) or any other circumstance or occurrence the effect of which is to
transfer all or any part of the management, ownership or control of Mortgagor or
its stockholders from the persons now holding the same to others.
(b) For all periods during which (i) title to the Mortgaged Property or
any part thereof shall be held by a corporation, limited liability company or
association subject to corporate taxes or taxes similar to corporate taxes or
(ii) a general partner of Mortgagor is a corporation, limited liability company
or association subject to corporate taxes or taxes similar to corporate taxes,
such corporation, limited liability company or association shall file returns
for such taxes with the proper authorities, bureaus or departments and it shall
pay, when due and payable and before interest or penalties are due thereon, all
taxes owing by it to the United States, to the state of its incorporation or
creation and to the State of Florida and any political subdivision thereof, and
shall produce to Lender receipts showing payment of any and all such taxes,
charges or assessments prior to the last dates upon which such taxes, charges or
assessments are payable without interest or penalty charges, and within ten (10)
days of receipt thereof, all settlements, notices of deficiency or over
assessment and any other notices pertaining to such corporation, limited
4
liability company or association's tax liability, which may be issued by the
United States, such state of incorporation or creation, the State of Florida and
any political subdivision thereof. Notwithstanding the foregoing, such
corporation, limited liability company or association may in good faith contest,
by proper legal proceedings, the validity or amount of any such tax or charge,
provided (1) an Event of Default hereunder has not occurred; (2) such
corporation, limited liability company or association provides Lender security
reasonably satisfactory to Lender assuring the payment of such contested tax or
charge and any additional charge, penalty or expense which may arise from or be
incurred as a result of such contest; (3) such contest operates to suspend
collection and is maintained and prosecuted with diligence; and (4) such
corporation, limited liability company or association shall pay such contested
tax or charge and all costs and penalties, if any, and shall deliver to Lender
evidence acceptable to Lender of such payment promptly if such contest is
terminated or discontinued adversely to such corporation, limited liability
company or association, and in any event at least thirty (30) days before the
date any of the Mortgaged Property may be sold or otherwise transferred because
of non-payment of the tax or charge.
(c) Mortgagor shall furnish, or cause to be furnished, to Lender (1)
annually within ninety (90) days following the close of each fiscal year of
Mortgagor annual financial statements for the Mortgagor, including income and
expense statements and balance sheets as to assets and liabilities, all in
reasonable detail, all data being prepared according to generally accepted
accounting principles consistently applied, and all such annual statements being
certified by the chief executive officer or chief financial officer of Mortgagor
or the appropriate general partner, as the case may be, and subject only to such
qualifications as may be satisfactory to Lender; (2) annually within ninety (90)
days following the close of each fiscal year of Mortgagor, annual operating
statements for the Mortgaged Property, including without limitation an income
and expense statement, current rent roll, aging accounts payable, aging accounts
receivable and balance sheet as to assets and liabilities, all in reasonable
detail, all data being prepared according to generally accepted accounting
principles consistently applied, and being certified by the chief executive
officer or chief financial officer of Mortgagor and subject only to such
qualifications as may be satisfactory to Lender; (3) annually on or before March
31 of each year, or within 90 days after the close of any corporate guarantor's
year end annual financial statements for each guarantor of the Note or any
portion of the indebtedness evidenced thereby, including a balance sheet as to
assets and liabilities, all in reasonable detail, all in a form satisfactory to
Lender and all such statements being certified by the appropriate guarantor and
subject only to such qualifications as may be satisfactory to Lender; (4)
annually on or before April 30 of each year, true and complete copies of the
federal income tax return of Mortgagor, and each guarantor of the Note or any
portion of the indebtedness evidenced thereby; (5) upon Lender's request at any
time and from time to time, monthly operating statements for the Mortgaged
Property in form, content and detail acceptable to Lender; and (6) such other
records, financial statements, reports and documents concerning the business and
financial condition of Mortgagor, and/or any guarantor of the Note and/or the
operation of the Mortgaged Property as Lender may reasonably request from time
to time.
(d) Mortgagor shall not merge or consolidate with any other entity nor
transfer all or substantially all of its or their assets without the prior
written consent of Lender.
(e) Mortgagor shall not guarantee or otherwise in any way become or be
responsible for the obligations of any other person or entity, whether by
agreement to purchase the indebtedness of any other person or entity or by
agreement for the furnishing of funds to any other person or entity through the
purchase of goods, supplies or services, (or by way of stock purchase,
contribution, advance or loan) for the purpose of paying or discharging the
indebtedness of any other person or entity, or otherwise, except for the
endorsement of negotiable instruments in the ordinary course of business for
collection.
1.06 USE AND OPERATION. Mortgagor warrants and represents to Lender
-----------------
that the proposed use of the Mortgaged Property for an extended stay project,
together with associated facilities and amenities, complies with all existing
development orders, development of regional impact orders, zoning, future land
use maps, comprehensive plans, land use regulations, growth management
regulations and concurrency regulations of all federal, state and local
governmental bodies and agencies having jurisdiction with respect to the
Mortgaged Property which are applicable to the Mortgaged Property and with all
other federal, state and local laws, rules and regulations which are applicable
5
to the Mortgaged Property or the use thereof. Without the prior written consent
of Lender, Mortgagor shall not seek, make or consent to any change in any
existing development order or development of regional impact order or in the
zoning, comprehensive plan classification, future land use classification or
conditions of use of the Mortgaged Property which would impair the ability of
Mortgagor to use and operate the Property for an extended stay facility.
Mortgagor shall comply with all existing and future requirements of all
governmental authorities having jurisdiction over the Mortgaged Property.
1.07 SECURITY AGREEMENT. This Mortgage constitutes a Security
-------------------
Agreement under the Florida Uniform Commercial Code and creates a security
interest in all that property (and the proceeds thereof) included in the
Mortgaged Property which might otherwise be deemed "personal property".
Mortgagor shall execute, deliver, file and refile, any financing statements,
continuation statements and other security agreements Lender may require from
time to time to confirm the lien of this Mortgage with respect to such
property. Without limiting the foregoing, Mortgagor hereby irrevocably appoints
Lender attorney-in-fact for Mortgagor to execute, deliver and file such
instruments for and on behalf of Mortgagor, provided that an Event of Default
exists hereunder. For purposes of the foregoing sentence only, an affidavit by
an officer of Lender shall be sufficient evidence of the existence of an Event
of Default by Mortgagor. Notwithstanding any release of any or all of that
property included in the Mortgaged Property which is deemed "real property",
any proceedings to foreclose this Mortgage or its satisfaction of record, the
terms hereof shall survive as a security agreement with respect to the security
interests created hereby and referred to above until the repayment or
satisfaction in full of the obligations of Mortgagor as are now or hereafter
evidenced by the Note.
1.08 HAZARDOUS SUBSTANCES.
--------------------
(a) Mortgagor warrants and represents to Lender after thorough
investigation:
(1) That neither Mortgagor nor any other person to the Mortgagor's
knowledge, after reasonable inquiry, has ever used the Mortgaged Property as a
facility for the storage, treatment or disposal of any "Hazardous Substances,"
as that term is hereinafter defined;
(2) That the Mortgaged Property is now and at all times hereafter will
continue to be in full compliance with all federal, state and local
"Environmental Laws" (as that term is defined hereinafter), including but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 USC Section 9601, et seq., the Superfund Amendments
and Reauthorization Act of 1986 ("SAPA"), Public Law 99-499, 100 Stat. 1613, the
Resource Conservation and Recovery Act ("RCRA"), 42 USC Section 6901, et seq.,
the Florida Resource Recovery and Management Act, Section 403.701, et seq.,
Florida Statutes, the Pollutant Spill Prevention and Control Act, Section
376.011-376.17 and 376.19-376.21 Florida Statutes, as the same may be amended
from time to time and all ordinances, regulations, codes, plans, orders, and
decrees now existing or in the future enacted, promulgated, adopted, entered or
issued, both within and outside present contemplation of the Mortgagor and
Lender;
(3) That (i) as of the date hereof there are no hazardous or toxic
materials, substances, wastes or other environmentally regulated substances
(including solids or gaseous products and any materials containing asbestos),
the presence of which is limited, regulated or prohibited by any state, federal
or local governmental authority or agency having jurisdiction over the Mortgaged
Property, or which are otherwise known to pose a hazard to health or safety of
occupants of the Mortgaged Property, located on, in or under the Mortgaged
Property or used in connection therewith or (ii) Mortgagor has fully disclosed
to Lender in writing the existence, extent and nature of any such hazardous or
toxic material waste or other environmentally regulated substance, which
Mortgagor is legally authorized and empowered to maintain on, in or under the
Mortgaged Property or use in connection therewith, and Mortgagor has obtained
and will maintain all licenses, permits and approvals required with respect
thereto, and is in full compliance with all of the terms, conditions and
requirements of such licenses, permits and approvals;
(4) That Mortgagor shall notify Lender of any change in the nature or
extent of any hazardous or toxic materials, substances or wastes maintained on,
in or under the Mortgaged Property or used in connection therewith, and will
transmit to Lender copies of any citations, orders, notices or other material
governmental or other communication received with respect to any other hazardous
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materials, substances, wastes or other environmentally regulated substances
affecting the Mortgaged Property;
(5) That Mortgagor is not aware of, nor has the Mortgagor nor any of
its subsidiary or affiliated entities received notice of, any past, present or
future events, conditions, circumstances, activities, practices, incidents,
actions or plans which may interfere with or prevent compliance or continued
compliance with Environmental Laws or any ordinance, regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling, or the emission, discharge, release or threatened release
into the environment, of any Hazardous Substance; and
(6) That there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice or demand letter, notice of violation,
investigation, or proceeding pending or threatened against Mortgagor or the
Mortgaged Property, relating in any way to any Environmental Laws or any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder.
(b) Mortgagor hereby agrees to indemnify, reimburse, defend and hold
harmless Lender, its officers, directors, employees, successors and assigns,
from and against all demands, claims, civil or criminal actions or causes of
action, liens, assessments, civil or criminal penalties or fines, losses,
damages, liabilities, obligations, costs, disbursements, expenses or fees of any
kind or of any nature (including, without limitation, cleanup costs, attorneys',
consultants' or experts' fees and disbursements and costs of litigation at trial
and appellate levels) which may at any time be imposed upon, incurred by or
asserted or awarded against, Lender directly or indirectly, resulting from: (i)
any acts or activities of Mortgagor or any other person at, on or about the
Mortgaged Property which contaminate air, soils, surface waters or groundwaters
over, on or under the Mortgaged Property; (ii) arising from or out of any
Hazardous Substance on, in or under the Mortgaged Property; (iii) pursuant to or
in connection with the application of any Environmental Law to the acts or
omissions of Mortgagor or any other person and any environmental damage alleged
to have been caused, in whole or in part, by the transportation, treatment,
storage, or disposal of any Hazardous Substance; or (iv) arising from or in
relation to the presence, whether past, present or future, of any Hazardous
Substances on the Mortgaged Property.
(c) Without limiting the foregoing, this indemnification provision
specifically protects the Lender against any claim or action from activities
described in (i), (ii), (iii) or (iv) of subsection (b) above based in whole or
in part upon any environmental statute, rule, regulation or policy, including
but not limited to Chapters 403 and 376, Florida Statutes, the Florida
Administrative Code, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, ("CERCLA") 42 USC Section 9601, et seq., as amended, the
Resource Conservation and Recovery Act, 42 USC Section 6901, et seq., and other
laws, whether now in existence or enacted in the future.
(d) Mortgagor's indemnification obligation hereunder shall be one of
strict liability and shall be enforceable without regard to any fault or
knowledge of Lender with respect to any act or omission or condition or event
which is the basis of the claim under such indemnification obligation.
Mortgagor's obligation under this Section shall not be limited to any extent by
the term of the Note or other obligations secured hereby, and such obligation
shall continue, survive and remain in full force and effect notwithstanding
payment in full or other satisfaction or release of said Note (and other
obligations secured hereby) and this Mortgage, or any foreclosure under this
Mortgage, or any delivery of a deed in lieu of foreclosure. The provisions of
this Section shall be deemed to survive and continue in full force and effect
after any foreclosure or other proceeding by which the Lender, and its
successors and assigns, succeed to ownership of the Mortgaged Property.
(e) As used here in, "Environmental Law" means any federal, state or
local statutory or common law relating to pollution or protection of the
environment, including without limitation, any common law of nuisance or
trespass, and any law or regulation relating to emissions, discharges, releases
or threatened releases of Hazardous Substances into the environment (including
without limitation, ambient air, surface water, groundwater, land surface or
7
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances.
(f) As used herein, "Hazardous Substance" means any substance or
material identified in Section 101(14) of CERCLA, 42 USC Section 9601(14), as
the same may be amended from time to time, or (ii) determined to be toxic, a
pollutant or contaminant, under federal, state or local statute, law, ordinance,
rule or regulation or judicial or administrative order or decision, as same may
be amended from time to time, including but not limited to petroleum and
petroleum products as defined in Sec. 376.301(10), Florida Statutes, as same may
be amended from time to time.
(g) In the event that Lender has reasonable cause to believe that a
violation of an Environmental Law exists with respect to the Mortgaged Property
or in the event that a proceeding or investigation relating to the alleged
violation of an Environmental Law is then pending before any court, governmental
body or agency, Lender shall have the right to require Mortgagor, from time to
time, to perform (at Mortgagor's expense) an environmental audit and, if deemed
necessary by Lender, an environmental risk assessment, each of which must be
satisfactory to Lender in its sole discretion, of the Mortgaged Property,
hazardous waste management practices and/or hazardous waste disposal sites used
by Mortgagor. Such audit and/or risk assessment must be by an environmental
consultant satisfactory to Lender. Should Mortgagor fail to perform such
environmental audit or risk assessment within 30 days of the Lender's written
request, Lender shall have the right but not the obligation to retain an
environmental consultant to perform such environmental audit or risk assessment.
All costs and expenses incurred by Lender in the exercise of such rights shall
bear interest at the default rate set forth in the Note and shall be secured by
this Mortgage and shall be payable by Mortgagor upon demand or charged to
Mortgagor's loan balance at the discretion of the Lender.
(h) Unless otherwise specifically set forth herein, Any breach of any
warranty, representation or agreement contained in this Section which Borrower
has not cured pursuant to Paragraph 7.1.3 of the Loan Agreement shall be an
Event of Default under this Mortgage and shall entitle Lender to exercise any
and all remedies provided in this Mortgage, or otherwise permitted by law.
1.09 NO SECONDARY FINANCING. Without the prior written consent of
----------------------
Lender, Mortgagor shall not create or cause or permit to exist any lien on, or
security interest in, the Mortgaged Property, including any furniture, fixtures,
appliances, equipment and other items of personal property now or hereafter
owned by Mortgagor which are intended to be or become part of the Mortgaged
Property. Mortgagor shall promptly discharge, at Mortgagor's cost and expense,
all liens, encumbrances and charges upon the Mortgaged Property, or any part
thereof or interest therein, except such liens, encumbrances and charges
specifically approved by Lender in writing. In any event, Mortgagor shall have
no right to permit the holder of any subordinate mortgage or other subordinate
lien, whether or not consented to by Lender, to terminate any lease of all or
any portion of the Mortgaged Property whether or not such lease is subordinate
(whether by law or the terms of such lease or a separate agreement) to the lien
of this Mortgage without first obtaining the prior written consent of Lender.
The holder of any subordinate mortgage or other subordinate lien shall have no
such right, whether by foreclosure of its mortgage or lien or otherwise, to
terminate any such lease, whether or not permitted to do so by Mortgagor or as a
matter of law and any such attempt to terminate any such lease shall be
ineffective and void.
ARTICLE II.
-----------
DEFAULT AND REMEDIES
--------------------
2.01 Default. In addition to all other "Events of Default" specified
-------
elsewhere in this Mortgage or the other Loan Documents, an Event of Default
under this Mortgage shall exist if:
(a) Mortgagor fails to make any monetary payment required to be made by
Mortgagor to Lender by the Note or other Loan Documents, as and when due and
such failure shall continue for a period of five (5) days after written notice
by Lender to Mortgagor; or
8
(b) Mortgagor fails to perform any other covenant contained in this
Mortgage and fails to commence the cure of such failure within fifteen (15) days
after Lender gives Mortgagor written notice of such failure (unless such
default, if curable, requires work to be performed, acts to be done, or
conditions to be remedied that by their nature cannot be performed, done or
remedied, as the case may be, within such fifteen (15)-day period and Borrower
shall diligently and continuously process the same to completion, or unless
Lender's security reasonably will be materially impaired if Borrower does not
perform in less than fifteen (15) days, in which event Borrower shall have only
such period following demand in which to perform as Lender may specify),
provided that Mortgagor shall have no grace period or right to cure any default
under Sections 1.04, 1.05(a), 1.06 or 1.09; or
(c) Any other Event of Default occurs under any of the Loan Documents
or any other agreement which evidences, guarantees or secures any part of the
indebtedness or obligations evidenced by the Note or secured by this Mortgage;
or
(d) A default occurs under any other mortgage now or hereafter
encumbering all or any part of the Mortgaged Property; or
(e) Any representation or disclosure made to the Lender by or on behalf
of Mortgagor or by any guarantor of any indebtedness or obligation secured by
this Mortgage proves to be materially false or misleading on the date as of
which made, whether or not that representation or disclosure appears in this
Mortgage; or
(f) Mortgagor, or any guarantor of the Note files a voluntary petition
in bankruptcy or any petition or answer seeking or acquiescing in any
reorganization, rehabilitation, arrangement, composition, readjustment,
liquidation, dissolution or other relief under any present or future federal,
state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors; or an order for relief is entered in an involuntary
bankruptcy case filed against the Mortgagor or guarantor; or the Mortgagor or
guarantor seeks or consents to or acquiesces in the appointment of any trustee,
custodian, receiver or liquidator of itself or of all or any part of the
Mortgaged Property or any interest therein or all or any of the rents, revenues,
issues, earnings, profits or income thereof; or Mortgagor or guarantor shall
make a general assignment for the benefit of its or his creditors; or Mortgagor
or guarantor commits any act providing grounds for the entry of an order for
relief under any chapter of the federal bankruptcy code; or
(g) A petition or case is filed against Mortgagor or any guarantor of
the Note seeking any reorganization, rehabilitation, arrangement, composition,
readjustment, liquidation, dissolution or other relief under any present or
future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, or the appointment of any
trustee, custodian, receiver or liquidator of the Mortgagor or guarantor or of
all or any part of the Mortgaged Property or any interest therein or of any or
all of the rents, revenues, issues, earnings, profits or income thereof, and
such petition, case or appointment shall not be dismissed within sixty (60) days
after such filing or appointment; or
(h) Any other event occurs which, under the Note or under any other
agreement of the Mortgagor relating to the Loan, constitutes an Event of Default
thereunder by the Mortgagor or gives the Lender the right to accelerate the
maturity of all or any part of the indebtedness evidenced by the Note or related
loan documents or secured by this Mortgage; or
(i) A default occurs in payment of any indebtedness of Mortgagor, or
any guarantor of any portion of the indebtedness secured by the Mortgage, or
under any instrument evidencing, securing or governing any such indebtedness
subject to any cure periods set forth in the Loan Agreement; or
(j) Any judgment or order for payment of money is levied against
Mortgagor, or guarantor of any portion of the indebtedness secured by the
Mortgage and remains unsatisfied for a period of thirty (30) days without a stay
of execution; or
9
(k) Any guarantor dies or becomes legally incompetent for a continuous
period in excess of thirty (30) days; or
2.02 ACCELERATION. Upon the occurrence of an Event of Default under
------------
this Mortgage, then the whole of the indebtedness evidenced by the Note or
secured hereby shall, without notice, demand or legal process, become
immediately due and payable at the option of the Lender.
2.03 GENERAL REMEDIES. Upon the occurrence of an Event of Default
----------------
under this Mortgage, the Lender may, at its continuing option, and without
notice to or demand upon the Mortgagor:
(a) Enter onto the Mortgaged Property, in person or by agents or by
court-appointed receiver, and take possession thereof and exclude the Mortgagor
and the Mortgagor's agents and employees wholly therefrom, and upon demand of
Lender, Mortgagor shall forthwith surrender to Lender actual possession of the
Mortgaged Property, and upon every such entering and taking of possession, the
Lender may hold, store, use, operate, manage, control and maintain the Mortgaged
Property and conduct the business thereon and, from time to time, (i) make or
perform all necessary and proper construction, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and purchase or
otherwise acquire additional fixtures, personal and other property; (ii) insure
or keep the Mortgaged Property insured; (iii) manage and operate the Mortgaged
Property 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 to
Lender, all as Lender may from time to time determine to be to its best
interest. Further, Lender may collect and receive all of the income, rents,
profits, issues, revenues and accounts of or related to the Mortgaged Property,
including those past due as well as those accruing thereafter, and Lender may
apply any monies and proceeds received by Lender in such order and priority as
Lender in its sole discretion may determine to all expenses of taking, holding,
managing and operating the Mortgaged Property (including compensation for the
services of all persons employed for such purposes), to the cost of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions, to the cost of such insurance, to such
taxes, assessments and other charges as Lender may determine to pay, to other
proper charges upon the Mortgaged Property or any part thereof, to the
reasonable compensation and expenses of attorneys and agents of the Lender, to
accrued interest, to deposits for taxes, insurance and similar items required
hereunder, and to overdue installments of principal. For the purposes of
carrying out the provisions of this Subsection (a), Mortgagor hereby irrevocably
constitutes and appoints Lender as Mortgagor's agent and attorney-in-fact to do
and perform, from time to time, any and all actions necessary or incidental to
such purpose and does, by these presents, ratify and confirm any and all actions
of said attorney-in-fact in the Mortgaged Property. Whenever all Events of
Default have been cured and satisfied, Lender shall surrender possession of the
Mortgaged Property to Mortgagor, provided that the right of Lender to take
possession, from time to time, pursuant to this Section shall exist if any
subsequent Event of Default shall occur and be continuing;
(b) Bring a court action at law or in equity (i) to foreclose this
Mortgage, (ii) to enforce its provisions or any of the indebtedness or
obligations secured by this Mortgage, and (iii) to enforce Lender's rights and
remedies under any or all guaranties, security agreements, assignments and other
instruments and agreements evidencing or securing the Note, or to do any or all
of the foregoing, concurrently or otherwise, and one action or suit shall not
xxxxx or be a bar to or waiver of Lender's right to. institute or maintain any
other, or constitute an election of remedies by Lender, provided that Lender
shall have only one payment and satisfaction of the indebtedness;
(c) Exercise any other right or remedy available at law or in equity;
(d) Bid at any foreclosure sale and purchase the Mortgaged Property,
or any part thereof, if the highest bidder therefor. At the foreclosure sale the
Mortgaged Property may be offered for sale and sold as a whole without first
offering it in any other manner or may be offered for sale and sold in any other
manner Lender may elect in its sole discretion without regard to principles of
marshalling.
10
2.04 PROCEEDS OF SALE. The proceeds of any sale under this Mortgage
----------------
shall be applied in the following manner:
(a) First, to payment of the costs and expenses of tile sale, including
but not limited to Lender's fees, reasonable legal fees and disbursements, title
charges and transfer taxes, and payment of all expenses, liabilities and
advances of the Lender, together with interest at the rate provided under the
Note on all advances made by the Lender.
(b) Second, to payment of all sums expended by the Lender under the
terms of this Mortgage and not yet repaid, together with interest on such sums
at the after-default rate provided under the Note.
(c) Third, to payment of the indebtedness and obligations of the
Mortgagor evidenced by tile Note or related loan documents or secured by this
Mortgage in any order that the Lender chooses.
(d) Fourth, the remainder, if any, to the person or persons appearing
of record to be the owner of the Mortgaged Property, or as a court of competent
jurisdiction shall otherwise order.
2.05 MARSHALLING. Mortgagor waives all rights to direct the order or
-----------
manner in which any of the Mortgaged Property will be sold in the event of any
sale under this Mortgage and also waives any right to have any of the Mortgaged
Property marshalled upon any sale.
2.06 RECEIVER. Upon the occurrence of any Event of Default, the Lender,
--------
upon application to a court of competent jurisdiction, shall be entitled, ex
parte, without notice and without regard to the adequacy of any security for the
indebtedness hereby secured or the solvency of any party bound for its payment,
to the appointment of a receiver of and for the Mortgaged Property to take
possession of and to operate the Mortgaged Property and to collect the rents,
royalties, income, profits, issues, revenues and accounts thereof. The Mortgagor
shall pay to the Lender upon demand all expenses, including receiver's fees,
attorney's fees, costs and agent's compensation, incurred pursuant to the
provisions contained in this Section, and all such expenses shall be secured by
this Mortgage and shall bear interest at the after-default rate provided in the
Note.
2.07 REMEDIES CUMULATIVE. All remedies contained in this Mortgage are
-------------------
cumulative, and the Lender also has all other remedies provided by law, in
equity, by statute or in any other agreement between the Mortgagor and the
Lender. No right, power or remedy conferred upon or reserved to the Lender by
this Mortgage, the Note or any assignment of leases or other agreement now or
hereafter evidencing, securing or otherwise relating to the Loan shall 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. No delay or failure by the Lender to exercise
any right or remedy under this Mortgage will be construed to be a waiver of that
right or remedy or of any Event of Default hereunder. The Lender may exercise
any one or more of its rights and remedies at its option without regard to the
adequacy of its security.
2.08 REPOSSESSION AND SALE OF PERSONAL PROPERTY. Expenses of retaking,
------------------------------------------
holding, preparing for sale, selling or the like shall be borne by Mortgagor and
shall include Lender's attorneys' fees and legal expenses. Mortgagor, upon
demand of Lender, shall assemble all personal property subject to this Mortgage
and Security Agreement and make it available to Lender at the Property, a place
which is hereby deemed to be reasonably convenient to Lender and Mortgagor.
Lender shall have the right to cause any of the Mortgaged Property which is
subject to the security interest of Lender hereunder to be sold at any one or
more public or private sales as permitted by applicable law. Any such
disposition may be conducted by an employee or agent of Lender. Any person,
including Mortgagor and Lender, shall be eligible to purchase any part or all of
such property at any such sale. Lender shall give Mortgagor at least five (5)
days' prior written notice of the time and place of any public sale or other
disposition of such property or of the time of or after which any private sale
or other intended disposition is to be made, and if such notice is sent to
Mortgagor as provided for the mailing of notices herein, it is hereby deemed
that such notice shall be and is reasonable notification to Mortgagor.
11
2.09 EXPENSES. Mortgagor shall pay all of the Lender's expenses
--------
incurred in any efforts to enforce any terms of this Mortgage or to collect
the indebtedness secured hereby, whether or not any lawsuit is filed,
including but not limited to reasonable attorneys' fees and disbursements,
foreclosure costs, appraisal costs and title charges, the payment of which
sums is secured by this Mortgage.
ARTICLE III.
------------
GENERAL PROVISIONS
------------------
3.01 PARTIAL INVALIDITY. The invalidity or unenforceability of any one
------------------
or more provisions of this Mortgage will in no way affect the remaining
provisions hereof which shall be and remain in full force and effect.
3.02 MONTHLY DEPOSITS. At Lender's request after the occurrence of an
----------------
Event of Default under this Mortgage or upon Mortgagor's failure to pay the
taxes, lease payments, insurance premiums, assessments and other similar charges
hereinafter described when due, Mortgagor shall pay to the Lender on the first
day of each month, together with and in addition to the regular installment of
interest or principal and interest under the Note, until the Note is fully paid,
an amount equal to one-twelfth (1/12) of the yearly taxes, lease payments,
insurance premiums, assessments and other similar charges against the Mortgaged
Property or any part thereof as estimated by the Lender to be sufficient to
enable the Lender to pay all such charges at least thirty (30) days before they
first become due. Such added payments shall not be, nor be deemed to be, trust
funds, but may be commingled with the general funds of the Lender, and no
interest shall be payable in respect thereto. Upon demand of the Lender the
Mortgagor shall deliver to the Lender such additional monies as are necessary to
make up any deficiencies in the amounts necessary to enable the Lender to pay
such taxes, lease payments, insurance premiums, assessments and similar charges.
Upon the occurrence of an Event of Default under any of the terms, covenants or
conditions in the Note, Loan Agreement or related Loan Documents, or under this
Mortgage, the Lender may apply to the reduction of the sums secured hereby, in
such manner as the Lender shall determine, any amount under this Section
remaining to the Mortgagor's credit.
3.03 TAXES, UTILITIES AND LIENS.
--------------------------
(a) The Mortgagor shall pay promptly, when and as due, and shall
promptly exhibit to the Lender receipts for the payment of, all taxes, lease
payments, insurance premiums, assessments, water rates, dues, charges, fines and
impositions of every nature whatsoever imposed, levied or assessed or to be
imposed, levied or assessed upon or against the Mortgaged Property or any part
thereof, or upon the interest of the Lender in the Mortgaged Property as well as
all income taxes, assessments and other governmental charges lawfully levied and
imposed by the United States of America or any state, county, municipality,
borough or other taxing authority upon the Mortgagor or in respect of the
Mortgaged Property or any part thereof, or any charge which, if unpaid, would
become a lien or charge upon the Mortgaged Property prior to or equal to the
lien of the Mortgage for any amounts secured hereby or would have priority or
13
equality with the mortgage in distribution of the proceeds of any foreclosure
sale of the Mortgaged Property or any part thereof.
(b) Upon demand, Mortgagor shall promptly reimburse Lender for any and
all sums Lender pays as intangible tax and documentary stamp tax on the Note or
this Mortgage, or any future modification or extension thereof, pursuant to law
as it now exists or may be hereafter amended.
(c) The Mortgagor shall promptly pay all charges by utility companies,
whether public or private, for electricity, gas, water, sewer or other utilities
furnished to the Mortgaged Property.
(d) The Mortgagor shall promptly pay any and all mechanic's, laborer's,
statutory and other liens upon any of the Mortgaged Property and shall not
suffer any of the same to be created or to remain outstanding upon any of the
Mortgaged Property.
12
3.04 INSURANCE.
---------
(a) Coverages. Mortgagor shall at all times keep the Mortgaged Property
---------
insured against loss or damage from such causes as are customarily insured
against by prudent owners of similar properties, and, without limiting the
generality of the foregoing, Mortgagor shall obtain, maintain in effect and pay
for such insurance or evidence of insurance as Lender may reasonably require,
including, but not limited to, the following:
(1) Builder's Risk Insurance. Builder's all-risk insurance with respect
------------------------
to all portions of the Mortgaged Property and all personal property and
equipment affected by or involved in the construction of the Improvements to
such extent as is necessary to provide for full payment of the cost of restoring
or replacing the property damaged or destroyed or, if insurance to such extent
is not available, to the extent of the full insurable value of such portions of
the Mortgaged Property, including without limitation personal property, with
standard non-contributing mortgagee clauses and standard waiver of subrogation
clauses, such insurance to be in such amounts (not less than the outstanding
Loan indebtedness) and form and by such companies as shall be approved by
Lender, the originals of which policies (together with appropriate endorsements
thereto, evidence of payment or premiums thereon and written agreement by the
insurer or insurers therein to give Lender thirty (30) days prior written notice
of intention to cancel) shall be promptly delivered to Lender, said insurance
coverage to be kept in full force and effect at all times until the insurance
described in subsection (a)(2) below is obtained;
(2) Hazard Insurance. Insurance against loss or damage to the Mortgaged
----------------
Property (including plate glass breakage) due to fire, lightning, water, wind,
theft, vandalism and malicious mischief with a uniform standard extended
coverage endorsement under which endorsement any loss is valued on a replacement
cost basis, to the extent of the full insurable replacement value of the
Mortgaged Property, with standard non-contributing mortgagee clauses and
standard waiver of subrogation clauses, such insurance to be in such form and by
such companies as shall be approved by Lender, the originals of which policies
(together with appropriate endorsements thereto, evidence of payment of premiums
thereon and written agreement by the insurer or insurers therein to give Lender
thirty (30) days prior written notice of intention to cancel) shall be promptly
delivered to Lender, with such insurance to be kept in full force and effect at
all times thereafter until the payment in full of the Loan;
(3) Flood Insurance. Flood insurance if the Mortgaged Property or any
---------------
part thereof is located in a flood hazard zone designated by the United States
Department of Housing and Urban Development, Federal Insurance Administration,
or other governmental agency, in the amount of (i) the unpaid principal amount
of the Loan or (ii) the maximum limit of coverage made available with respect to
the Mortgaged Property under any applicable federal flood insurance program, and
if the maximum limit under such program is less than the principal amount of the
Loan, Mortgagor shall provide excess coverage up to the principal amount of the
Loan, such insurance to be in such form and by such companies as shall be
approved by Lender, the originals of which policies (together with appropriate
endorsements thereto, evidence of payment of premiums thereon and written
agreement by the insurer or insurers therein to give Lender thirty (30) days
prior written notice of intention to cancel) shall be promptly delivered to
Lender, said insurance coverage to be kept in full force and effect at all times
thereafter until the payment in full of the Loan;
(4) Workers' Compensation Insurance. Workers' compensation insurance
--------------------------------
covering all persons involved in the construction of the Improvements and all
employees of the Mortgagor to the full extent required by applicable law by such
companies as shall be approved by Lender, certified true copies of such policies
(together with appropriate endorsements thereto, evidence of payment of premiums
thereon and written agreement by the insurer or insurers therein to give Lender
thirty (30) days prior written notice of intention to cancel) shall be promptly
delivered to Lender, said insurance coverage to be kept in full force and effect
at all times thereafter until the payment in full of the Loan; and
(5) Public Liability Insurance. Public liability insurance against
--------------------------
liability for bodily injury to or death of persons and for damage to or loss of
property occurring on or about the Mortgaged Property or in any way related to
the condition or operation of the Mortgaged Property in the minimum amounts of
$1,000,000.00 for death of or bodily injury to any one person, $3,000,000.00 for
all death and bodily injury claims resulting from any one incident, and
$100,000.00 for property damage, and in form and content and issued by such
companies as shall be approved by Lender, the originals of which policies
13
(together with appropriate endorsements thereto, evidence of payment of premiums
thereon and written agreement by the insurer or insurers therein to give Lender
thirty (30) days prior written notice of intention to cancel) shall be promptly
delivered to Lender, said insurance coverage to be kept in full force and effect
at all times thereafter until the payment in full of the Loan.
(b) General Insurance Requirements.
------------------------------
(1) All policies of insurance required hereunder shall be in form and
with insurers acceptable to Lender in its sole discretion, and all such policies
shall be in such amounts as may be satisfactory to Lender. Without limiting the
generality of the foregoing, all insurance coverage required hereunder shall be
provided by insurance companies acceptable to the Lender that are rated "A" or
better by Best Insurance Guide and Key Ratings and with a claim payment rating
by Standard & Poor's Corporations of "AA" or better. The aggregate amount of
coverage provided by a single company may not exceed five percent (5%) of said
company's policyholders' surplus. Any reinsurance endorsements must be approved
by the Lender in writing, with such approval to be given or withheld by Lender
in its sole discretion. Reinsurance endorsements shall stipulate that the Lender
will receive ten (10) days' advance written notice of any change and/or
cancellation of the reinsurance agreement. All insurance companies must be
licensed and qualified to do business in the State in which the Mortgaged
Property is located. Such policies of insurance shall contain an endorsement, in
form and substance acceptable to Lender, showing loss payable to Lender. Such
endorsement, or an independent instrument furnished to Lender, shall provide
that the insurance companies shall give Lender at least thirty (30) days prior
written notice before any such policy or policies of insurance shall be altered
or canceled and that no act or default of Mortgagor or any other person shall
affect the right of Lender to recover under such policy or policies of insurance
in case of loss or damage. Mortgagor hereby directs all insurers under such
policies of insurance to pay all proceeds payable thereunder directly to Lender.
Without limiting the foregoing, Mortgagor shall cooperate fully with Lender in
obtaining for Lender the benefits of any insurance or other proceeds lawfully or
equitably payable to Lender in connection with the transactions contemplated by
this Agreement.
(2) The deductible amount under each insurance policy shall not exceed
$5,000.00. The original of each insurance policy or, in the case of a blanket
policy, a copy of the original policy certified in writing by a duly authorized
agent for the insurance company as a "true and accurate" copy of such policy,
shall be promptly delivered to the Lender. The Mortgagor shall not submit a
certificate of insurance in lieu of the original policy or certified copy
thereof.
(3) Each insurance policy shall provide that, insofar as the Lender's
interests under the policy are concerned, the coverage afforded thereby shall
not lapse or be terminated, cancelled or modified by reason of (i) any act or
negligence, or breach of any condition, declaration or warranty contained in any
such policy, by the Mortgagor or any third party, (ii) the occupation, operation
or use of the Mortgaged Property for purposes more hazardous than those
permitted by the terms of such policy, (iii) any foreclosure or other proceeding
or notice of sale relating to the Mortgaged Property, or (iv) any change in the
title to or ownership of all or any portion of the Mortgaged Property.
(4) Each insurance policy shall (i) provide primary insurance without
right of contribution from any other insurance carried by the Lender, (ii)
contain an express waiver by the insurer of any right of subrogation, setoff or
counterclaim against any insured party thereunder, (iii) permit the Lender to
pay premiums at the Lender's discretion, and (iv) provide that no claims in
excess of $5,000.00 thereunder shall be adjusted or settled without the prior
written consent of the Lender, which consent shall not be unreasonably withheld
or delayed by the Lender.
(5) Each insurance policy shall contain the following special
clauses:
(i) Mortgagee's Clause:
------------------
BANK OF PENSACOLA, its successors and assigns
Attn: Xxxxxx X. Xxxxxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
14
(ii) Loss Payable Clause:
-------------------
Loss, if any, under this policy, shall be payable to BANK OF
PENSACOLA, its successors and assigns, as their interest may
appear Attn: Xxxxxx X. Xxxxxxxx, Xx. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
(iii) Cancellation and Modification Clause:
------------------------------------
The Insurer hereby agrees that this policy will not lapse or
terminate, or be amended, modified or cancelled, unless and until
BANK OF PENSACOLA has received not less than thirty (30) days'
prior written notice thereof at the following address:
BANK OF PENSACOLA
Attn: Xxxxxx X. Xxxxxxxx, Xx.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
(iv) Differences in Conditions Clause:
--------------------------------
The form and substance of this clause shall be satisfactory to
Lender in its sole discretion.
(c) Insurance Claims. The Lender is hereby authorized and
----------------
empowered, at its option, to adjust or compromise any loss under any insurance
policies on the Mortgaged Property and to collect and receive the proceeds from
any such policy or policies. After deducting from said insurance proceeds any
expenses incurred by it in the collection or handling of said fund, the Lender
may apply the net proceeds, at its option, either toward restoring the
improvements on the Mortgaged Property or as a credit on any portion of the
indebtedness secured by this Mortgage as Lender may select, whether then matured
or to mature in the future, or at the option of the Lender such sums, either
wholly or in part, may be paid over to the Mortgagor to be used to repair such
improvements or to build new improvements in their place or for any other
purpose or object satisfactory to the Lender without affecting the lien of the
Mortgage for the full amount secured hereby before such payment took place.
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.
3.05 CONDEMNATION. Mortgagor shall give Lender immediate written notice
------------
of any actual or threatened condemnation proceeding affecting all or any part of
the Mortgaged Property or any interest therein. If all or any part of the
Mortgaged Property 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 the Lender become immediately due and payable; provided, however, that
in the event of a partial taking of the Mortgaged Property, Lender shall be
entitled to accelerate the entire indebtedness secured hereby only if Lender in
good xxxxx xxxxx itself insecure by reason of such partial taking. The Lender
shall be entitled to all compensation, awards and other payments or relief
thereof and is hereby authorized, at its option, to commence, appear in and
prosecute, in its own or the Mortgagor's name, any action or proceedings
relating to any condemnation. All such compensation, awards, damages, claims,
rights of action and proceeds and the right thereto are hereby assigned by the
Mortgagor to the Lender, which, after deducting therefrom all its expenses,
including attorney's fees, may release any monies so received by it without
affecting the lien of this Mortgage or may apply the same in such manner as the
Lender shall determine to the reduction of the sums secured hereby, and any
balance of such monies then remaining shall be paid to the Mortgagor. The
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Mortgagor agrees to execute such further assignments of any compensations,
awards, damages, claims, rights of action and proceeds as the Lender may
require.
3.06 CARE OF THE PROPERTY.
--------------------
(a) The Mortgagor shall preserve and maintain the Mortgaged Property in
neat, orderly and good condition and repair, shall maintain all equipment and
personal property comprising the Mortgaged Property in good working order, shall
not commit or suffer any waste, and shall not do or suffer to be done anything
which might increase the risk of fire or other hazard to the Mortgaged Property
or any part thereof or invalidate any insurance carried thereon. In the event
Mortgagor defaults under its obligations under this Section 3.06(a), then in
addition to all other remedies available to Lender by reason of such default,
Lender shall be entitled to establish a maintenance reserve escrow account and
to require Mortgagor to pay to Lender on the first day of each month, together
with and in addition to the regular installment of interest or principal and
interest under the Note, until the Note is fully paid, an amount deemed
sufficient by Lender in the reasonable exercise of its judgment and discretion
to provide for the present and future maintenance of the Mortgaged Property.
(b) Except as otherwise provided herein or in the Loan Agreement, no
buildings, fixtures, personal property or other improvements shall be
constructed, removed, demolished or materially altered on any part of the
Mortgaged Property without the prior written consent of the Lender. The
Mortgagor may sell or otherwise dispose of, free from the lien of this Mortgage
and Security Agreement, furniture, furnishings, equipment, tools, appliances,
machinery, fixtures and appurtenances which may become worn out, undesirable,
obsolete, disused or unnecessary for use in the operation of the Mortgaged
Property, upon replacing the same by, or substituting for the same, other
furniture, furnishings, equipment, tools, appliances, machinery, fixtures or
appurtenances not necessarily of the same character, but of at least equal value
to the Mortgagor and costing not less than the amount realized from the property
sold or otherwise disposed of, which shall forthwith become, without further
action, subject to the lien of this Mortgage and Security Agreement.
(c) The Lender is hereby authorized to enter upon and inspect the
Mortgaged Property at any time and from time to time during normal business
hours.
(d) The Mortgagor shall promptly comply with all present and future
laws, ordinances, rules and regulations of any governmental authority affecting
the Mortgaged Property or any part thereof.
(e) If all or any part of the Mortgaged Property shall be damaged by
fire or other casualty causing damage in excess of $5,000.00, the Mortgagor
shall give immediate written notice of same to Lender and shall promptly restore
the Mortgaged Property to the equivalent of its original condition, regardless
of whether insurance proceeds are made available. If a part of the Mortgaged
Property shall be physically damaged through condemnation, the Mortgagor shall
give immediate written notice of same to Lender and shall promptly restore,
repair or alter the remainder of the Mortgaged Property in a manner satisfactory
to the Lender.
3.07 REQUIRED NOTICES. In addition to all other notices required by
----------------
the Loan Documents, Mortgagor shall promptly notify Lender in writing of the
occurrence of any of the following:
(a) A fire or other casualty causing damage to the Mortgaged Property
in excess of $5,000.00;
(b) Receipt of notice of eminent domain proceedings or condemnation of
all or any part of the
Mortgaged Property;
(c) Receipt of notice of any violation of any law, ordinance or
regulation from any governmental authority relating to the structure, use or
occupancy of the Mortgaged Property;
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(d) Receipt of any default or acceleration notice from the holder of
any lien or security interest in the Mortgaged Property or any portion thereof;
and
(e) Commencement of any material litigation affecting the Mortgaged
Property.
3.08 PERFORMANCE BY LENDER OF DEFAULTS BY MORTGAGOR. If the Mortgagor
----------------------------------------------
shall default in the payment of any tax, lien, assessment or charge levied or
assessed against the Mortgaged Property; 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; or in the performance or observance of any other covenant,
condition or term of this Mortgage, then the Lender, at its option, may perform
or observe the same, and all payments made or costs paid or incurred by the
Lender in connection therewith shall be secured hereby and shall be, without
demand, immediately repaid by the Mortgagors to the Lender with interest thereon
at the after-default rate set forth in the Note. The Lender shall be the sole
judge of the legality, validity and priority of any such tax, lien, assessment,
charge, claim and premium; of the necessity for any such actions; and of the
amount necessary to be paid in satisfaction thereof. The Lender is hereby
empowered to enter and to authorize others to enter upon the Mortgaged Property
or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to the
Mortgagor or any person in possession holding under the Mortgagor.
3.09 LENDER'S OPTION ON FORECLOSURE. Upon the occurrence of an Event of
------------------------------
Default, at the option of the Lender, this Mortgage may be foreclosed in
accordance with applicable law, in which event reasonable attorney's fee shall,
among other costs and expenses, be allowed and paid out of the proceeds of the
sale. In the event Lender exercises its option to foreclose the Mortgage in
equity, Lender may, at its option, foreclose this Mortgage subject to the rights
of any tenants of the Mortgaged Property and the failure to make any such
tenants parties defendants to any such foreclosure proceeding and to foreclose
their rights shall not be, nor be asserted to be by the Mortgagor, a defense to
any proceedings instituted by the Lender to collect the sums secured hereby or
any deficiency remaining unpaid after the foreclosure sale of the Mortgaged
Property.
3.10 WAIVER OF EXEMPTION. Mortgagor hereby waives all rights of
---------------------
exemption pertaining to real or personal property as to any indebtedness secured
by or that may be secured by this Mortgage, and Mortgagor waives the benefit of
any statute regulating, restricting or prohibiting the obtaining of a deficiency
judgment by Lender against Mortgagor or requiring that the value of the
Mortgaged Property be set off against any part of the indebtedness secured
hereby, except as might be provided under Florida law in the event of
foreclosure of this Mortgage.
3.11 NO WAIVER.
---------
(a) No delay or omission of the Lender or of any holder of the Note to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy nor be construed to be a
waiver of any such Event of Default or acquiescence therein; and every right,
power and remedy given by this Mortgage to the Lender may be exercised from time
to time and as often as may be deemed expedient by the Lender.
(b) No waiver of any Event of Default hereunder shall extend to or
shall affect any subsequent Event of Default or any other then existing Event of
Default or shall impair any rights, powers or remedies consequent thereon.
(c) If the Lender (i) grants forbearance or an extension of time for
the payment of any sums secured hereby; (ii) takes other or additional security
for the payment thereof, (iii) waives or does not exercise any right granted
herein or in the Note; (iv) releases any part of the Mortgaged Property from the
lien of the Mortgage or otherwise changes any of the terms of the Note or this
Mortgage; (v) consents to the filing of any map, plat or replat thereof, (vi)
consents to the granting of any easement thereon; or (vii) makes or consents to
any agreement subordinating the lien of this Mortgage or to any change in the
Note or this Mortgage, then any such act or omission shall not release,
discharge, modify, change or affect the original liability under the Note,
Mortgage or otherwise of the Mortgagor or any subsequent purchaser of the
Mortgaged Property or any part thereof, or any maker, co-signer, endorser,
surety or guarantor of the Note; nor shall any such act or omission preclude the
Lender from exercising any right, power or privilege herein granted or intended
17
to be granted in the event of any other Event of Default then made or of any
subsequent Event of Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by the Lender, shall the lien of this
Mortgage be altered thereby. In the event of the sale or transfer by operation
of law or otherwise of all or any part of the Mortgaged Property, the Lender,
without notice to any person or corporation is hereby authorized and empowered
to deal with any such vendee or transferee with reference to the Mortgaged
Property or the indebtedness secured hereby, or with reference to any of the
terms of conditions hereof, as fully and to the same extent as it might deal
with the original parties hereto and without in any way releasing or discharging
any of the liabilities or undertakings hereunder of Mortgagor or of any maker,
co-signer, endorser or guarantor of the Note.
3.12 DISCONTINUANCE OF PROCEEDINGS - POSITION OF PARTIES RESTORED. In
------------------------------------------------------------
case the Lender shall have proceeded to enforce any right or remedy under this
Mortgage by foreclosure, entry or otherwise and such proceedings shall have been
determined adversely to the Lender, then and in every such case tile Mortgagor
and the Lender shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of the Lender shall continue as if no such
proceeding had been taken.
3.13 LITIGATION AND ATTORNEY'S FEES. Mortgagor shall pay or reimburse
------------------------------
Lender for all reasonable attorney's fees, costs and expenses incurred by Lender
in any proceeding involving the estate of a decedent or an insolvent, or in any
action, proceeding or dispute of any kind in which the Lender is made a party or
appears as party plaintiff or defendant, affecting this Mortgage or the
Mortgaged Property, including without limitation the foreclosure of this
Mortgage, any condemnation action involving the Mortgaged Property, or any
action to protect the security hereof, and in any situation where Lender employs
an attorney to protect the Lender's rights hereunder, whether or not legal
proceedings are commenced or involved. All such amounts paid by Lender shall be
secured by this Mortgage, shall bear interest at the after-default rate
specified in the Note and shall be payable by Mortgagor upon demand.
3.14 NOTICES. All notices and other communications required hereunder
-------
shall be in Writing and shall be delivered personally, or by registered or
certified mail, return receipt requested, postage prepaid, or by Federal
Express, Express Mail or Air Courier, fees prepaid. Such notices shall be deemed
to have been received (i) upon delivery, if personally delivered; (ii) upon the
earlier of actual receipt or the fourth day after mailing, if mailed by
registered or certified mail, return receipt requested, postage prepaid; and
(iii) on the next business day if sent by Federal Express, Express Mail or Air
Courier, fees prepaid. The address for delivery of such notices shall be as
follows:
(a) To Lender at: BANK OF PENSACOLA
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
with copy to: Xxxxxxx X. Xxxxxxx, Xx., Esquire
Shell, Fleming, Xxxxx & Xxxxx
000 Xxxxxxx Xxxxx, Xxxxx Xxxxx (32501)
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000-0000
(b) To Borrower at: HOME STAY LODGE 1, LTD.
c/o Home Stay Lodge, Inc.
0000 Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
with copy to: Xxxxxx X. Xxxxxxx, III
0000 Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
18
3.15 MISCELLANEOUS. The term "Mortgagor" includes both the original
-------------
Mortgagor and any subsequent owner or owners of any of the Mortgaged Property,
and the term "Lender" includes the original Lender and also any future owner or
holder, including pledgees, assignees and participants, of the Note or any
interest therein. Whenever the context requires, the singular includes the
plural and vice versa and each gender includes each other gender. The headings
of the articles, sections and paragraphs of this Mortgage are for convenience
only and do not limit its provisions.
3.16 LAWS. In the event of the passage of any state, federal, municipal
----
or other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of mortgages or debts secured thereby, or the manner of operation of
such taxes so as to adversely affect the interest of Lender, then Mortgagor
shall bear and pay the full amount of such taxes unless such payment would be
unlawful, in which event Lender may at its option declare the entire balance of
the principal sum secured by this Mortgage and all interest accrued thereon and
all other sums secured by this Mortgage to be immediately due and payable upon
written notice delivered by Lender to Borrower in accordance with Section 3.14
above, and thereupon Lender may foreclose upon this Mortgage without further
notice.
3.17 SUCCESSORS. The terms of this Mortgage shall bind and benefit the
----------
heirs, legal representatives, successors and assigns of the Mortgagor and the
Lender. If the Mortgagor consists of more than one person or entity, each shall
be jointly and severally liable to perform the obligations of the Mortgagor.
3.18 WAIVER OF JURY TRIAL. MORTGAGOR AND ALL PERSONS OBLIGATED FOR
--------------------
REPAYMENT OF ALL OR ANY PART OF THE INDEBTEDNESS SECURED BY THIS MORTGAGE
(WHETHER AS MAKER, COMAKER, GUARANTOR, SURETY OR ENDORSER) (COLLECTIVELY, THE
"OBLIGORS") HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE THAT:
(1) MORTGAGOR AND THE OBLIGORS HEREBY WAIVE THE RIGHT TO TRIAL BY JURY
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, CROSS-CLAIM OR OTHER ACTION OR
PROCEEDING ARISING FROM OR BASED UPON THIS MORTGAGE OR ANY OF THE LOAN
DOCUMENTS, AND NEITHER THE MORTGAGOR, NOR MORTGAGOR'S HEIRS, LEGAL
REPRESENTATIVES, SUCCESSORS OR ASSIGNS, NOR ANY OTHER OBLIGOR OR SUCH OBLIGORS
HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, CROSS-CLAIM OR OTHER ACTION OR PROCEEDING
ARISING FROM OR BASED UPON THIS MORTGAGE OR ANY OF THE LOAN DOCUMENTS.
(2) NEITHER THE MORTGAGOR, NOR MORTGAGOR'S HEIRS, LEGAL
REPRESENTATIVES, SUCCESSORS OR ASSIGNS, NOR ANY OTHER OBLIGOR OR SUCH OBLIGOR'S
HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS, SHALL SEEK TO CONSOLIDATE
ANY CLAIM AS TO WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY CLAIM IN WHICH A
JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED.
(3) THE PROVISIONS OF THIS SECTION 3.18 HAVE BEEN FULLY NEGOTIATED BY
LENDER, MORTGAGOR AND THE OTHER OBLIGORS, AND THESE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS.
(4) NEITHER LENDER NOR ANY OFFICER, EMPLOYEE, ATTORNEY, AGENT OR OTHER
REPRESENTATIVE OF LENDER HAS IN ANY WAY AGREED WITH OR REPRESENTED TO MORTGAGOR
OR ANY OTHER OBLIGOR THAT- THE PROVISIONS OF THIS SEC71ON 3.18 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
(5) THIS SECTION 3.18 IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO
THE LOAN AND OTHER TRANSACTIONS EVIDENCED OR SECURED BY THIS MORTGAGE AND THE
LOAN DOCUMENTS.
19
3.19 ESTOPPEL AFFIDAVITS. Mortgagor, within ten (10) days after written
-------------------
request from Lender from time to time, shall furnish written statements, duly
acknowledged, setting forth the unpaid indebtedness evidenced by the Note and
whether or not there exists any offset or defense against the Note and whether
or not there exists any Event of Default or event which with the giving of
notice or the passage of time, or both, would constitute an Event of Default by
Mortgagor or Lender under the Note, this Mortgage, the Loan Agreement or any
other instrument evidencing or securing the Loan.
IN WITNESS WHEREOF, Borrower has caused this instrument to be executed
in its name by its duly authorized officer as of the day and year first above
written.
SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF.
/s/ Xxxxxxx X. Xxxxxxx, Xx. HOME STAY LODGE I, LTD., a Florida Limited
---------------------------- Partnership
Xxxxxxx X. Xxxxxxx, Xx. By: Home Stay Lodge, Inc., a Florida Corporation
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx
---------------------------- ---------------------------------------------
Xxxx X. Xxxxxx Its: PRESIDENT
-------------------------------------
Its Sole General Partner
STATE OF FLORIDA
COUNTY OF ESCAMBIA
The foregoing instrument was acknowledged before me this 21st day of May 1998,
by Xxxxxx X. XxXxxxxx, the President of Home Stay Lodge, Inc., a Florida
corporation, the sole general partner of HOME STAY LODGE I, LTD, a Florida
limited partnership, on behalf of said partnership (___) who is personally known
to me or (X) who produced Texas drivers license as identification
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------------
[NOTARIAL SEAL] NOTARY PUBLIC - STATE OF FLORIDA
Typed Name: Xxxxxxx X. Xxxxxxx, Xx.
My Commission Expires: 02-28-01
20
EXHIBIT "A"
Xxxx 00, 00, 00 xxx 00, Xxxxx 0, Xxxxxxxx Heights, according to Plat recorded in
Plat Book 1, at Page 27, of the Public Records of Escambia County, Florida.
AND
From a concrete monument located at the intersection of the Westerly
right-of-way line of the new Pensacola-Ferry Pass Road (SR 1-A) and the
centerline of public road known as the 9 Mile Rd., said center line being an
extension of the line between Sec. 4 and 16, TIS, R30W, Escambia County, Florida
(the said monument being 606.16 ft, more or less, from the West line of the said
Xxxxxx Xxxxxxx Grant) run Westerly along the center line of said 0 Xxxx Xxxx 8.6
feet to a point; thence Southerly at an angle 90 degrees from said centerline go
1.5 feet to a stake located at the intersection of the right-of-way of the said
two roads for Point of Beginning; thence run Westerly parallel to the above
mentioned 0 Xxxx Xxxx a distance of 495 feet to a stake; thence Southerly, at an
angle of 90 degrees 39.5 minutes with the Westerly course just run go 260.9 feet
to a stake; thence Easterly at an angle of 89 degrees 20.5 minutes with the
Southerly course just run go 343.4 feet to a stake on the West line of the
right-of-way of the above mentioned SR 1-A; thence along the said right-of-way
line of SR 1-A around a 1 degree circular curve to the right in a Northeasterly
direction 300.8 feet, more or less, to the Point of Beginning, all lying and
being in the Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx 00, X0X, X00X. Also, Xxxx 0, 0 xxx 0,
Xxxxx 00, Xxxxx Xxxx Heights, a S/D of Fractional Section 4 and portions of
Section 15 and 16, T1S, R30W, Plat of said S/D being recorded in Plat Book 1, at
Page 64, Records of Escambia County, Florida.
EXHIBIT "B"
-----------
Permitted Title Exceptions
--------------------------
1. The lien of all taxes for the year 1998 and subsequent years, which are not
yet due and payable.
2. Road Right of Ways.
