[LETTERHEAD]
EXH. 10.20
XXXXXXX BANK, N.A.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), made this 30 day of
September, 1996, between XXXXXX INDUSTRIES, INC., a Florida corporation, whose
mailing address is 0000 X. Xxxxxxxxxx Xxx., Xxxxxxxxxx, XX 00000 (the
"Borrower"), and XXXXXXX BANK, N.A., a national banking association, whose
mailing address is Xxxx Xxxxxx Xxx 000000, Xxxxxxx, Xxxxxxx 00000-0000,
Attention: Credit Administration Manager (the "Lender");
W I T N E S S E T H:
WHEREAS, Borrower is indebted to Lender in the principal sum of TWO MILLION
FOUR HUNDRED ($2,400,000.00) DOLLARS, together with interest thereon, as
evidenced by that certain promissory note of even date herewith, executed by
Borrower and delivered to Lender (the "Note"), which by reference is made a part
hereof to the same extent as though set out in full herein, together with all
modifications, renewals and extensions hereof. The Note, this Mortgage and all
other documents executed in connection therewith, now or hereafter, are herein
referred to as the "Loan Documents."
NOW, THEREFORE, to secure the performance and observance by Borrower of all
covenants and conditions in the Note, together with all renewals, extensions and
modifications thereof, and in this Mortgage and in all other Loan Documents, and
in order to charge the properties, interests and rights hereinafter described
with such payment, performance and observance, and for and in consideration of
the sum of ONE ($1.00) DOLLAR, paid by Lender to Borrower this date, and for
other valuable considerations, the receipt of which is acknowledged, Borrower
does hereby grant, bargain, sell, alien, remise, release, convey, assign,
transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and confirm
unto Lender, its successors and assigns forever:
THE MORTGAGED PROPERTY
1. THE LAND. All the land located in the County of Brevard, State of
Florida (the "Land"), described as follows, to-wit:
SEE EXHIBIT A ATTACHED HERETO.
2. THE IMPROVEMENTS. TOGETHER WITH all buildings, structures and
improvements of every nature whatsoever now or hereafter situated on the Land,
and all fixtures, machinery, appliances, equipment, furniture, and personal
property of every
nature whatsoever now or hereafter owned by Borrower and located in or on, or
attached to, or used or intended to be used in connection with or with the
operation of, the Land, buildings, structures or other improvements, or in
connection with any construction being conducted or which may be conducted
thereon, and owned by Borrower, including all extensions, additions,
improvements, betterments, renewals, substitutions, and replacements to any of
the foregoing and all of the right, title and interest of Borrower in and to any
such personal property or fixtures (subJect to any lien, security interest or
claim) together with the benefit of any deposits or payments now or hereafter
made on such personal property or fixtures by Borrower or on its behalf (the
"Improvements").
3. EASEMENTS OR OTHER INTERESTS. TOGETHER WITH all easements, rights of
way, gores of land, streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances whatsoever, in
any way belonging, relating or appertaining to any of the property hereinabove
described, or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Borrower, and the reversion
and reversions, remainder and remainders, rents, issues and profits thereof, and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever, at law as well as in equity, of Borrower of, in and to the same,
including but not limited to all judgments, awards of damages and settlements
hereafter made resulting from condemnation proceedings or the taking of the
property described in paragraphs (A), (B) and (C) (the "Property") hereof or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Property hereof or any part thereof,
or to any rights appurtenant thereto, and all proceeds of any sales or other
dispositions of the Property or any part thereof.
4. ASSIGNMENT OF RENTS. TOGETHER WITH all rents, royalties, issues,
profits, revenue, income and other benefits from the Property to be applied
against the indebtedness and other sums secured hereby, provided, however, that
permission is hereby given to Borrower so long as no default has occurred
hereunder, to collect, receive, take, use and enjoy such rents, royalties,
issues, profits, revenue, income and other benefits as they become due and
payable, but not in advance thereof, to enforce all Borrower's rights under any
lease now or hereafter affecting the Property. The foregoing assignment shall
be fully operative without any further action on the part of either party and
specifically Lender shall be entitled, at its option upon the occurrence of a
default hereunder, to all rents, royalties, issues, profits, revenue, income and
other benefits from the Property whether or not Lender takes possession of the
Property. Upon any such default hereunder, the permission hereby given to
Borrower to collect such rents, royalties, issues, profits, revenue,
income and other benefits from the Property shall terminate and such
permission shall not be reinstated upon a cure of the default without Lender's
specific consent. Neither the exercise of any rights under this paragraph by
Lender nor the application of any such rents, royalties, issues, profits,
revenue, income or other benefits to the indebtedness and other sums secured
hereby, shall cure or waive any default or notice of default hereunder or
invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
5. ASSIGNMENT OF LEASES. TOGETHER WITH all right, title and interest of
Borrower in and to any and all leases now or hereafter on or affecting the
Property, together with all security therefor and all monies payable thereunder,
subject, however, to the conditional permission hereinabove given to Borrower to
collect the rentals and enforce its rights under any such lease. The foregoing
assignment of any lease shall not be deemed to impose upon Lender any of the
obligations or duties of Borrower provided in any such lease, and Borrower
agrees to fully perform all obligations of the lessor under all such leases.
Upon Lender's request, Borrower agrees to send to Lender a list, or copy, of all
leases covered by the foregoing assignment and as any such lease shall expire or
terminate or as any new lease shall be made, Borrower shall so notify Lender in
order that at all times Lender shall have a current list of all leases affecting
the Property. Lender shall have the right, at any time and from time to time, to
notify any lessee of the rights of Lender as provided by this paragraph. From
time to time, upon request of Lender, Borrower shall specifically assign to
Lender as additional security hereunder, by an instrument in writing in such
form as may be approved by Lender, all right, title and interest of Borrower in
and to any and all leases now or hereafter on or affecting the Mortgaged
Property, together with all security therefor and all monies payable thereunder,
subject to the conditional permission hereinabove given to Borrower to collect
the rentals and enforce its rights under any such lease. Borrower shall also
execute and deliver to Lender any notification, financing statement or other
document reasonably required by Lender to perfect the foregoing assignment as to
any such lease. Upon the reasonable request of the Lender, the Borrower shall
provide the Lender with estoppel letters or certificates from the various
tenants, if any, occupying the Mortgaged Property, stating in detail the current
status of their lease and/or occupancy of the Mortgage Property.
This instrument constitutes an absolute and present assignment of the
rents, royalties, issues, profits, revenue, income and other benefits from the
Mortgaged Property, subject, however, to the conditional permission given to
Borrower to collect, receive, take, use and enjoy the same and enforce its
rights as provided hereinabove; provided, further, that the existence or
exercise of such right of Borrower shall not operate to subordinate this
assignment to any subsequent assignment, in whole or
in part, by Borrower, and any such subsequent assignment by Borrower shall be
subject to the rights of Lender hereunder.
6. FIXTURES AND PERSONAL PROPERTY. TOGETHER WITH a security interest in
(i) all property and fixtures affixed to or located on the Property which, to
the fullest extent permitted by law shall be deemed fixtures and a part of the
Property; (ii) all articles of personal property and all materials delivered to
the Property for use in any construction being conducted thereon, and owned by
Borrower; (iii) all proceeds, products, replacements, additions, substitutions,
renewals and accessions of any of the foregoing; (iv) all contract rights,
general intangibles, water and sewer payments, leases and lease payments,
eminent domain awards, insurance policies and proceeds, actions and rights in
action, as all of the same may relate to the Property; (v) all contracts,
agreements, licenses and permits, now or hereafter in existence, used by the
Borrower in connection with the operation of any business now, or hereafter,
operated on the Land; and (vi) all instruments, documents, chattel papers and
general business intangibles relating to or arising from the collateral
described in this paragraph (F) and all cash and noncash proceeds and products
thereof. The foregoing items (i), (ii) and (iii) (hereinafter the "Tangible
Property") include (a) all rights, title and interest of Borrower in and to the
minerals, soil, flowers, shrubs, crops, trees, timber and other emblements now
or hereafter on the Property or under or above the same or any part or parcel
thereof; (b) all machinery, apparatus, equipment, fittings, fixtures, whether
actually or constructively attached to the Property and including all trade,
domestic and ornamental fixtures and articles of personal property of every kind
and nature whatsoever now or hereafter located in, upon or under the Property or
any part thereof and used or usable in connection with any present or future
operation of the Property and now owned or hereafter acquired by Borrower,
including, but without limiting the generality of the foregoing, all heating,
air conditioning, freezing, lighting, laundry, incinerating and power equipment;
engines; pipes; pumps; tanks; motors; conduits; switchboards; plumbing, lifting,
cleaning, fire prevention, fire extinguishing, refrigerating, ventilating and
communications apparatus; boilers, ranges, furnaces, oil burners or units
thereof; appliances; air cooling and air conditioning apparatus; vacuum cleaning
systems; elevators; escalators; shades; awnings; screens; storm doors and
windows; stoves; wall beds; refrigerators; attached cabinets; partitions; ducts
and compressors; rugs and carpets; draperies; furniture and furnishings;
together with all building materials and equipment now or hereafter delivered to
the Property and intended to be installed therein, including but not limited to
lumber, plaster, cement, shingles, roofing, plumbing, fixtures, pipe, lath,
wallboard, cabinets, nails, sinks, toilets, furnaces, heaters, brick, tile,
water heaters, screens, window frames, glass doors, flooring, paint, lighting
fixtures and unattached refrigerating, cooking, heating and ventilating
appliances and equipment; together with all proceeds,
additions and accessions thereto and replacements thereof; (c) all of the water,
sanitary and storm sewer systems now or hereafter owned by the Borrower which
are now or hereafter located by, over and upon the Property or any part and
parcel thereof, and which water system includes all water mains, service
laterals, hydrants, valves and appurtenances, and which sewer system includes
all sanitary sewer lines, including mains, laterals, manholes, sewer and water
tap units, and appurtenances thereto; and (d) all paving for streets, roads,
walkways or entrance ways now or hereafter owned by Borrower and which are now
or hereafter located on the Property or any part or parcel thereof. The
foregoing items (iv), (v) and (vi) (hereinafter the "Intangible Collateral")
include (aa) all sewer permits, connection fees, impact fees, reservation fees,
and other deposits or payments made in connection with the reservation,
allocation, permitting or providing of wastewater treatment and potable water to
the Property and any and all claims or demands relating thereto, now owned or
which may hereafter be acquired by Borrower, together with all right, title,
interest, equity, estate, demand or claim to the provision of wastewater
treatment and potable water to the Property, now existing or which may hereafter
be acquired by Borrower; (bb) all of Borrower's interest as lessor in and to all
leases or rental arrangements of the Property or any part thereof, heretofore
made and entered into, and in and to all leases or rental arrangements hereafter
made and entered into by Borrower during the life of the security agreements or
any extension or renewal thereof, together with all rents and payments in lieu
of rents, together with any and all guarantees of such leases or rental
arrangements and including all present and future security deposits and advance
rentals; (cc) any and all awards or payments, including interest thereon and the
right to receive the same, as a result of (a) the exercise of the right of
eminent domain, (b) the alteration of the grade of any street, or (c) any other
injury to, taking of or decrease in the value of the Property; (dd) all of the
right, title and interest of the Borrower in and to all unearned premiums
accrued, accruing or to accrue under any and all insurance policies now or
hereafter provided pursuant to the terms of security agreements, and all
proceeds or sums payable for the loss of or damage to the Property herein, or
rents, revenues, income, profits or proceeds from leases, franchises,
concessions or licenses of or on any part of the Property; (ee) all contracts
and contract rights of Borrower arising from contracts entered into in
connection with development, construction upon or operation of the Property,
including but not limited to, all deposits held by or on behalf of the Borrower,
and all management, franchise and service agreements, related to the business
now or hereafter conducted by the Borrower on the Property; (ff) all of the
right, title and interest of the Borrower in and to any trade name, names of
businesses, or fictitious names of any kind used in conjunction with the
operation of any business or endeavor located on the Property; and (gg) all of
Borrower's interest in all utility security deposits or bonds on the Prop-
erty or any part or parcel thereof. Borrower (Debtor) hereby grants to Lender
(Creditor) a security interest in all of the foregoing items (i) through (vi).
7. SECURITY AGREEMENT. To the extent any of the property described
encumbered by this Mortgage from time to time constitutes personal property
subject to the provisions of the Florida Uniform Commercial Code (the "Code"),
this Mortgage constitutes a "Security Agreement" for all purposes under the
Code. Without limitation, Lender, at its election, upon Borrower's default
under this Mortgage continuing beyond any applicable curative period, will have
all rights, powers, privileges, and remedies from time to time available to a
secured party under the provisions of the Code with respect to such property.
Notwithstanding any provision of this Mortgage to the contrary, Borrower and
Lender agree that, unless and until Lender affirmatively elects otherwise, all
property in any manner used, useful, or intended to be used for the improvement
of, or production of income from, the Land is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be, regarded as
part of the real estate irrespective of whether (i) any such items are
physically attached to the Improvements; (ii) serial numbers are used for the
better identification of certain equipment; or (iii) any such item is referred
to or reflected in any financing statement filed or recorded at any time.
Similarly, the mention in any financing statement of the rights in, or the
proceeds of, any fire and/or hazard insurance policy, or any award in eminent
domain proceedings for a taking or for loss of value, or Borrower's interest as
lessor in any present or future lease or rights to income growing out of the use
of the Mortgage Property, whether pursuant to a lease or otherwise, shall not be
construed as altering any of Lender's rights as determined by this Mortgage, or
otherwise available at law or in equity, or impugning the priority of this
Mortgage, or the Loan Documents, or both, but such mention in any financing
statement is declared to be for Lender's protection if, as, and when any court
holds that notice of Lender's priority of interest, to be effective against a
particular class of persons, including the Federal government and any
subdivisions or entity of the Federal government, must be perfected in the
manner required by the Code. Borrower agrees to execute and deliver on demand
such other security agreements, financing statements and other instruments as
Lender may request in order to perfect its security interest or to impose the
lien hereof more specifically upon any of such property.
Everything referred to in paragraphs (A), (B), (C), (D), (E) (F) and (G)
hereof and any additional property hereafter acquired by Borrower to be used in
connection with the Property and subject to the lien of this Mortgage or
intended to be so is herein referred to as the "Mortgaged Property."
TO HAVE AND TO HOLD the same, together with all and singular the tenements,
hereditaments and appurtenances thereunto belong-
ing or in anywise appertaining, and the reversion and reversions, remainder or
remainders, rents, issues, and profits thereof, and also all the estate, right,
title, interest, homestead, dower and right of dower, separate estate,
possession, claim and demand whatsoever, as well in law as in equity, of the
said Borrower in and to the same, and every part thereof, with the appurtenances
of the said Borrower in and to the same, and every part and parcel thereof unto
the said Lender in fee simple.
And the Borrower hereby covenants with the Lender, that the Borrower is
indefeasibly seized of the Land in fee simple; that the Borrower has full power
and lawful right to convey the same in fee simple as aforesaid; that the Land is
and will remain free from all encumbrances except taxes for the current year;
that said Borrower will make such further assurances to prove the fee simple
title to the Land in said Borrower as may be reasonably required, and that said
Borrower does hereby fully warrant the title to the Land, and every part
thereof, and will defend the same against the lawful claims of all persons
whomsoever.
PROVIDED ALWAYS, that if the Borrower shall well and truly pay said
indebtedness unto the Lender, and any renewals or extensions thereof, and the
interest thereon, together with all costs, charges and expenses, including a
reasonable attorney's fee, which the Lender may incur or be put to in collecting
the same by foreclosure, or otherwise, and shall duly, promptly, and fully
perform, discharge, execute, effect, complete, and comply with and abide by each
and every stipulation, agreement, condition, and covenant of the Note and of
this Mortgage, then this Mortgage and the estate hereby created shall cease and
be null and void.
And the Borrower hereby further covenants as follows:
1. PAYMENT. That Borrower will pay all and singular the principal and
interest and the various and sundry sums of money payable by virtue of the Note
and this Mortgage, each and every, promptly on the days respectively the same
severally become due. If any payment hereunder (other than the final payment)
is not made within ten (10) days after it is due, the Borrower shall pay to
Lender a late charge equal to five percent (5%) of the late payment. It is
further agreed that any sums, including without limitation payments of principal
and interest on said Note, which shall not be paid when due, subject to any
applicable grace and/or cure periods and whether becoming due by lapse of time
or by reason of acceleration under the provisions herein stated, shall bear
interest at the Penalty Rate as defined in the Note and shall be secured by the
lien of this Mortgage.
2. TAXES, ETC. That Borrower will pay, when due and before any penalty
attaches, all real estate taxes, tangible personal property taxes, assessments,
water rates, and other governmental or municipal charges, fines, or impositions,
on the Mortgaged Property for which provision has not been made herein-
before, and in default thereof the Lender may pay the same, and all such sums so
paid by the Lender shall be immediately due and payable, and shall be secured by
the lien of this Mortgage; and the Borrower will promptly deliver the official
receipts therefor to the Lender. On or before March 1st of each year during the
term of this Mortgage, the Borrower shall provide the Lender with paid receipts
evidencing the payment of all real estate and tangible personal property taxes
due with respect to the Mortgaged Property.
3. WASTE; REPAIRS. That Borrower will permit, commit, or suffer no
waste, impairment, or deterioration of the Mortgaged Property or any part
thereof; and in the event of the failure of the Borrower to keep any buildings
on said premises and those to be erected on the Mortgaged Property or
improvements thereon, in good repair, the Lender may, after giving the Borrower
written notice and ten (10) days to cure any such defects, make such repairs, as
in its discretion, it may deem necessary for the proper preservation thereof,
and the full amount of each and every such payment shall be immediately due and
payable, and shall be secured by the lien of this Mortgage.
4. USE AND ALTERATION OF MORTGAGED PROPERTY. Unless required by
applicable law or unless Lender has otherwise agreed in writing, Borrower shall
not allow changes in the nature of the occupancy for which the Mortgaged
Property was intended at the time this Mortgage was executed. Borrower shall
not initiate or acquiesce in a change in the zoning classification of the
Mortgaged Property without Lender's written consent. Borrower shall not make
any change in the use of the Mortgaged Property which will create a fire or
other hazard not in existence on the date hereof, nor shall Borrower in any way
increase any hazard. Without the prior written consent of Lender, no building
or improvement may be erected on the Land, nor may Borrower structurally remove
or demolish any building or improvement, nor may Borrower materially
structurally alter any building or improvement that would change the use of the
Mortgaged Property or that would otherwise decrease its value, nor shall any
fixture or chattel covered by this Mortgage be removed at any time unless
simultaneously replaced by an article of equal kind, quality and value owned by
Borrower, and which is unencumbered except by the lien of this Mortgage and
other instruments of security securing the Note.
5. SURFACE ALTERATION AND MINERAL RIGHTS. Borrower shall not consent to,
permit or indulge in any entry, either by itself or by any others, upon the
surface of the Land for the purpose of exploration, drilling, prospecting,
mining, excavation or removal of any earth, sand, dirt, rock, minerals, oil or
any other substance without the Lender's approval and written consent.
6. COLLECTION EXPENSES. All parties liable for the payment of the Note
agree to pay the Lender all costs incurred by
the Lender, whether or not an action be brought, in collecting the sums due
under the Note, enforcing the performance and/or protecting its rights under the
Loan Documents and in realizing on any of the security for the Note. Such costs
and expenses shall include, but are not limited to, reasonable attorneys, fees,
filing fees, costs of publication, deposition fees, stenographer fees, witness
fees, title search or abstract costs and other court and related costs incurred
or paid by Lender in any action, proceeding or dispute in which Lender is made a
part or appears as a party plaintiff or party defendant because of the failure
of the Borrower promptly and fully to perform and comply with all conditions and
covenants of this Mortgage, the Note secured hereby, or any other Loan Document,
including but not limited to, the foreclosure of this Mortgage, condemnation of
all or part of the Mortgaged Property, or any action to protect the security
thereof. Sums advanced by the Lender for the payment of collection costs and
expenses shall accrue interest at the Penalty Rate, as defined in the Note, from
the time they are advanced or paid by the Lender, and shall be due and payable
upon payment by Lender without notice or demand and shall be secured by the lien
of the Mortgage.
7. ATTORNEYS' FEES. All parties liable for the payment of the Note agree
to pay the Lender reasonable attorneys, fees incurred by the Lender, whether or
not an action be brought, in collecting the sums due under the Note, enforcing
the performance and/or protecting its rights under the Loan Documents and in
realizing on any of the security for the Note. Such reasonable attorneys, fees
shall include, but not be limited to, fees for attorney's, paralegal's, legal
assistant's, and expenses incurred in any and all judicial, bankruptcy,
reorganization, administrative receivership, or other proceedings effecting
creditor's rights and involving a claim under the Note or any Loan Document,
which such proceedings may arise before or after entry of a final judgment. Such
fees shall be paid regardless whether suit is brought and shall include all fees
incurred by Lender at all trial and appellate levels including bankruptcy court.
Sums advanced by the Lender for the payment of attorneys, fees shall accrue
interest at the Penalty Rate, as defined in the Note, from the time they are
advanced by the Lender, and shall be due and payable upon payment by Lender
without notice or demand and shall be secured by the lien of the Mortgage.
8. INSURANCE.
(a) TYPES OF COVERAGE; ASSIGNMENT; APPLICATION OF FUNDS. Borrower
shall keep the Mortgaged Property insured for the benefit of Lender against loss
or damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke; and such other hazards,
including, but not limited to, six (6) months business interruption insurance
covering loss of rents, revenues, income, profits or proceeds from leases,
franchises, concessions or licenses of
or on any part of the Mortgaged Property, as Lender may from time to time
require; all in amounts approved by Lender not less than one hundred percent
(100%) of full insurable value; all insurance herein provided for shall be in
form and underwritten by companies approved by Lender; and, regardless of the
types or amounts of insurance required and approved by Lender, Borrower shall
assign and deliver to Lender. All such policies of insurance and renewals
thereof which insure against any loss or damage to the Mortgaged Property shall
be held by the Lender and shall contain a non-contributory standard Mortgagee's
endorsement making losses payable to the Lender as its interest may appear.
Borrower shall furnish to Lender evidence of insurable value, upon request, at
no cost to Lender. The delivery of the insurance policies shall constitute an
assignment, as further security, of all unearned premiums existing from time to
time thereon. In event of loss, Borrower will give immediate notice by mail to
Lender, and Lender may make proof of loss if not made promptly by Borrower, and
each insurance company concerned is hereby authorized and directed to make
payment for such loss directly to Lender instead of to Borrower and Lender
jointly, and the insurance proceeds, or any part thereof, may be applied by
Lender either to the repayment of monies paid or advanced by Lender on behalf of
the Borrower, or to the payment of interest due on the Note, or to the payment
of principal due under the Note or to the restoration or repair of the Mortgaged
Property as the Lender, at its sole option, may elect.
(b) PUBLIC LIABILITY INSURANCE. The Borrower shall at all times
maintain public liability insurance and Workers Compensation policies insuring
against all claims for personal or bodily injury, death or property damage
occurring upon, in or about the Mortgaged Property in amounts not less than
$1,000,000.00 for injury or damage to any one person and $1,000,000.00 for
injury or damage from any one accident and $100,000.00 for property damage. Such
insurance coverage shall be in form and with companies approved by the Lender.
Borrower shall furnish to Lender evidence that such insurance is in effect, upon
request, at no cost to Lender. All such policies shall name Lender as an
additional insured.
(c) FLOOD INSURANCE. If required, insurance under the Federal Flood
Insurance program shall be maintained at all times within the minimum
requirements and amounts required under said program for federally financed or
assisted loans under the Flood Disaster Protection Act of 1973, as amended.
(d) MINIMUM INSURANCE COVERAGE. In the absence of written direction
from Lender, the insurance amount required herein shall not be less than such
amount as may be required to prevent Borrower from becoming co-insurer under the
terms of any applicable policy, or the amount of the indebtedness secured
hereby, whichever is greater.
(e) RENEWAL. Not less than thirty (30) days prior to the expiration
date of each policy of insurance required of Borrower pursuant to this
paragraph, and of each policy of insurance held as additional collateral to
secure the indebtedness secured hereby, Borrower shall deliver to Lender a
renewal policy or policies marked "premium paid" or accompanied by other
evidence of payment satisfactory to Lender.
(f) NOTICE OF CANCELLATION. All policies of insurance shall provide
that no cancellation, reduction in amount or material change in coverage thereof
shall be effective until at least thirty (30) days after receipt by Lender and
Borrower of written notice thereof.
(g) FORECLOSURE; SUCCESSOR IN INTEREST. In the event of a
foreclosure of this Mortgage, or other transfer of title to the Mortgaged
Property in extinguishment of the indebtedness secured hereby, the purchaser of
the Mortgaged Property shall succeed to all the rights of Borrower, including
any right to unearned premiums, in and to all policies of insurance assigned and
delivered to Lender, with respect to all property herein encumbered.
(h) FAILURE TO PROVIDE INSURANCE. Borrower agrees to deliver to
Lender, within ten (10) days from the date of this Agreement, evidence of the
required insurance as provided above, with an effective date of September 30,
1996, or earlier. Borrower acknowledges and agrees that if Borrower fails to
provide any required insurance or fails to continue such insurance in force,
Lender may do so at Borrower's expense as provided in the security documents.
The cost of any such insurance, at the option of Lender, shall be (1) payable on
demand; (2) be added to the balance of the Loan and be apportioned among and be
payable with any installment payments to become due during either (a) the terms
of any applicable insurance policy or (b) the remaining term of the Loan; or (3)
be treated as a balloon payment which will be due and payable at the Loan's
maturity. Any amount expended by Lender will bear interest at the rate of
charged under the Loan from the date incurred or paid by Lender to the date of
full repayment by Borrower.
BORROWER ACKNOWLEDGES THAT IF LENDER SO PURCHASES ANY SUCH INSURANCE, THE
INSURANCE WILL PROVIDE LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE REAL
ESTATE, UP TO THE BALANCE OF THE LOAN; HOWEVER, BORROWER'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.
9. EVENTS OF DEFAULT. The occurrence of any of the following constitutes
an Event of Default by Borrower under this
Mortgage and, at the option of the Lender, under the Loan Documents:
(a) SCHEDULED PAYMENT. Borrower's failure to make any payment
required by the Note within ten (10) days of the due date thereof, without
further notice or demand.
(b) MONETARY DEFAULT. Borrower's failure to make any other payment
required by this Mortgage, or the other Loan Documents, or both, within ten (10)
days after written demand therefor.
(c) OTHER. Borrower's continued failure to perform any other
obligation imposed upon Borrower by this Mortgage, for a period of ten (10) days
after written demand; provided (i) if Borrower reasonably cannot perform within
such ten (10) day period, and in Lender's judgment, Lender's security reasonably
will not be impaired, Borrower may have such additional time to perform as
Borrower reasonably may require, provided and for so long as Borrower proceeds
with due diligence to cure said default; and (ii) if Lender's security
reasonably will be materially impaired if Borrower does not perform in less than
ten (10) days, Borrower will have only such period following written demand in
which to perform as Lender reasonably may specify.
(d) REPRESENTATION. Any verbal or written representation, statement
or warranty of Borrower, any co-signer, endorser, surety or guarantor of the
Note, contained in the Note, this Mortgage or any other Loan Document, or in any
certificate delivered pursuant hereto, or in any other instrument or statement
made or furnished in connection herewith, proves to be incorrect or misleading
in any material respect as of the time when the same shall have been made,
including, without limitation, any and all financial statements furnished by
Borrower to Lender as an inducement to Lender's making the loan evidenced by the
Note or pursuant to any provision of this Mortgage.
(e) DEATH/INCOMPETENCY/INSOLVENCY. The dissolution or insolvency
of, the appointment of a receiver by or on the behalf of, the assignment for
the benefit of creditors by or on behalf of, the voluntary or involuntary
termination of existence by, or the commencement under any present or future
federal or state insolvency, bankruptcy, reorganization, composition or
debtor relief law by or against, Borrower.
(f) INSECURITY. A good faith determination by Lender at any time
that Lender is insecure, that the prospect of any payment is impaired or that
the collateral securing the Note is insecure provided however, Lender shall not
be unreasonable, arbitrary or capricious in making this determination.
(g) TRANSFER OF ASSETS. A transfer of a substantial part of
Borrower's money or property.
(h) DEFAULT UNDER LEASE. A failure of the Tenant to pay rent due
under the Lease within thirty (30) days after its due date or the existence of
any other event of default under the Lease which is not cured within thirty (30)
days; provided, however, that no such Event of Default will be deemed to have
occurred if the Borrower shall have re-leased the Mortgaged Property to another
tenant at a rental rate which shall provide a minimum of 1:1 debt service
coverage.
(i) DEFAULT UNDER LOAN DOCUMENT. An Event of Default under any Loan
Document exists and continues beyond any applicable cure period.
10. REMEDIES. Upon the occurrence of any default continuing beyond any
applicable curative period under this Mortgage, as provided in the preceding
paragraph, Lender may exercise any one or more of the following rights and
remedies, in addition to all other rights and remedies otherwise available at
law or in equity:
(a) OTHER DOCUMENTS. To pursue any right or remedy provided by the
Loan Documents including the right to xxx for collection of all sums due and
payable in connection with the indebtedness secured hereby.
(b) ACCELERATION. To declare the entire unpaid amount of the
indebtedness secured hereby immediately due and payable.
(c) FORECLOSURE. To foreclose the lien of this Mortgage, and obtain
possession of the Mortgaged Property, or either, by any lawful procedure.
(d) CODE RIGHTS. To exercise any right or remedy available to Lender
as a secured party under the Code, as it from time to time is in force and
effect, with respect to any portion of the Mortgaged Property or the Intangible
Collateral then constituting property subject to the provisions of the Code; or
Lender, at its option, may elect to treat the Mortgaged Property or the
Intangible Collateral, or any combination, as real property, or an interest
therein, for remedial purposes.
(e) RECEIVER. To apply, on ex parte motion to any court of competent
jurisdiction, for and obtain the appointment of a receiver to take charge of,
manage, preserve, protect, complete construction of, and operate the Mortgaged
Property, and any business or businesses situated thereon, or any combination;
to collect the rents; to make all necessary and needed repairs; to pay all
taxes, assessments, insurance premiums, and all other costs incurred in
connection with the Mortgaged Property; and, after payment of the expenses of
the receivership, including
reasonable attorneys, and legal assistants, fees, and after compensation to the
receiver for management and completion of the Mortgaged Property, to apply all
net proceeds derived therefrom in reduction of the indebtedness secured hereby
or in such other manner as the court shall direct. The appointment of such
receiver shall be a matter of strict right to Lender, regardless of the adequacy
of the security or of the solvency of any party obligated for payment of the
indebtedness secured hereby. All expenses, fees, and compensation incurred
pursuant to any such receivership shall be secured by the lien of this Mortgage
until paid. The receiver, personally or through agents, may exclude Borrower
wholly from the Mortgaged Property and have, hold, use, operate, manage, and
control the Mortgaged Property, and may in the name of Borrower exercise all of
Borrower's rights and powers to maintain, construct, operate, restore, insure,
and keep insured the Mortgaged Property in such manner as such receiver deems
appropriate.
(f) OTHER SECURITY. Lender may proceed to realize upon any and all
other security for the indebtedness secured hereby in such order as Lender may
elect; and no such action, suit, proceeding, judgment, levy, execution, or other
process will constitute an election of remedies by Lender, or will in any manner
alter, diminish, or impair the lien and security interest created by this
Mortgage, unless and until the indebtedness secured hereby is paid in full.
(g) ADVANCES. To advance such monies, and take such other action, as
is authorized by Paragraphs 2, 3 and 8 above. All such advances shall bear
interest at the Penalty Rate, as defined in the Note, and shall be immediately
due and payable by Borrower to Lender without demand therefor, and such advances
together with interest and costs accruing thereon shall be secured by this
Mortgage.
11. EXERCISE OF REMEDIES. The remedies of Lender as provided in the Loan
Documents, shall be cumulative and concurrent and may be pursued singly,
successively or together, at the sole discretion of Lender, and may be exercised
as often as occasion therefor shall arise. No act, or omission or commission or
waiver of Lender, including specifically any failure to exercise any right,
remedy or recourse, shall be effective unless set forth in a written document
executed by Lender and then only to the extent specifically recited therein. A
waiver or release with reference to one event shall not be construed as
continuing, as a bar to, or as a waiver or release of, any subsequent right,
remedy or recourse as to any subsequent event.
12. EMINENT DOMAIN. If at any time all, or any portion, of the Mortgaged
Property shall (i) be taken or damaged by condemnation proceedings under the
power of eminent domain, or (ii) be the subject of an inverse condemnation
action, all compensation awarded or otherwise paid shall be paid directly to the
Lender
and applied to the repayment of monies paid or advanced by the Lender on behalf
of the Borrower, or to the payment of interest due on the Note, or to the
payment of principal due under the Note as the Lender, at its sole option, may
elect.
13. CONSENT TO TRANSFER. In the event the Borrower, without the prior
written consent of the Lender, (a) shall sell, convey, transfer (including a
transfer by agreement for deed or land contract) the Mortgaged Property or any
part thereof or any interest therein, or (b) shall be divested of title or any
interest in the Mortgaged Property in any manner or way, whether voluntary or
involuntary, or (c) enters into an oral or written agreement to lease the entire
fee simple interest of the Mortgaged Property (and not simply the improvements
or buildings located thereon) not in the ordinary course of business or (d)
further encumbers the Mortgaged Property then the entire balance of the
indebtedness evidenced by the Note shall be accelerated and become immediately
due and payable, at the option of the Lender upon ten (10) days written notice
to the Borrower. In the event the Lender elects to accelerate the entire
balance of the indebtedness, the Lender shall have no obligation to allege or
show any impairment of its security and may pursue any legal or equitable
remedies for default in such payment without allegation or showing. It is
specifically understood by the parties that as a condition of granting its
approval required by this paragraph, the Lender may adjust the interest rate
stated in the Note.
14. FUTURE ADVANCES. Upon request of Borrower, Lender, at Lender's
option, within twenty (20) years from date of this Mortgage, may make future
advances to Borrower. It is hereby specifically agreed that any sum or sums
which may be loaned or advanced by the Lender to the Borrower at any time after
the recording of this Mortgage, together with interest thereon at the rate
agreed upon at the time of such loan or advance, shall be equally secured with
and have the same priority as the original indebtedness and be subject to all
the terms and provisions of this Mortgage, providing that the aggregate amount
of principal outstanding at any time shall not exceed an amount equal to two and
one-half (2 1/2) times the principal amount originally secured hereby.
15. FINANCIAL STATEMENTS. The Borrower will keep its books of account in
accordance with generally accepted accounting practices.
16. ENVIRONMENTAL AGREEMENT. Borrower and Lender have executed an
Environmental Agreement of even date herewith which by reference is made a part
hereof.
Any breach of any warranty, representation or agreement contained in
this Section shall be a default hereunder and shall
entitle Lender to exercise any and all remedies provided in this Mortgage or
otherwise permitted by law.
The provisions of this paragraph will survive the foreclosure of this
Mortgage or any deed in lieu of foreclosure delivered to Lender by Borrower.
17. AFTER ACQUIRED PROPERTY. Without the necessity of any further act of
Borrower or Lender, the lien of, and security interest created by, this Mortgage
automatically will extend to and include (i) any and all renewals, replacements,
substitutions, accessions, proceeds, products, or additions of or to the
Mortgage Property, the Rents, and the Intangible Collateral, and (ii) any and
all monies and other property that from time to time may, either by delivery to
Lender or by any instrument (including this Mortgage) be subjected to such lien
and security interest by Borrower, or by anyone on behalf of Borrower, or with
the consent of Borrower, or which otherwise may come into the possession or
otherwise be subject to the control of Lender pursuant to this Mortgage, or the
Loan Documents, or both.
18. APPRAISAL. Notwithstanding any term or provision hereof to the
contrary, if at any time the Lender in its sole discretion reasonably believes
that the value of the Mortgaged Property may have declined or that the value of
the Mortgaged Property is less than the value utilized by the Lender at the time
of loan approval or renewal, within thirty (30) days from Lender's written
request to Borrower therefor, Borrower shall provide Lender, at Borrower's sole
cost and expense, a current appraisal of the Mortgaged Property to be ordered by
the Lender from an appraiser designated by Lender and in form and content as
required by Lender. Borrower shall cooperate fully with any such appraiser and
provide all such documents and information as such appraiser may request in
connection with such appraiser's performance and preparation of such appraisal.
Borrower's failure to promptly and fully comply with Lender's requirements under
this paragraph shall, without further notice, constitute an Event of Default
under this Mortgage, the Note and the other Loan Documents.
19. INSPECTION. Lender shall be entitled to inspect the Mortgaged
Property at all reasonable times and Borrower agrees to permit Lender, or its
agents or employees, access to the Mortgaged Property for such purpose.
20. CHOICE OF LAW AND VENUE. This Mortgage shall be governed by the Laws
of the State of Florida, and the United States of America, whichever the context
may require or permit. The Borrower and all guarantors, if any, expressly agree
that proper venue for any action which may be brought under this Mortgage in
addition to any other venue permitted by law shall be any county in which
property encumbered by the Mortgage is located as well as Brevard County,
Florida. Should Lender insti-
tute any action under this Mortgage, the Borrower and all guarantors, if any,
hereby submit themselves to the jurisdiction of any court sitting in Florida.
21. DEBTOR-CREDITOR RELATIONSHIP ONLY. It is understood by and between
Lender and its successors, or assigns, and the Borrower, that the funds received
on the Note which are secured by this Mortgage create the relationship of Lender
and Borrower, and it is not the intention of the parties to create the
relationship of a partnership, a joint venture or syndicate, or mutual
enterprise or endeavor.
22. TAXES ON NOTE AND MORTGAGE. To pay any and all taxes which may be
levied or assessed directly or indirectly upon the Note and this Mortgage
(except for income taxes payable by the holder thereof) or the debt secured
hereby, without regard to any law which may be hereafter enacted imposing
payment of the whole or any part thereof upon the Lender, its successors or
assigns. Upon violation of this agreement, or upon the rendering by any court
of competent jurisdiction of a decision that such an agreement by the Borrower
is legally inoperative, or if any court of competent jurisdiction shall render a
decision that the rate of said tax when added to the rate of interest provided
for in said Mortgage Note exceeds the then maximum rate of interest allowed by
law, then, and in any such event, the debt hereby secured shall, at the option
of the Lender, its successors or assigns, become immediately due and payable,
anything contained in this Mortgage or in the Note secured hereby
notwithstanding, without the imposition of premium or penalty. The additional
amounts which may become due and payable hereunder shall be part of the debt
secured by this Mortgage.
23. TIME OF THE ESSENCE. Time is of the essence with respect to each
provision of this Mortgage where a time or date for performance is stated. All
time periods or dates for performance stated in this Mortgage are material
provisions of this Mortgage.
24. CAPTIONS AND PRONOUNS. The captions and headings of the various
sections of this Mortgage are for convenience only, and are not to be construed
as confining or limiting in any way the scope or intent of the provisions
hereof. Whenever the context requires or permits, the singular shall include
the plural, the plural shall include the singular, and the masculine, feminine
and neuter shall be freely interchangeable.
25. INDEMNIFICATION AGREEMENT. The Borrower hereby indemnifies the law
firm of GRAY, HARRIS & XXXXXXXX, P.A., and all of its attorneys, including, but
not limited to D. A. NOHRR, ESQ., from any and all loss, cost, expense, damage
or claim, whether or not valid, including attorneys, fees and disbursements,
arising under or in any way connected with Section 697.10 of the Florida
Statutes or any similar law. The Borrower hereby verifies and
confirms all factual information in this Mortgage, including the accuracy and
correctness of the legal description set forth herein. In the event any factual
errors are found in this Mortgage or in the legal description, the Borrower
shall, at its own cost and expense, promptly correct or cause to be corrected
subsequent to the date hereof any and all such errors with no further liability
incurred by counsel for either the Borrower or the Lender. The Borrower shall
promptly pay or cause to be paid all damages, claims or any other costs
whatsoever arising out of any impairment of title due to or caused by any
inaccuracy or incorrectness of the legal description set forth herein.
Notwithstanding the foregoing, all rights are preserved against the Lender's
title insurer, the surveyor, the engineer, if any, and the appraiser, if any,
and after payment is made by the Borrower, the Borrower shall be subrogated to
such rights.
26. NON-HOMESTEAD. The Borrower has never resided on the Land and the
Land does not now nor has it ever constituted the constitutional homestead of
the Borrower.
27. TRUTH-IN-LENDING PROVISION. The Borrower hereby represents and
certifies that the extension of credit secured by this Mortgage is exempt from
any and all provisions of the Federal Consumers Credit Protection Act (Truth-in-
Lending Act) and Regulation "Z" of the Board of Governors of the Federal Reserve
System; because it is an organization fully excluded therefrom, and/or also
because the loan or credit represented by this Mortgage and the Note is only for
business or commercial purposes of the Borrower other than agricultural purposes
and the proceeds of the loan are not being used for personal, family, household
or agricultural purposes.
28. NOTICE. Any written notice, demand or request that is required to be
made in any of the Loan Documents shall be served in person, or by registered or
certified mail, return receipt requested, or by express mail or similar courier
service, addressed to the party to be served at the address set forth in the
first paragraph hereof. The addresses stated herein may be changed as to the
applicable party by providing the other party with notice of such address change
in the manner provided in this paragraph. In the event that written notice,
demand or request is made as provided in this paragraph, then in the event that
such notice is returned to the sender by the United States Postal Service
because of insufficient address or because the party has moved or otherwise,
other than for insufficient postage, such writing shall be deemed to have been
received by the party to whom it was addressed on the date that such writing was
initially placed in the United States Postal Service or courier service by the
sender.
29. WAIVER OF TRIAL BY JURY. The Borrower and the Lender knowingly,
voluntarily and intentionally waive the right either may have to a trial by jury
in respect of any litigation based
hereon, or arising out of, under or in connection with this Mortgage and any
agreement contemplated to be executed in conjunction herewith, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of
either party. This provision is a material inducement for the Lender entering
into the loan evidenced by this Mortgage.
The covenants herein contained shall bind, and the benefits and advantages
shall inure to, the respective heirs, executors, administrators, successors, and
assigns of the parties hereto. Whenever used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include all
genders.
IN WITNESS WHEREOF, the Borrower has executed these presents the day and
year first above written in manner and form sufficient to be binding.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
BORROWER:
[SEAL]
XXXXXX INDUSTRIES, INC., a Florida
corporation
/s/ Xxxxxx X. Nohrr By: /s/ Xxxxx X. Xxxxxx
-------------------------------- --------------------------------
Witness Signature XXXXX X. XXXXXX, President
Xxxxxx X. Nohrr Address: 0000 X. Xxxxxxxxxx Xxx.
-------------------------------- Xxxxxxxxxx, XX 00000
Print Witness Name
/s/ Xxxxx X. Xxxxx
--------------------------------
Witness Signature
Xxxxx X. Xxxxx
--------------------------------
Print Witness Name
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
THE FOREGOING INSTRUMENT was acknowledged before me this 30th day of
September, 1996, by XXXXX X. XXXXXX, as President of XXXXXX INDUSTRIES, INC., a
Florida corporation, who is personally known to me, or who produced Fl. Driver's
License as identification, and who did take an oath.
/s/ Xxx Xxxxx Xxxxxx
__________________________________
Notary Public Signature
My commission expires:
July 22, 1999 Xxx Xxxxx Xxxxxx
LEGAL DESCRIPTION
PARCEL A:
A parcel of land lying in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 35 East, Brevard
County, Florida, being a portion of Lots 27, 28, 29, 30, 31, 32, 33 and 34 of
the PLAT OF SECOND ADDITION TO INDIAN RIVER CITY, FLORIDA as recorded in Plat
Book 2, page 73, of the Public Records of Brevard County, Florida, together with
a portion of Government Lot 2 of said Section 26, all of which is lying West of
the Westerly right-of-way line of State Road No. 5 (a 200.00 foot wide right-of-
way as described in Official Records Book 515, pages 513 and 515 of said Public
Records) and East of the Easterly right-of-way line of The Florida East Coast
Railway Company (A 100.00 foot wide right-of-way as currently existing), being
more particularly described as follows:
Begin at the intersection of the North line of Lot 27 of said PLAT OF SECOND
ADDITION TO INDIAN RIVER CITY, with the Westerly right-of-way line of said State
Road No. 5, said point being the Point-of-Beginning of the herein described
parcel; thence run 5.00 degrees 04'48"W., along said Westerly right-of-way line
a distance of 568.86 feet to the Point-of-Curvature of a circular curve to the
left having a radius of 2,964.93 feet; thence continue Southerly along said
right-of-way line and the arc of said curve through a central angle of 03
degrees 03'07" for a distance of 157.93 feet; thence N. 89 degrees 25'12" W.,
parallel with and 25.00 feet North of by perpendicular measurement from the
North line of the lands described in Official Records Book 642, pages 978, 979
and 980 of said Public Records a distance of 250.00 feet; thence N 00 degrees
34'48" E., perpendicular to said North line a distance of 439.61 feet to a point
lying on the Northerly line of a 10.00 foot wide Florida Gas Transmission
Company Easement as recorded in Official Records Book 665, pages 458 and 459 of
said Public Records, also being the Northerly right-of-way line of a vacated
40.00 foot wide railroad spur line thence N. 52 degrees 21'36" W., along said
Northerly right-of-way line of vacated railroad spur line a distance of 306.59
feet to a point lying on the South line of Lot 27 of said PLAT OF SECOND
ADDITION TO INDIAN RIVER CITY; thence N. 69 degrees 41'21" W., along said South
line of Lot 27 a distance of 101.72 feet to a point lying on the Easterly
right-of-way line of said Florida East Coast Railway Company, said point also
lying on the arc of a circular curve concave in the Northeast with a radial
bearing of S. 63 degrees 18'40" W., and having a radius of 2,814.66 feet, thence
Northwesterly along said Easterly right-of-way line and the arc of said curve
through a central angel of 02 degrees 15'45" for a distance of 111.15 feet to
the Northwest corner of Lot 27 of said PLAT OF SECOND ADDITION TO INDIAN RIVER
CITY; thence S. 89 degrees 41'21" E., along the North line of said Lot 27 a
distance of 634.80 feet to the Point-of-Beginning of the described parcel.
PARCEL B:
A parcel of land lying in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 35 East, Brevard
County, Florida, being a portion of Lots 27, 28, 29, 30, 31, 32, 33 and 34 of
the PLAT OF SECOND ADDITION TO INDIAN RIVER CITY, FLORIDA as recorded in Plat
Book 2, page 73, of the Public Records of Brevard County, Florida, together with
a portion of Government Lot 2 of said Section 26, all of which is lying West of
the Westerly right-of-way line of State Road No. 5 (a 200.00 foot wide right-of-
way as described in Official Records Book 515, pages 513 and 515 of said Public
Records) and East of the Easterly right-of-way line of the Florida East Coast
Railway Company (a 100.00 foot wide right-of-way as currently existing), being
more particularly described as follows:
Commence at the intersection of the North line of Lot 27 of said PLAT OF SECOND
ADDITION TO INDIAN RIVER CITY, with the Westerly right-of-way line of said
Xxxxx Xxxx Xx. 0 and run S. 00 degrees 04'48" W., along said Westerly
right-of-way line a distance of 568.86 feet to the Point-of-Curvature of a
circular curve to the left having a radius of 2,964.93 feet; thence continue
Southerly along said right-of-way line and the arc of said curve through a
central angle of 03 degrees 03'07" for a distance of 157.93 feet to the
Point-of-Beginning of the herein described parcel; thence continue Southerly
along the arc of said curve through a central angle of 00 degrees 29'03" for a
distance of 25.05 feet to the Northeast corner of the lands described in
Official Records Book 642, pages 978, 979 and 980 of said Public Records,
thence N. 89 degrees 25'12" W., along the North line of said lands a distance
of 336.01 feet to a point lying on the Easterly right-of-way line of said
Florida East Coast Railway Company, said point also lying on the arc of a
circular curve concave to the Southwest with a radial bearing of N. 72 degrees
10'13" E., and having a radius of 5,808.32 feet, thence Northwesterly along said
Easterly right-of-way line and the arc of said curve through a central angle of
03 degrees 10'32" for a distance of 524.67 feet to the Point-of-Tangency of
said curve; thence N. 23 degrees 00'20" W., continuing along said Easterly
right-of-way line a distance of 199.35 feet to a point lying on the arc of a
circular curve concave to the Northeast with a radial bearing of S. 62 degrees
09'48" W., and having a radius of 2,814.66 feet; thence Northwesterly along said
Easterly right-of-way line and the arc of said curve through a central angle of
01 degrees 08'52" for a distance of 56.38 feet to the Southwest corner of Lot
27 of said PLAT OF SECOND ADDITION TO INDIAN RIVER CITY; thence S. 89 degrees
42'21" E., along the South line of said Lot 27 a distance of 101.72 feet to a
point lying on the Northerly line of a 10.00 foot wide Florida Gas Transmission
Company Easement as recorded in Official Records Book 665, pages 458 and 459 of
said Public Records, also being the Northerly right-of-way line of a vacated
40.00 foot wide railroad spur line; thence S. 52 degrees 21'36" E., along said
Northerly right-of-way line of vacated railroad spur line a distance of 306.59
feet; thence S. 00 degrees 34'48" W., perpendicular to the North line of the
lands described in Official Records Book 642, pages 978, 979 and 980 of said
Public Records a distance of 439.61 feet; thence S. 89 degrees 25'12" E.,
parallel with and 25.00 feet North of by perpendicular measurement from said
North line a distance of 250.00 feet to the Point-of-Beginning of the described
parcel.
Parcel 1
The North 154 feet of the following described property:
Start at the SW corner of Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx
35 East, Brevard County, Florida; thence run S. 89 deg. 25'12"E. on the South
line of said Lot 2, 429.50 feet to the East Right-of-Way line of Florida East
Coast Railway as relocated; thence N. 15 deg. 51'12"W., 208.52 feet along said
East Right-of-Way line to the P.O.B., and the SW corner of lands herein
described, thence continue on East Right-of-Way aforesaid N. 15 deg. 51'12"W.,
228.32 feet; thence N. 16 deg. 7'22"W., 189.15 feet on a chord of a curve whose
radius is 5,789.65 feet, concave to the Southwest with an angle of 1 deg.
52'19"; thence departing from the F.E.C. R/W S. 89 deg. 25'12"E., 336.34 feet to
the West Right-of-Way of U.S. Highway #1, as relocated; thence along said Xxxx
Xxxxx-xx-Xxx xx X.X. Xxxxxxx #0, X. 5 deg. 23'14"E., 201.10 feet on a chord of a
curve whose radius is 2,964.93 feet, an angle of 3 deg. 53'13", concave to the
NE; thence continue on the same curve S. 9 deg. 17'33"E., 203.00 feet on the
chord of a curve, radius 2,964.93 feet, angle 3 deg. 55'25", thence N. 89 deg.
25'12"W., 270.56 feet to the Point of Beginning.
Containing 1.12 acres of land, more or less.
Parcel 2
Start at the SW corner of Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx
35 East, Brevard County, Florida; thence run S. 89 deg. 25'12"E. on the South
line of said Lot 2, 429.50 feet to the East Right-of-Way line of Florida East
Coast Railway as relocated; thence N. 15 deg. 51'12"W., 208.52 feet along said
East Right-of-Way line to the P.O.B., and the SW corner of lands herein
described; thence continue on East Right-of-Way aforesaid N. 15 deg. 51'12"W.,
228.32 feet; thence N. 16 deg. 47'22"W., 189.15 feet on a chord of a curve whose
radius is 5,789.65 feet, concave to the Southwest with an angle of 1 deg.
52'19"; thence departing from the F.E.C. R/W S. 89 deg. 25'12"E., 336.34 feet to
the West Right-of-Way of U.S. Highway #1, as relocated; thence along said Xxxx
Xxxxx-xx-Xxx xx X.X. Xxxxxxx #0, X. 5 deg. 23'14"E., 201.10 feet on a chord of a
curve whose radius is 2,964.93 feet, an angle of 3 deg. 53'13" concave to the
NE; thence continue on the same curve S. 9 deg. 17'33"E., 203.00 feet on the
chord of a curve, radius 2,964.93 feet, angle 3 deg. 55'25", thence N. 89 deg.
25'12"W., 270.56 feet to the Point of Beginning; Less and except the North 154
feet as described in Official Records Book 2431, Page 2184, of the Public
Records of Brevard County, Florida.
Containing 1.61 acres of land, more or less.
