MORTGAGE AND SECURITY AGREEMENT
Exhibit 10.5
PREPARED
BY AND, AFTER
RECORDING,
RETURN TO:
Cole,
Schotz, Meisel, Xxxxxx & Xxxxxxx, P.A.
Court
Plaza North
00
Xxxx
Xxxxxx
X.X.
Xxx
000
Xxxxxxxxxx,
Xxx Xxxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
THIS
MORTGAGE, made as of this 20th day of April, 2007, by
COSTA XXXXXX XX REAL ESTATE, LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, XXXXX
XXXXXX III REAL ESTATE, LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, TDS
TOWN HOMES (PHASE 1), LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, TDS
TOWN HOMES (PHASE 2), LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000 and TDS
AMENITIES, INC.,
a
Florida corporation having an address at 0000 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx
00000 (collectively, “Mortgagor”), and XXXXXXX
FUNDING, INC.,
a New
Jersey corporation, having an office at Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000, as agent (“Agent”) for the lenders identified in
Schedule A of the Note (as hereinafter defined) (Agent and the said lenders
are
hereinafter collectively referred to as “Mortgagee”).
W
I T N E S S E T H
WHEREAS,
Mortgagee has agreed to lend and Mortgagor has agreed to borrow the principal
sum of TWENTY
FOUR MILLION NINE HUNDRED THOUSAND ($24,900,000) DOLLARS
(“Loan”), on the terms and conditions provided herein and in the Loan Documents
(as hereinafter defined);
WHEREAS,
Mortgagor has executed and delivered to Mortgagee, among other things, that
certain Loan and Security Agreement (“Loan Agreement”) and that certain
Promissory Note (“Note”) both of even date herewith, evidencing the Loan;
and
WHEREAS,
Mortgagor expects to derive benefit from the Loan and has agreed to secure
the
Loan by, among other things, the grant of this Mortgage to
Mortgagee.
NOW,
THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that in order to secure Mortgagor’s
obligations under the Loan Documents, including the payment of principal and
interest, late fees, attorneys’ fees, costs and disbursements, the full and
prompt payment and performance of all of the indebtedness, obligations,
covenants, agreements and liabilities of Mortgagor to Mortgagee, together with
all interest and other charges thereon, whether direct or indirect, existing,
contingent or otherwise, due or to become due, under or arising out of or in
connection with the Loan Agreement and any future modifications thereof and
any
other instruments or documents delivered in connection herewith or therewith
and
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, Mortgagor has mortgaged, granted, bargained, sold,
conveyed, aliened, released, transferred, warranted and confirmed, and does
hereby mortgage, grant, bargain, sell, convey, alien, release, transfer, warrant
and confirm unto Mortgagee, and to all its successors and assigns forever,
the
following described property (collectively, the “Property”):
A. The
real
estate located in County of Polk, State of Florida (the “State”) more
particularly described in Exhibit
A
attached
hereto and made a part hereof for all purposes the same as if set forth herein
verbatim, together with all right, title and interest of Mortgagor in and to
(a)
all streets, roads, alleys, easements, rights-of-way, licenses, rights of
ingress and egress, vehicle parking rights and public places, existing or
proposed, abutting, adjacent, used in connection with or pertaining to the
real
property or the Improvements (as hereinafter defined); (b) any strips or gores
between the real property and abutting or adjacent properties; and (c) all
water
and water rights, timber, crops and mineral interests pertaining to the real
property (such real estate and other rights, titles and interests being
hereinafter sometimes called “Land”);
B. All
buildings, structures and other improvements or any part thereof, now or
hereafter situated on or under the Land and all restorations and replacements
thereof (“Improvements”);
C. All
fixtures and systems and articles of personal property, of every kind and
character, now owned or hereafter acquired by Mortgagor (Mortgagor’s successors
or assigns), which are now or hereafter attached to the Land or the Improvements
and owned by Mortgagor, or used in or necessary to complete the proper planning,
development, use, occupancy or operation thereof, or acquired (whether delivered
to the Land or stored elsewhere) for use or installation in or on the Land
or
the Improvements, and all renewals and replacements of, substitutions for and
additions to the foregoing, including, but without limiting the foregoing,
all
of the following items now owned or hereafter acquired by Mortgagor, any and
all
fixtures, systems, heating, ventilating, air conditioning, refrigerating,
plumbing, water, sewer, lighting, generating, cleaning, storage, incinerating,
waste disposal, sprinkler, fire extinguishing, communications, transportation
(of people or things, including, but not limited to, stairways, elevators,
escalators and conveyors), data processing, security and alarm, laundry, food
or
drink preparation, storage of serving, gas, electrical and electronic, water,
and recreational uses or purposes; all tanks, pipes, wiring, conduits, ducts,
doors, partitions, floor coverings, wall coverings, windows, window screens
and
shades, awnings, fans, motors, engines and boilers; motor vehicles; decorative
items and art objects; and files , records and books of account (all of which
are herein sometimes referred to together as “Accessories”);
D. All
(a)
plans and specifications for the Improvements; (b) contracts relating to the
Land or the Improvements or the Accessories or any part thereof; (c) deposits
including, but not limited to, Mortgagor’s rights in tenants’ security deposits
(if any), deposits with respect to utility services to the Land or the
Improvements or the Accessories or any part thereof, and any deposits or
reserves hereunder or under any other Loan Document (as hereinafter defined)
for
taxes, insurance or otherwise, funds, accounts, contract rights, instruments,
documents, commitments, general intangibles, notes and chattel paper used in
connection with or arising from or by virtue of any transactions related to
the
Land or the Improvements or the Accessories or any part thereof; (d) permits,
licenses, franchises, bonds, certificates and other rights and privileges
obtained in connection with the Land or the Improvements or the Accessories
or
any part thereof; (e) leases, rents, royalties, bonuses, issues, profits,
revenues and other benefits of the Land, the Improvements and the Accessories;
and (f) other properties, rights, titles and interests, if any, specified in
any
Section or any Article of this Mortgage as being part of the
Property;
E. All
proceeds, products, consideration, compensation and recoveries, direct or
consequential, cash and noncash, of or arising from, as the case may be, (a)
the
properties, rights, titles and interests referred to above in paragraphs (A),
(B), (C) and (D); (b) any sale, lease or other disposition thereof; (c) each
policy of insurance relating thereto (including premium refunds); (d) the taking
thereof or of any rights appurtenant thereto by eminent domain or sale in lieu
thereof for public or quasi-public use under any law; and (e) any damage thereto
whether caused by such a taking (including change of grade of streets, curb
cuts
or other rights of access) or otherwise caused; and
F. All
other
interests of every kind and character, and proceeds thereof, which Mortgagor
now
has or hereafter acquires in, to or for the benefit of the properties, rights,
titles and interests referred to above in paragraphs (A), (B), (C), (D), (E)
and
all property used or useful in connection therewith, including, but not limited
to, remainders, reversions and reversionary rights or interests that apply
to
the Property.
TO
HAVE
AND TO HOLD the Property, unto Mortgagee and Mortgagee’s successors, substitutes
or assigns, for the uses and purposes herein set forth, forever, together with
all rights, privileges, hereditaments and appurtenances in anyway appertaining
or belonging thereto, subject only to the “Permitted Encumbrances” includes both
(i) listed on Exhibit
B
attached
hereto to the extent that the same are valid, subsisting and affect the
Property, free from all rights and benefits under and by virtue of any
applicable homestead exemption or similar laws, which said rights and benefits
Mortgagor does hereby expressly release and waive, and (ii) that certain loan
in
the combined
amount of up to Twenty Five Million ($25,000,000) Dollars to Xxxxxxxxx
International Bank and Resorts Funding Group, LLC.
PROVIDED
ALWAYS, that these presents are upon the express condition, that if Mortgagor
shall pay unto Mortgagee, its successors or assigns, all Indebtedness due under
the terms of the Loan Documents and shall pay and perform the Obligation (as
hereinafter defined), without any deduction or credit for any amount payable
for
taxes in accordance with the terms of the said Note, and hereof, then this
mortgage shall cease, determine and become null and void; otherwise to remain
in
full force and effect.
ARTICLE
I.
THE
OBLIGATION
Section
1.1 Mortgagee.
The
expression “this Mortgage,” as used herein, shall mean this Mortgage, and all
rights, title, interest, liens, security interests, powers and privileges
created hereby or arising by virtue hereof. This Mortgage is given to secure
payment and performance of the Obligation, including the indebtedness described
in Section
1.2.
The
word “Mortgagee,” as used herein, shall mean XXXXXXX
FUNDING, INC.,
a New
Jersey corporation, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, as
agent
for the lenders identified in the Note defined hereinbelow, in each case having
an address c/o Mortgagee, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000.
Section
1.2 Obligation.
The
word “Obligation”, “Obligations” or the word “Indebtedness,” as used herein,
shall mean all of the indebtedness, obligations and liabilities described as
follows:
(a) the
indebtedness, obligations and liabilities of Mortgagor arising under any
documents evidencing, securing, or now or hereafter executed in connection
with
the Loan (each a “Loan Document”; collectively “Loan Documents”) evidencing the
Loan; and
(b) all
other
and additional indebtedness, liabilities and obligations, of every kind and
character, of Mortgagor now or hereafter existing in favor of Mortgagee,
regardless of whether they are direct, indirect, primary, secondary, joint,
several, joint and several, liquidated, unliquidated, fixed or contingent,
and
regardless of whether the same may, prior to their acquisition by Mortgagee,
be
or have been payable to some other person or entity, it being the intention
and
contemplation of Mortgagor and Mortgagee that future advances may be made to
Mortgagor by Mortgagee for a variety of purposes, that Mortgagor may guarantee
(or otherwise become directly or contingently obligated with respect to) the
obligations of others to Mortgagee, and that Mortgagee may, from time to time,
acquire from others obligations of Mortgagor to such others, or that Mortgagor
may otherwise hereafter be or become further indebted to Mortgagee, and that
payment and repayment of all of the foregoing are intended to and shall be
part
of the indebtedness secured hereby; and
(c) and
any
and all renewals, modifications, rearrangements, amendments or extensions of
all
or any part of the indebtedness, obligations and liabilities described or
referred to in Subsections
1.2(a),
1.2(b),
preceding.
Mortgagor,
and each party at any time claiming an interest in or lien or encumbrance
against the Property, agrees that all advances made by Mortgagee from time
to
time under any of the Loan Documents, and all other portions of the Obligation
herein referred to, shall be secured by this Mortgage with priority as if all
of
the same had been advanced, had arisen or become owing or performable on the
date hereof, no reduction of the outstanding principal balance under the Loan
Agreement shall extinguish, release or subordinate any rights, titles,
interests, liens, security interests, powers or privileges intended, created
or
arising hereunder or under any other Loan Document, and this Mortgage shall
remain in full force and effect as to any subsequent advances or subsequently
arising portions of the Obligation without loss of priority until the Obligation
is fully paid, performed and satisfied in accordance with the Note, as
applicable, all agreements and obligations, if any, of Mortgagee for further
advances have been terminated and this Mortgage has been released of record
by
Mortgagee.
ARTICLE
II.
CERTAIN
REPRESENTATIONS, WARRANTIES
AND
COVENANTS OF MORTGAGOR
Section
2.1 Payment
and Performance of Obligations.
Mortgagor shall pay and perform the Obligations when due in accordance with
the
provisions of the Loan Documents; and if any Default (hereinafter defined)
shall
be made in the performance of any of the Obligations, Mortgagee shall have
the
remedies granted to Mortgagee hereunder, under the Loan Documents and under
applicable law.
Section
2.2 Indebtedness
Secured.
This
Mortgage has been given and is intended to secure the full and prompt payment
and performance of each and all of the Obligations and any renewal, extension,
modification or replacement of any of the Obligations. Except as otherwise
provided herein, this Mortgage shall remain in full force and effect with
respect to all of the Property until all the Obligations shall have been paid
and performed in full. If Mortgagor shall well and truly pay and perform the
Obligations at the time and times, and in the manner mentioned in the Loan
Documents and shall well and truly abide by and comply with each and every
term,
covenant and condition set forth in the Loan Documents, then this conveyance
shall be and become null and void and shall be released at the expense of
Mortgagor but if there shall be any Default, then the Obligations shall become
immediately due and payable at the option of Mortgagee, without any notice
to
Mortgagor or any other party, all of which notices of Default or notices of
intent to accelerate or acceleration hereby are waived.
Section
2.3 Title
to Property.
(a) The
Mortgagor represents and warrants that: (i) it has an indefeasible estate in
fee
simple in the Land and Improvements and Accessories; (ii) it has the good and
unrestricted right, full power and lawful authority to mortgage the Property;
(iii) it has obtained any and all consents and approvals necessary or required
for the making of this Mortgage; and (iv) the making of this Mortgage will
not
violate any contract or agreement to which the Mortgagor is a
party.
(b) Mortgagor
does hereby and shall forever warrant and defend its title to and fee simple
interest in the Property and the validity and first priority of the lien of
this
Mortgage to Mortgagee and its successors and assigns, against all claims and
demands whatsoever of any Person (hereinafter defined). There are no defenses
or
offsets or counterclaims to this Mortgage or to any of the
Obligations.
(c) Mortgagor
represents and warrants to Mortgagee that any building or portion of any
building hereafter constructed on the Land shall be in compliance with all
applicable zoning and building codes, ordinances and regulations, shall lie
wholly within the boundaries of the Land, and shall be an independent and
self-contained operating unit.
(d) Mortgagor
shall execute, acknowledge and deliver to Mortgagee any documents and
instruments which Mortgagee may reasonably request from time to time for the
better assuring, conveying, assigning, transferring, confirming or perfecting
Mortgagee’s security and rights under this Mortgage.
Section
2.4 Liens.
Mortgagor shall not, directly or indirectly, create or suffer or permit to
be
created, or to stand, against the Property or any portion thereof, or against
the rents, issues and profits therefrom, any lien, charge, mortgage, deed of
trust, adverse claim or other encumbrance (herein collectively referred to
as a
“lien”), whether senior or junior in lien to this Mortgage, other than the lien
of this Mortgage and the Permitted Encumbrances; provided, however, that nothing
contained in this Section 2.4
shall
require Mortgagor to pay any real estate taxes or other Impositions (as
hereinafter defined) prior to the time when same are required to be paid under
this Mortgage. Mortgagor will keep and maintain the Property free from all
liens
arising in connection with the supply of labor or materials relating to the
construction, alteration, modification or repair of the Improvements or the
Property. Mortgagor agrees to discharge the same of record by payment or bond
within thirty (30) days after the filing thereof. Notwithstanding anything
to
the contrary contained herein, in no event shall Mortgagor do or permit to
be
done, or omit to do or permit the omission of, any act or thing, where such
act
or omission would impair the security of this Mortgage.
Section
2.5 Impositions.
Mortgagor shall pay, at least five (5) days before the date due, all real estate
taxes, personal property taxes, assessments, water and sewer rates and charges,
license fees, all charges which may be imposed for the use of vaults, chutes,
areas and other space beyond the lot line and abutting the public sidewalks
in
front of or adjoining the Land, and all other governmental levies and charges
(collectively, the “Impositions”), of every kind and nature whatsoever, general
and special, ordinary and extraordinary, foreseen and unforeseen, which shall
be
assessed, levied, confirmed, imposed or become a lien upon or against the
Property or any part thereof, or which shall become payable with respect
thereto. Mortgagor shall deliver to Mortgagee, within twenty (20) days after
the
due date of each payment in connection with the Impositions or any assessment
for local improvements (“Assessment”), the original or a true photostatic copy
of the official receipt evidencing such payment or other proof of payment
satisfactory to Mortgagee.
Section
2.6 Insurance.
(a) Mortgagor
shall provide, at its sole cost and expense, and keep in force for the benefit
of itself and Mortgagee, comprehensive general liability insurance against
claims for bodily injury, death or property damage and such other insurance
on
the Property or any part thereof or any replacements or substitutions therefor,
as Mortgagee may reasonably require, and the following with respect to the
Land,
Improvements and Accessories, provided there exists Improvements upon the
Property: (i) insurance against loss or damage by fire, other hazards by
so-called “all risk” and “extended coverage,” and such other casualties and
hazards as Mortgagee shall reasonably require from time to time; (ii) flood
insurance if the Property is located in a flood hazard area and earthquake
and/or hurricane insurance to the extent that owners of similar buildings in
the
same county as the Property maintain such insurance; (iii) war risk insurance,
when obtainable from the United States government or any agency thereof; (iv)
rent insurance; (v) water damage legal liability insurance; (vi) workers’
compensation insurance as required by law; (vii) business interruption
insurance; and (viii) such other insurance on the Property or any part thereof
or any replacements or substitutions therefor, as Mortgagee may reasonably
require.
(b) The
policies of insurance required by Subsection 2.6(a)
hereof
shall be with companies, in forms and amounts, and for such reasonable periods
as Mortgagee shall require from time to time, and shall insure the respective
interests of Mortgagor and Mortgagee. The full amount of the proceeds of any
insurance covering real property or tangible personal property subject to a
lien
or security interest in favor of Mortgagee granted pursuant to any of the Loan
Documents in the case of each separate loss in excess of Ten Thousand and 00/100
($10,000.00) Dollars (a “Major Loss”), other than the proceeds from the
insurance required under clauses (vi), and (vii) of Subsection 2.6(a)
hereof,
shall be payable to Mortgagee pursuant to a non-contributing loss payee
endorsement satisfactory to Mortgagee. Certificates of Insurance and true
photocopies of the original policies and renewals thereof covering the risks
required to be insured against in accordance with this Mortgage, bearing
satisfactory evidence of payment of all premiums thereon for the succeeding
one
year period, shall be delivered to and held by Mortgagee, and within five (5)
days of demand by Mortgagee Mortgagor shall deliver to Mortgagee the original
policies and renewals, replacements or endorsements thereof and shall assign
to
Mortgagee said policies of insurance as additional security for the indebtedness
and other obligations secured hereby. At least twenty (20) days prior to the
expiration of each policy required to be provided by Mortgagor, Mortgagor shall
deliver Certificates of Insurance evidencing renewal or replacement thereof
along with true photocopies of any endorsements or any renewal or replacement
policies to Mortgagee with satisfactory evidence of payment of all premiums
thereon.
(c) All
insurance policies required in accordance with this Mortgage shall: (1) include
effective waivers by the insurer of all rights of subrogation against Mortgagor,
Mortgagee, any lessee or other occupant of all or any part of the Property,
or
any other Person which controls, is controlled by or is under common control
with any of the foregoing; (2) provide that the full amount of the proceeds
of
such insurance (other than the proceeds from the insurance required under
clauses (vi) and (vii) of Subsection 2.6(a)
hereof)
shall, in the case of each separate Major Loss, be payable notwithstanding:
(A)
any act, failure to act or negligence of or violation of warranties,
declarations or conditions contained in such policy by any named insured; (B)
the occupation or use of the Improvements or the Land for purposes more
hazardous than permitted by the terms thereof; (C) any foreclosure or other
action or proceeding taken by Mortgagee pursuant to any provision of this
Mortgage; or (D) any change in title to or ownership of the Property; (3)
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
Mortgagee of written notice thereof; (4) include “replacement cost endorsements”
if available; and (5) be reasonably satisfactory to Mortgagee in all other
respects. Mortgagor shall not permit any condition to exist with respect to
the
Property which would wholly or partially invalidate any of the insurance
thereon.
(d) Mortgagee
shall have the right but not the obligation, on behalf of Mortgagor, to adjust
and compromise any claims under such insurance in the case of a Major Loss,
collect and receive the proceeds thereof and execute and deliver all proofs
of
loss, receipts, vouchers, checks, drafts, releases and other documents in
connection with such claims. Mortgagee is hereby irrevocably appointed
attorney-in-fact for Mortgagor (which appointment is coupled with an interest)
for such purposes, and Mortgagor shall, upon request of Mortgagee, promptly
execute any proofs of loss, receipts, vouchers, checks, drafts, releases, and
other documents in connection with such claims.
(e) Mortgagee
may deduct from the proceeds of the insurance required to be obtained by
Mortgagor pursuant to Subsection 2.6(a)
hereof,
other than the insurance required under clauses (vi) and (vii) thereof, any
expenses (including, without limitation, reasonable attorneys’ fees and
disbursements) incurred by it in connection with obtaining such proceeds, and
Mortgagee may, at its option, release the balance of such proceeds to Mortgagor
for the restoration of the Property (“Restoration”) or apply the balance of such
proceeds in reduction or satisfaction of all or part of the Obligations, whether
or not then due and payable (in such order of priority as Mortgagee shall
elect). Upon the occurrence of any Default all of Mortgagor’s right, title and
interest in and to all such policies, including unearned premiums thereon,
shall
be deemed assigned to Mortgagee. The application of such insurance proceeds
toward the payment or performance of the Obligations shall not be deemed a
waiver by Mortgagee of its right to receive payment or performance of the
remainder of the Obligations and the interest thereon in accordance with the
provisions of the Loan Documents.
(f) In
the
event of a sale, transfer or other disposition by Mortgagee of any of the
property of Mortgagor, the purchaser, assignee or transferee of such property
shall succeed to all of the rights of Mortgagee, including any right to unearned
premiums, in and to all policies of insurance which Mortgagor is required to
maintain under this Section
2.6
and to
all proceeds of such insurance.
(g) Mortgagor’s
policies of insurance may be maintained under “blanket policies” insuring the
Property and other property owned by Mortgagor, provided that such blanket
policies shall: (i) separately set forth the amount of the insurance applicable
to the Property (except as to the insurance required under clauses (iv), (v)
and
(vi) of Subsection 2.6(a)
hereof),
(ii) otherwise comply with the provisions of this Section, and (iii) afford
the
same protection to Mortgagee as, in Mortgagee’s judgment, would be provided by
policies individually applicable to the Property.
(h) Mortgagor
shall not obtain or permit to be obtained separate insurance concurrent in
form
or contributing in the event of loss with the insurance Mortgagor is required
to
maintain under the provisions of this Section.
Section
2.7 Condemnation.
(a) Mortgagor
shall give notice to Mortgagee immediately upon Mortgagor’s learning of the
commencement of any action or proceeding to take all or any part of the Property
by exercise of the right of condemnation or eminent domain or of any action
or
proceeding to close or to alter the grade of any street on or adjoining the
Land. Mortgagee may participate together with Mortgagor in any such actions
or
proceedings in the name of Mortgagee or, whenever necessary, in the name of
Mortgagor, and Mortgagor shall deliver to Mortgagee such instruments as
Mortgagee shall request to permit such participation. Mortgagor shall not settle
any such action or proceeding or agree to accept any award or payment without
the prior consent of Mortgagee (which consent Mortgagee may deny in its sole
discretion), and the total of all awards made or allowed with respect to all
right, title and interest in and to the Property or the portion or portions
thereof taken or affected by such condemnation or eminent domain proceeding
and
any interest thereon (hereinafter collectively called the “Award”) is hereby
assigned to
and
shall be paid to Mortgagee and the amount received shall be retained and applied
as provided in Subsection
2.7(b)
hereof.
(b) The
Obligations may be accelerated at the option of Mortgagee as a result of the
exercise of the right of condemnation or eminent domain in respect of all of
the
Property or any part of the Property which is currently or may prior to the
maturity date established in the Note be utilized in the operation of
Mortgagor’s business or which may, in the sole judgment of Mortgagee, make
impracticable the restoration of the Property in a manner which will permit
the
Property to be used for the purposes for which it was used prior to the exercise
of such right of condemnation or eminent domain, in which event Mortgagee shall
retain and apply the Award toward payment and performance of the Obligations
(in
such order of priority as Mortgagee shall elect); provided, however, that to
the
extent that the Award received by Mortgagee shall exceed the amount required
to
satisfy in full the then total amount of the Obligations, Mortgagee shall pay
over to Mortgagor the amount of such excess and provided, further, that until
the actual vesting of title in such proceeding, the Obligations shall continue
unimpaired. If there is a taking of a portion of the Property in any such
proceeding and Mortgagee does not accelerate the Obligations, then at the option
of Mortgagee, the Award shall be: (i) retained and applied by Mortgagee toward
the payment or performance of the Obligations in such order of priority as
Mortgagee may elect; or (ii) paid over in whole or in part to pay or reimburse
Mortgagor for the cost of restoring or reconstructing the Improvements and
the
Accessories in a manner and on conditions satisfactory to Mortgagee. In no
event
shall Mortgagee be required to satisfy this Mortgage until the Obligations
are
fully paid and Mortgagee shall not be required to release from the lien of
this
Mortgage until the Obligations are fully paid any portion of the Property so
taken until Mortgagee receives the entire amount of Award for the portion so
taken.
(c) The
application of the Award toward payment or performance of the Obligations shall
not be deemed a waiver by Mortgagee of its right to receive payment or
performance of the balance of the Obligations in accordance with the provisions
of the Loan Documents. Mortgagee shall have the right, but shall be under no
obligation, to question the amount of the Award, and Mortgagee may accept same
without prejudice to the rights that Mortgagee may have to question such amount.
In any such condemnation or eminent domain action or proceeding Mortgagee may
be
represented by attorneys selected by Mortgagee, and all sums paid by Mortgagee
in connection with such action or proceeding (including, without limitation,
attorneys’ fees and disbursements) shall, on demand, be immediately due from
Mortgagor to Mortgagee and the same shall be added to the Obligations and shall
be secured by this Mortgage.
(d) Notwithstanding
any taking by condemnation or eminent domain, closing of, or alteration of
the
grade of, any street or other injury to or decrease in value of the Property
by
any public or quasi-public authority or corporation, the Obligations shall
continue to bear interest at the rate payable pursuant to the Note until the
Award shall have been actually received by Mortgagee, and any reduction in
the
Obligations resulting from the application by Mortgagee of the Award shall
be
deemed to take effect only on the date of such receipt.
Section
2.8 Restoration.
If: (a)
the Improvements or Accessories shall be damaged or destroyed, in whole or
in
part, by fire or other casualty, or by any taking in condemnation proceedings
or
the exercise of any right of eminent domain; and (b) Mortgagee releases or
agrees to release to Mortgagor the proceeds of any insurance payable to
Mortgagee or the proceeds of the Award, less any expenses (including, without
limitation, reasonable attorneys’ fees and disbursements) incurred by Mortgagee
in obtaining same, and upon conditions satisfactory to Mortgagee; then Mortgagor
shall promptly restore, replace or rebuild the same to as nearly as possible
the
value, quality and condition they were in immediately prior to such fire or
other casualty or taking, with such alterations or changes as may be approved
in
writing by Mortgagee. Mortgagor shall give immediate notice to Mortgagee of
any
damage or destruction to the Property by fire or other casualty.
Section
2.9 Deposits
for Impositions and Insurance.
Notwithstanding anything to the contrary contained in any of the Loan Documents,
upon the occurrence of an Event of Default, Mortgagee may require Mortgagor
to
deposit with Mortgagee on the first day of each month an amount equal to one
twelfth (1/12th) of the sum of (collectively, the “Annual Payments”); (i) the
aggregate annual payments for the Impositions; (ii) the annual insurance
premiums on the policies of insurance required to be obtained and kept in force
by Mortgagor under this Mortgage; and (iii) all other periodic charges (other
than interest and principal under the Note) arising out of the ownership of
the
Property or any portion thereof which are or with notice or the passage of
time
or both will become a lien against the Property or any part thereof. In
addition, upon demand by Mortgagee at any time and from time to time, Mortgagor
shall deposit with Mortgagee such sum of money which, together with such monthly
installments, shall be sufficient to pay all of the Annual Payments at least
forty-five (45) days prior to the due date thereof. If the amount of any of
the
Annual Payments are not ascertainable at the time any deposit is required to
be
made, the deposit shall be made on the basis of Mortgagee’s estimate thereof,
which Mortgagee may change from time to time. The funds so deposited with
Mortgagee shall, provided that no Default shall have occurred under this
Mortgage, be applied in payment of all of the Annual Payments when due to the
extent that Mortgagor shall have deposited funds with Mortgagee for such
purpose. In the event of any Default the funds deposited with Mortgagee may,
at
the option of Mortgagee, be retained and applied toward the payment of any
or
all of the Obligations, in such order of priority as Mortgagee shall determine,
but no such application shall be deemed to have been made by operation of law
or
otherwise until actually made by Mortgagee. The whole of the Obligations shall
become due and payable at the option of Mortgagee after the failure of Mortgagor
to deliver payment of any of such deposits or after the failure of Mortgagor
to
deliver to Mortgagee, within ten (10) days after request by Mortgagee, a
statement certified by an authorized officer of Mortgagor, specifying the
current amounts of all of the Annual Payments. At any time when deposits are
required to be made under this Section
2.9,
Mortgagor shall furnish Mortgagee with a xxxx for each of the Annual Payments
and/or such other documents necessary for their payment at least forty-five
(45)
days prior to the date they first become due. Upon an assignment of this
Mortgage, Mortgagee shall have the right to pay over the balance of such
deposits in its possession which have not been applied to the Obligations to
the
assignee, and thereupon Mortgagee shall be completely released from all
liability with respect to such deposits and Mortgagor shall look solely to
the
assignee in reference thereto. The provisions of the preceding sentence shall
apply to each and every assignment or transfer of such deposits to a new
assignee.
Mortgagee
agrees not to exercise its rights under this Section provided that no Default
has occurred and provided that Mortgagor has at all times fully, faithfully
and
timely complied with all of the provisions of Sections 2.5
and 2.6
of this
Article. Nothing contained herein shall be deemed to extend the maturity date
for the Loan established in the Note.
Section
2.10 Maintenance
and Alterations.
(a) Mortgagor
shall put, keep and maintain the Land, Improvements and Accessories, and the
sidewalks, curbs and alleys adjoining or abutting the same in the same or better
order, condition and repair as they were in on the date hereof, and Mortgagor
shall make or cause to be made, as and when the same shall become necessary,
all
structural and non-structural repairs, whether exterior or interior, ordinary
or
extraordinary, foreseen or unforeseen in a good and workmanlike manner.
Mortgagor shall not commit or suffer any waste or abandonment of the Land,
the
Improvements or Accessories, and shall not demolish or remove or permit the
demolition or removal of the Improvements or Accessories, or any part thereof,
without the prior consent of Mortgagee in each instance.
(b) Mortgagor
shall not make any alterations to all or any part of the Improvements or
Accessories, or construct additions to all or any part of the Improvements
or
construct any new or additional buildings on the Property, without the prior
consent of Mortgagee in each instance, and then only upon terms and conditions
satisfactory to Mortgagee.
Section
2.11 Compliance
with Laws.
(a) Mortgagor
shall promptly comply with, or cause to be complied with, all present and future
laws, statutes, ordinances, rules, regulations and other requirements of all
governmental authorities whatsoever having jurisdiction of or relating to all
or
any part of the Property and the sidewalks, curbs and alleys adjoining or
abutting the Land, and the condition, repair, maintenance, use and occupation
thereof if non-compliance therewith would result in imposition of any fine,
penalty, lien or criminal liability on Mortgagor or the Property, or would
result in commencement of proceedings for foreclosure or forfeiture of
Mortgagor’s interest in the Property; and Mortgagor shall promptly make, or
cause to be made, all changes, alterations and improvements to the Property
necessary to comply with all such present and future laws, statutes, ordinances,
rules, regulations and other requirements to the extent aforesaid. Mortgagor
shall operate the Property in compliance with all applicable laws, statutes,
ordinances, rules, regulations and other legal requirements. Mortgagor shall
not
initiate, support, assist or acquiesce in any change in the zoning
classification of the Property or any part thereof, without the prior consent
of
Mortgagee.
(b) Mortgagor
shall promptly perform and observe, or cause to be performed and observed,
all
of the terms, covenants and conditions of all instruments of record affecting
the Property, non-compliance with which may affect the security of this
Mortgage, or shall impose any duty or obligation upon Mortgagor or any tenant
or
other occupant of the Property or any part thereof, and Mortgagor shall do
or
cause to be done all things necessary to preserve intact and unimpaired any
and
all easements, appurtenances and other interests and rights in favor, or of
constituting any portion of, the Property.
(c) Notwithstanding
anything to the contrary contained herein, Mortgagor shall not use or permit
the
use of the Property in any manner which would impair or adversely affect the
value or utility of the Property or increase the risk of fire or other
casualty.
Section
2.12 Leasing.
(a) Mortgagor
shall not, without Mortgagee’s prior approval in each instance, which approval
shall not be unreasonably withheld or delayed: (i) enter into or change, amend
or modify, in any manner whatsoever, any Lease, License or other agreement
for
the rental or occupancy of all or any portion of the Property (each a “Lease”);
(ii) terminate or cancel, or accept a surrender or suffer or permit any
cancellation, termination or surrender or suffer or permit any cancellation,
termination or surrender of, any Lease, in any manner whatsoever or (iii)
receive, collect or accept, or permit the receipt, collection or acceptance
of,
any prepayment of rent or other charges under any Lease for more than one month,
except that Mortgagor may, at the time of the execution of any Lease, accept
rent security deposits, which shall be held by Mortgagor in accordance with
Subsection
2.12(b)
hereof.
(b) Mortgagor
shall at all times fully and promptly comply with, keep and perform all of
the
terms, covenants, provisions and conditions of any and all Leases on the part
of
the landlord thereunder to be complied with, kept and performed, and will not
do
or permit anything to be done which will constitute a breach of any of the
terms, covenants, provisions and conditions of any of such Leases. Mortgagor
shall enforce the performance and observance of each and every term, covenant,
provision and condition of each and every Lease to be performed or observed
on
the part of the tenant thereunder. Mortgagor shall give prompt notice to
Mortgagee of: (i) any notice received by Mortgagor of any default by the
landlord or the lessee under any Lease; (ii) the commencement of any action
or
proceeding by any tenant or lessor the purpose of which shall be the
cancellation of any Lease or a diminution or abatement of the rent payable
thereunder; or (iii) the interposition by any tenant of any defense or
counterclaim in any action or proceeding brought by Mortgagor against such
tenant; and Mortgagor will cause a copy of any process, pleading or notice
received or served by Mortgagor in reference to any such action, defense or
claim to be promptly delivered to Mortgagee. Mortgagor shall hold in trust
all
security deposits and advance rent given on account of any Lease, and deposit
such security in a bank or trust company and shall not mingle such funds with
other funds. Mortgagor shall repay or apply such funds only in accordance with
the provisions of the applicable Leases.
Section
2.13 Assignment
of Rents.
Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all of
Mortgagor’s right, title and interest in and to each Lease whether now existing
or hereafter entered into, together with the room revenues, occupancy charges,
issues and profits (“Rents”) of each such Lease as further security for the
payment and performance of the Obligations, and Mortgagor grants to Mortgagee
the right to enter the Property for the purpose of collecting the same and
to
let the Property, or any part thereof, and to apply said Rents after payment
of
all necessary charges and expenses, on account of the Obligations. This
assignment and grant shall continue in effect until the Obligations are fully
paid and performed. Mortgagee hereby waives the right to enter the Property
for
the purpose of collecting Rents, and Mortgagor shall be entitled to collect,
receive and use said Rents until the occurrence of a Default under this
Mortgage. Mortgagor shall, from time to time after request by Mortgagee,
execute, acknowledge and deliver to Mortgagee, in form satisfactory to
Mortgagee, separate assignments confirming the foregoing assignment. Mortgagee
shall not be obligated to perform or discharge any obligation or duty to be
performed or discharged by Mortgagor under any Lease or other agreement
affecting all or any part of the Property, and Mortgagor hereby agrees to
indemnify Mortgagee for and save it harmless from, any and all liability arising
from any such Lease or other agreement or any assignments thereof, and no
assignment of any such Lease or other agreement shall place the responsibility
for the control, care, management or repair of all or any part of the Property
upon Mortgagee, nor make Mortgagee liable for any negligence in the management,
operation, upkeep, repair or control of all or any part of the Property
resulting in injury, death or property damage. Mortgagee or the receiver shall
be liable to account only for rents and profits actually received by Mortgagee
or the receiver as the case may be.
Section
2.14 No
Claims Against Mortgagee.
(a) Nothing
contained in this Mortgage shall constitute any consent or request by Mortgagee,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Property or
any
part thereof, or be construed to permit the making of any claim against
Mortgagee in respect of labor or services or the furnishing of any materials
or
other property or any claim that any lien based on the performance of such
labor
or services or the furnishing of any such materials or other property is prior
to the lien of this Mortgage.
(b) If
Mortgagor shall request Mortgagee’s approval or consent to any matter and
Mortgagee shall fail or refuse to give such consent or approval, Mortgagor
shall
not be entitled to any damages for any withholding or delay of such approval
or
consent by Mortgagee, it being intended that Mortgagor’s sole remedy shall be an
action for injunction or specific performance and that such remedy shall be
available only in those cases where Mortgagee shall have expressly agreed in
writing not to unreasonably withhold its consent or approval or where as a
matter of law Mortgagee may not unreasonably withhold its consent or
approval.
Section
2.15 Mortgagee’s
Right to Perform Mortgagor’s Covenants.
(a) If
Mortgagor shall fail to fully and promptly pay, perform or observe any of the
Obligations prior to the expiration of any applicable grace period, then, in
any
such event, Mortgagee may, at its option, but without any obligation to do
so,
and without waiving or releasing Mortgagor from any of the Obligations, pay
any
Obligation or cost or perform any Obligation or act or take such action as
Mortgagee deems necessary or desirable in order to cause such Obligation to
be
paid, performed or observed, as the case may be. Mortgagor hereby expressly
grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and
immediate right to enter in and upon the Property or any part thereof to such
extent and as often as Mortgagee, in its sole discretion, deems necessary or
desirable for such purpose. Mortgagee may pay and expend such sums of money
as
Mortgagee, in its sole discretion, deems necessary or desirable for any such
purpose, and Mortgagor hereby agrees to pay to Mortgagee, on demand, all such
sums so paid or expended by Mortgagee, together with interest thereon from
the
date of each such payment or expenditure at the Default Rate established in
the
Note (hereinafter, the “Default Rate”). Any interest which has been paid by
Mortgagor to Mortgagee pursuant to this Section 2.15
in
excess of the maximum interest rate permitted by law shall be deemed payment
in
reduction of the principal amount of the Obligations. All sums paid or expended
by Mortgagee pursuant to this Section
2.15,
and the
interest thereon, shall be added to and included in the Obligations and shall
be
secured by the lien of this Mortgage.
(b) Mortgagor
hereby irrevocably appoints Mortgagee its true and lawful attorney-in-fact
in
its name or otherwise, to do any and all acts and to execute any and all
documents which may be reasonably necessary or, in the opinion of Mortgagee,
desirable to preserve any rights of Mortgagor in, to or under the Leases or
to
effectuate any rights of Mortgagee under this Section
2.15
or
contained elsewhere in this Mortgage. The foregoing power of attorney is coupled
with an interest.
Section
2.16 Certificates
of Mortgagor.
Mortgagor, upon request of Mortgagee, shall certify to Mortgagee or to any
proposed assignee of this Mortgage, by an instrument in form satisfactory to
Mortgagee, duly acknowledged, the amount then owing on the obligations, the
date
to which any interest thereon has been paid, and whether any offsets or defenses
exist against payment thereof or performance of any Obligation, within five
(5)
days if the request is personally delivered, or within seven (7) days if the
request is made by mail. Mortgagee and any proposed assignee of this Mortgage
shall have the right to rely on such certification.
Section
2.17 Inspection
and Financial Reports.
Mortgagee and its authorized agents and employees shall have the right, at
Mortgagee’s option, to enter into the Property at all reasonable times for the
purpose of inspecting the same. Mortgagor will furnish to Mortgagee, within
thirty (30) days after a request therefor, a detailed statement in writing,
covering the period of time specified in such request, showing all income
derived from the operation of the Property, and all disbursements made in
connection therewith, and containing a list of the names of all tenants and
occupants of the Property, the portion or portions of the Property occupied
by
each such tenant and occupant, the rent and other charges payable under the
terms of their leases or other agreements and the period covered by such leases
or other agreements.
Section
2.18 Accounting
and Other Information.
Mortgagor will keep books and records of account in accordance with generally
accepted accounting principles, in which full, true and correct entries shall
be
made of all dealings and transactions relative to Mortgagor and the Property.
Said books and records of account shall be made available to Mortgagee, at
an
office of Mortgagor and shall be open to the inspection of Mortgagee and its
accountants and its other duly authorized representatives at regular business
hours. Mortgagor further covenants that it will, within a reasonable time after
any request by Mortgagee, furnish or cause to be furnished to Mortgagee such
other information with respect to Mortgagor or the Property as Mortgagee may
from time to time reasonably request.
Section
2.19 Assignment.
This
Mortgage is assignable by Mortgagee without notice to Mortgagor, and any
assignment of the same by Mortgagee shall operate to vest in such assignee
the
same right, title and interest as was vested in Mortgagee and all rights and
powers herein conferred, and to release mortgagee from any further obligation
or
liability hereunder.
Section
2.20 Due
on
Sale.
(a) To
the
extent permitted by law, the Property shall not be sold, transferred or
conveyed, in whole or in part, whether voluntarily or involuntarily, by
operation of law or otherwise, nor shall Mortgagor lease the entire premises,
without, in each instance, the prior written consent of Mortgagee. No mortgage,
deed of trust, lien or other encumbrance shall be made or filed against or
with
respect to the Property, without the prior written consent of Mortgagee, except
for new advances to Mortgagor in connection with a loan in the combined amount
of up to Twenty Five Million ($25,000,000) Dollars to Xxxxxxxxx International
Bank and Resorts Funding Group, LLC both of whom are current stockholders and
investors of Mortgagor; provided, however, that any such loan to Xxxxxxxxx
International Bank and Resorts Funding Group, LLC shall be subordinate to the
Loan and Xxxxxxxxx International Bank and Resorts Funding Group, LLC shall
execute a Subordination Agreement in form and with content satisfactory to
Mortgagee, in the form attached hereto as Exhibit D. No conditional xxxx of
sale
or chattel mortgage shall be made or filed against any Accessories without
the
prior written consent of Mortgagee. If any such conditional xxxx of sale or
chattel mortgage is made or filed with or without Mortgagee’s prior written
consent, then after the occurrence of a Default all right, title and interest
of
Mortgagor in and to all deposits and payments made thereon are hereby assigned
to Mortgagee.
(b) If
Mortgagor enters into an installment sale contract or sells, conveys, alienates,
assigns, mortgages or transfers the Property, or any part thereof or interest
therein in any manner, except the Permitted Transfer (as defined below), or
leases all or substantially all of the Property or the Improvements, whether
voluntary or involuntary, or by operation of law or otherwise, then Mortgagee
shall have the right, at its option, at any time thereafter to declare the
Obligations immediately due and payable. No waiver of this right shall be
effective, nor shall any delay in the exercise thereof operate as a waiver
thereof, unless Mortgagee shall have executed and delivered to Mortgagor a
written waiver of such right.
(c) Any
sale,
assignment, lease, transfer, pledge, or other disposition, whether voluntary
or
involuntary, by operation of law or otherwise, of any partnership, membership
or
other ownership interest or shares of stock in Mortgagor, shall be deemed to
be
a transfer of the Property for the purposes of this Section; provided, however,
that upon reasonable notice to Mortgagee, American Leisure Holdings, Inc. shall
be permitted to transfer shares of capital stock to a public company to be
listed on the Alternative Investment Market in London, England (“Permitted
Transfer”).
(d) On
the
terms and subject to the conditions set forth in this Subsection, within twenty
(20) days after (i) receipt by Mortgagee of Mortgagor’s written request and (ii)
Mortgagor’s compliance with the terms and subject to the conditions set forth in
this Subsection, portions of the Property (including but not limited to proceeds
of any sale permitted under this Subsection and any other Collateral with
respect to the Property encumbered by any other Loan Document) shall be released
from the lien of this Mortgage (and UCC-3 partial release statements with
respect to such released portion shall be delivered and upon the release of
the
TDS Remainder Parcel a release or termination of any construction easements
effecting such parcel):
(i) As
of the
time of Mortgagor’s request and at the time of such transfer, no Default has
occurred hereunder and remains uncured (nothing herein being deemed to extend
any cure period established herein), and no event has occurred that would
constitute a Default with the giving of notice, the passage of time or
both;
(ii) The
release is to occur prior to the Maturity Date;
(iii) With
respect to each portion of the Property to be released, Mortgagor has obtained
all subdivision and other consents, permits and approvals necessary to lawfully
release or convey such portion;
(iv) After
giving effect to such release and conveyance, the remainder of the Property
will
continue to have adequate ingress and egress, and adequate capacity for all
utilities necessary for development shall be available at the boundary
thereof;
(v) The
instrument to effect such release and conveyance shall be prepared and recorded
at no cost to Mortgagee;
(vi) In
Mortgagee’s reasonable discretion, the loan-to-value ratio based on the “as
improved” disposition value of the remaining Property as determined pursuant to
Section 2(j) of the Loan Agreement shall not be less than sixty percent
(60%);
(vii) Simultaneous
with the delivery of such release, Mortgagor shall pay to Mortgagee release
consideration (“Release Price”) equal to $50,000 for each townhouse and
condominium unit to be released from the Mortgaged Property; provided,
however,
that
the Release Price for each townhouse and condominium unit located on the
Mortgaged Property after the release of the one hundred and sixtieth
(160th)
unit (a
“Sale Unit”) shall be $50,000 at the time of the release plus
an
additional $30,000 (for a total payment towards the Loan of $80,000) when such
Sale Unit is sold to an affiliate of Borrower (“Affiliate”). The such Release
Price shall be applied, upon payment and receipt thereof, in reduction of the
outstanding principal amount of the Obligations;
(viii) Simultaneous
with delivery of the Release Price, Mortgagor shall deliver an update
endorsement to the policy of title insurance delivered at the closing of the
Loan, confirming no change to the Property other than the release of the
parcel(s);
(ix) With
respect to the release of each Sale Unit, (a) evidence that such Sale Unit
shall
be transferred to an Affiliate, (b) an assignment of the proceeds of the sale
of
such Sale Unit (not to exceed $30,000) after the payment of the first mortgage
on such Sale Unit, and (c) a pledge of the ownership interest in the Affiliate,
subject to any assignment to the first mortgagee, each in form and with
substance satisfactory to Mortgagee in its reasonable discretion. Notwithstanding
the foregoing, nothing contained herein shall be deemed to grant Mortgagee
any
rights in the real property which has been released hereto; and
(x) Unless
the Property is sold in its entirety, simultaneous with delivery of such
release, Mortgagor shall deliver an update endorsement to the policies of title
insurance delivered at closing of the Loan confirming no change other than
the
release of such portion of the Property and the release of any other portions
previously released pursuant to this Subsection
2.20(d).
(e) Notwithstanding
anything contained herein to the contrary, a portion of the Property owned
by
TDS Amenities, Inc. as described on Exhibit C (the “TDS Property”), as
determined by Lender in its reasonable discretion, shall be released from the
lien of this Mortgage within twenty (20) days after receipt by Mortgagee of
Mortgagor’s written request, provided (i) Mortgagor is not in default hereunder
or under any other Loan Document(s), (ii) receipt by Mortgagee of documentation
evidencing that the TDS Property has been subdivided in a manner consistent
with
the documentation that is submitted to and approved by Mortgagee prior to the
release of the lien, and (iii) no event has occurred which with the passage
of
time and/or the giving of notice would constitute a default hereunder or under
any other Loan Document(s). Notwithstanding the foregoing, the Release Price
shall not apply to the release of the lien on the TDS Property.
(f) Notwithstanding
anything contained herein to the contrary, the balance of the Property owned
by
TDS Amenities, Inc. which is not the TDS Property (the “TDS Remainder Property”)
shall be released from the lien of this Mortgage within twenty (20) days after
receipt by Mortgagee of Mortgagor’s written request, provided (i) Mortgagor is
not in default hereunder or under any other Loan Document(s), (ii) no event
has
occurred which with the passage of time and/or the giving of notice would
constitute a default hereunder or under any other Loan Document(s), (iii)
receipt by Mortgagee of documentation evidencing that the swimming pool on
the
TDS Remainder Property has been constructed, to Mortgagee’s reasonable
satisfaction, in accordance with the plans and specifications provided to
Mortgagee by Mortgagor and the contract submitted to Mortgagee from Xxxxxx
Pools, (iv) receipt by Mortgagee of such other documents as may be required
by
Mortgagee in its sole discretion, (v) receipt by Mortgagee of written evidence
that the owners of all or any portion of the remainder of the Property shall
have access to, and the ability to use, the swimming pool constructed on the
TDS
Remainder Property pursuant to easements established by the Mortgagor and
reasonably acceptable to Mortgagee, and (vi) receipt by Mortgagee of a Release
Price in the amount of Two Million Nine Hundred Thousand ($2,900,000) Dollars.
ARTICLE
III.
RESPECTING
DEFAULTS AND REMEDIES OF MORTGAGEE
Section
3.1 Default.
The
term “default,” and the term “Event of Default,” as used herein, shall mean the
occurrence of any one or more of the following events, subject to any applicable
notice and cure periods:
(a) a
default
in the payment of any installment of principal or interest under the Note;
or
(b) a
default
in the payment of any other sum under the Note; or
(c) a
default
in the payment of any other sum when due hereunder or under any other Loan
Document; or
(d) default
in the payment of any of the Impositions, any Assessment, or
(e) default
in keeping in force the insurance which Mortgagor is required to maintain under
Section 2.6
hereof
or in delivering or assigning the insurance policies or renewals or certificates
thereof, or in reimbursing Mortgagee for premiums paid by it on such insurance;
or
(f) upon
the
actual or threatened waste, removal, alteration or demolition of any part of
the
Property; or
(g) default
in complying with Mortgagor’s obligations under Section 2.12
hereof
or upon the assignment by Mortgagor of any Lease or of the whole or any part
of
the rents, income or profits arising from the Property without the prior written
consent of Mortgagee, other than as permitted in the Loan Documents;
or
(h) if
Mortgagor or any guarantor of all or part of the Obligations becomes insolvent;
or
(i) if
Mortgagor or any guarantor generally does not pay its debts as they become
due;
or
(j) if
Mortgagor or any guarantor makes an assignment for the benefit of creditors;
or
(k) if
Mortgagor or any guarantor calls or causes to be called a meeting of creditors
for the composition of debts; or
(l) if
there
shall be filed by or with the consent or authorization of Mortgagor a petition
in bankruptcy for liquidation or for reorganization, or a custodian, receiver
or agent is appointed or authorized to take charge of its properties, or
Mortgagor authorizes any such action; or
(m) if
there
shall be filed against Mortgagor or any guarantor a petition in bankruptcy,
for
liquidation, or for reorganization, or a custodian, receiver, or agent is
appointed or authorized to take charge of its properties and Mortgagor or such
guarantor, as the case may be, has not consented to or authorized such action
and such action is not dismissed within sixty (60) days; or
(n) the
date
of taking of a condemnation if there is an exercise of the right of condemnation
or eminent domain in respect of all or a substantial part of the Property;
or
(o) upon
Mortgagor directly or indirectly creating, suffering or permitting to be created
or to stand against the Property or any portion thereof or against the rents,
issues and profits therefrom, any other lien, charge, mortgage, deed of trust
or
other encumbrance, without in each instance obtaining Mortgagee’s prior written
consent thereto; or
(p) upon
the
filing of a lien by the United States so as to affect all or any part of the
Property and such lien not being discharged (by bond or otherwise) within thirty
(30) days of the filing thereof; or
(q) upon
the
merger, consolidation, liquidation or dissolution or sale or lease or transfer
of all or substantially all of the assets of Mortgagor or the filing of any
notice of intention to do so; or
(r) upon
Mortgagor entering into an installment sales contract or selling, conveying,
transferring, mortgaging, leasing or otherwise alienating or encumbering the
Property or any portion thereof or any interest therein in any manner, other
than as permitted in the Loan Documents, whether voluntary or involuntary or
by
operation of law or otherwise, without the prior written consent of Mortgagee,
or upon the title or equity of redemption in the Property being acquired, in
whole or in part, by voluntary or involuntary transfer, grant or assignment
by
any person, firm, corporation or entity other than Mortgagor or Mortgagee;
or
(s) if
any
representation or warranty of the Mortgager set forth in this Mortgage or in
any
other Loan Document or in any other writing given to Mortgagee in connection
with the Obligations shall have been incorrect in any material respect as of
the
time when the same shall have been made; or
(t) default
in the performance of Mortgagor’s obligations under Section 2.16
hereof;
or
(u) upon
the
closing of, or the altering of the grade of, any street on or adjoining the
Land
if such closing or alteration materially affects access to the Property or
any
part thereof; or
(v) upon
the
occurrence of a breach, default or an Event of Default under the Loan Documents,
subject to applicable notice and cure periods; or
(w) upon
the
failure of Mortgagor to comply with, satisfy or perform or observe any other
term, covenant, condition or agreement of such party contained in the Note
or
any other Loan Document provided therefor in such document; or
(x) upon
the
failure of Mortgagor to comply with, satisfy, perform or observe any other
term,
covenant, condition or agreement of Mortgagor herein; or
(y) Except
as
otherwise expressly permitted herein or under the Loan and Security Agreement,
any transfer of any ownership interest in Mortgagor occurs in violation of
Subsection
2.20(c)
hereof;
or
(z) any
material breach or acceleration or commencement of proceedings (whether
non-judicial, judicial, public or private) to foreclose any lien upon the
Collateral or any other collateral pledged by Mortgagor, whether or not such
liens are permitted hereunder or prior or subordinate to the lien of this
Mortgage; or
(aa) Mortgagor
shall at any time deliver or cause to be delivered to Mortgagee a notice
electing to limit the indebtedness secured by this Mortgage.
Notwithstanding
anything contained herein to the contrary, (i) Mortgagor shall have a ten (10)
calendar day grace period with respect to any payments referenced in subsections
(b) and (c) of Section 3.1 above, and (ii) Mortgagor shall be provided with
written notice from Mortgagee and a thirty (30) calendar day grace period to
diligently cure same with respect to the occurrence of any event described
in
subsections (h), (i), (k), (s), (t), (w) and (x) of Section 3.1 above; provided,
however, that the giving of such notice and/or grace period shall not have
a
material adverse effect on the Mortgagee, the Collateral, the Property and/or
Mortgagee’s lien on the Property, as determined by Mortgagee in its reasonable
discretion.
All
notices and cure periods described herein shall not be applicable to any event
which with the giving of notice, the passage of time or both would constitute
an
Event of Default, if such event has occurred as of the date on which Mortgagee
commences a nonjudicial foreclosure proceeding with respect to another Event
or
Events of Default. Such event shall constitute an independent Event of Default
hereunder.
Upon
the
occurrence of an Event of Default, at the option of Mortgagee, the Indebtedness
shall become immediately due and payable without notice to Mortgagor and
Mortgagee shall be entitled to all of the rights and remedies provided herein,
in the Loan Documents or at law or in equity. Each and every remedy of Mortgagee
whatsoever is distinct and cumulative to all other rights or remedies hereunder,
under the Loan Documents or afforded by law or equity, and may be exercised
concurrently, independently, or successively, in any order
whatsoever.
Section
3.2 Remedies
Upon Default.
(a) Surrender
Possession.
Upon
the occurrence of an Event of Default, Mortgagor, upon demand of Mortgagee,
shall forthwith surrender to Mortgagee the actual possession of the Property,
or
to the extent permitted by law, Mortgagee or a receiver appointed by a court
of
competent jurisdiction, may enter and take possession of all or any part of
the
Property, and may exclude Mortgagor and its agents and employees wholly
therefrom, and may have joint access with Mortgagor to the books, papers and
accounts of Mortgagor. If Mortgagor shall for any reason fail to surrender
or
deliver the Property or any part thereof after such demand by Mortgagee,
Mortgagee or such receiver may obtain a judgment or decree conferring on
Mortgagee or such receiver, the right to immediate possession of the Property
or
requiring the delivery of the Property to Mortgagee or such receiver, and
Mortgagor specifically consents to the entry of such judgment or decree. Upon
every such entering upon or taking of possession, Mortgagee or such receiver
may
hold, store, use, operate, manage and control the Property and conduct the
business thereof, and Mortgagee or such receiver may take any action required
by
applicable law or which Mortgagee or such receiver believes necessary to enforce
compliance with the environmental provisions contained herein or in the other
Loan Documents, and negotiate with governmental authorities with respect to
the
Property’s environmental compliance and remedial measures in connection
therewith. Mortgagee and such receiver and their representatives shall have
no
liability for any loss, damage, injury, cost or expense resulting from any
action or omission which was taken or omitted in good faith.
(b) Pursue
Remedies.
When
the Indebtedness or any part thereof shall become due, whether by acceleration
or otherwise, Mortgagee may, either with or without entry or taking possession
as herein provided or otherwise, proceed by suit or suits at law or in equity
or
by any other appropriate proceeding or remedy to: (i) enforce payment of the
Note or the performance of any term, covenant, condition or agreement of
Mortgagor under any of the Loan Documents; (ii) foreclose the lien hereof for
the Indebtedness or part thereof by power of sale, commencement of action or
otherwise, as more particularly described below or otherwise and sell the
Property as an entirety or otherwise, as Mortgagee may determine; (iii) exercise
its rights under Subsection
(o)
of this
Section with respect to all or any portion of the Accessories in accordance
with
the provisions of the UCC; and/or (iv) pursue any other right or remedy
available to it under or by the law and decisions of the State in which the
Land
is located. Notwithstanding any statute or rule of law to the contrary, the
failure to join any tenant or tenants of the Property as party defendant or
defendants in any foreclosure action or the failure of any such order or
judgment to foreclose their rights shall not be asserted by Mortgagor as a
defense in any civil action instituted to collect (v) the Indebtedness, or
any
part thereof, or (vi) any deficiency remaining unpaid after foreclosure and
sale
of the Property.
(c) Mortgagee’s
Sale.
Should
Mortgagee elect to foreclose by exercise of the power of sale contained herein,
Mortgagee shall cause to be recorded and delivered to Mortgagor such notice
of
default as may then be required by law and by this Mortgage. Mortgagee shall,
without demand on Mortgagor, after lapse of such time as may then be required
by
law and after recordation of such notice of default and after notice of sale
has
been given as required by law, sell the Property at the time and place of sale
fixed by it in said notice of sale, either as a whole or in separate lots or
parcels or items as Mortgagee shall deem expedient, and in such order as it
may
determine, at public auction to the highest bidder for cash in lawful money
of
the United States payable at the time of sale. Mortgagee shall deliver to the
purchaser or purchasers at such sale its good and sufficient deed or deeds
conveying the property so sold, but without any covenant or warranty, express
or
implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including, without limitation,
Mortgagor or Mortgagee, may purchase at such sale, and Mortgagor hereby
covenants to warrant and defend the title of such purchaser or
purchasers.
Mortgagee
may postpone the sale of all or any portion of the Property from time to time
in
accordance with the laws of the State in which the Land is located.
To
the
fullest extent allowed by law, Mortgagor hereby expressly waives any right
which
it may have to direct the order in which any of the Property shall be sold
in
the event of any sale or sales pursuant to this Mortgage.
Upon
any
foreclosure sale, Mortgagee may bid for and purchase the Property and shall
be
entitled to apply all or any part to the Indebtedness as a credit to the
purchase price.
Mortgagee
may from time to time rescind any notice of default or notice of sale before
any
Mortgagee’s sale as provided above in accordance with the laws of the State in
which the Land is located. The exercise by Mortgagee of such right of rescission
shall not constitute a waiver of any breach or default then existing or
subsequently occurring, or impair the right of Mortgagee to execute and deliver
to Mortgagee, as above provided, other declarations or notices of default to
satisfy the obligations of this Mortgage, or otherwise affect any provision,
covenant or condition of any Loan Document or any of the rights, obligations
or
remedies of Mortgagee hereunder or thereunder.
(d) Rights
and Remedies Cumulative.
Mortgagee shall have all powers, rights and remedies under applicable law
whether or not specifically or generally granted or described in this Mortgage.
Nothing contained herein shall be construed to impair or to
restrict such powers, rights and remedies or to preclude any procedures or
process otherwise available to mortgagees under mortgages in the State in which
the Land is located. Mortgagee shall be entitled to enforce the payment and
performance of the Indebtedness or the Obligations and to exercise all rights
and powers under this Mortgage or under any other Loan Document or other
agreement of any laws now or hereafter in force, notwithstanding the fact that
some or all of the Indebtedness and the Obligations may now or hereafter be
otherwise secured, whether by Mortgage, mortgage, pledge, lien, assignment
or
otherwise. Neither the acceptance of this Mortgage nor its enforcement, whether
by court action or pursuant to the power of sale or other powers contained
herein, shall prejudice or in any manner affect Mortgagee’s right to realize
upon or enforce any other rights or security now or hereafter held by Mortgagee.
Mortgagee shall be entitled to enforce this Mortgage and any other rights or
security now or hereafter held by Mortgagee in such order and manner as
Mortgagee may in its absolute discretion determine. No remedy herein conferred
upon or reserved to Mortgagee is intended to be exclusive of any other remedy
contained herein or by law provided or permitted, but each shall to the extent
permitted by law be cumulative and in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity. Every power or
remedy given by any of the Loan Documents to Mortgagee may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee, and Mortgagee may pursue inconsistent remedies. By
exercising or by failing to exercise any right, option or election hereunder,
Mortgagee shall not be deemed to have waived any provision hereof or to have
released Mortgagor from any of the obligations secured hereby unless such waiver
or release is in writing and signed by Mortgagee.
(e) If
an
Event of Default is continuing or if Mortgagee shall have accelerated the
Indebtedness, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right, without notice, and without
regard to the occupancy or value of any security for the Indebtedness or the
insolvency of any party bound for its payment, to the appointment, at its
option, of itself as mortgagee in possession, or of a receiver to take
possession of and to operate the Property, and to collect and apply the
Rents.
(f) Expenditures
and Expenses.
In any
action to foreclose the lien hereof or otherwise enforce Mortgagee’s rights and
remedies hereunder, there shall be allowed and included as additional
Indebtedness all Costs (as defined in the Loan Agreement) which may be paid
or
incurred by or on behalf of Mortgagee. All Costs and such other costs, expenses
and fees as may be incurred by Mortgagee in the protection of the Property
and
the maintenance of the lien of this Mortgage, including, attorneys’ fees,
expenses and costs in any litigation or proceeding affecting this Mortgage,
the
Note, the other Loan Documents, the Property or the Accessories, including
probate, appellate, and bankruptcy proceedings, any post-judgment proceedings
to
collect or enforce any judgment or order relating to this Mortgage or the other
Loan Documents, to obtain any court order or the appointment of a receiver
to
enforce Mortgagee’s rights or in preparation for the commencement or defense of
any action or proceeding, shall be immediately due and payable to Mortgagee,
with interest thereon at the Default Rate, and shall be secured by this
Mortgage. This provision is separate and several and shall survive the merger
of
this provision into any judgment.
(g) From
time
to time upon written request of Mortgagee and presentation of this Mortgage
for
endorsement and without affecting the personal liability of any person for
payment of the Indebtedness or performance of the Obligations, Mortgagee may,
without liability therefor and without notice: reconvey all or any part of
the
Property; consent to the making of any map or plat thereof; join in granting
any
easement thereon; join in any declaration of covenants and restrictions; or
join
in any extension agreement or any agreement subordinating the lien or charge
hereof. Mortgagee may from time to time apply in any court of competent
jurisdiction for aid and direction in the enforcement of the rights and remedies
available hereunder, and Mortgagee or Mortgagee may obtain orders or decrees
directing or confirming or approving acts in the enforcement of such remedies.
Mortgagee has no obligation to notify any party of any pending sale or any
action or proceeding unless held or commenced and maintained by Mortgagee under
this Mortgage. Mortgagor shall pay to Mortgagee reasonable compensation and
reimbursement for services and expenses in the enforcement of the security
created hereunder, including reasonable attorneys’ fees. Mortgagor shall
indemnify Mortgagee against all losses, claims, demands and liabilities which
Mortgagee may incur, suffer or sustain in the execution of the security created
hereunder or in the performance of any act required or permitted hereunder
or by
law.
(h) In
addition to the rights and powers of sale granted under the preceding provisions
of this Subsection, if default is made in the payment of any installment of
the
Obligation, Mortgagee may at once or at any time thereafter while any matured
installment remains unpaid, without declaring the entire Obligation to be due
and payable, orally or in writing enforce this Mortgage and sell the Property
subject to such unmatured indebtedness and to the rights, powers, liens,
security interests and assignments securing or providing recourse for payment
of
such unmatured indebtedness, in the same manner, all as provided in the
preceding provisions of this Subsection. Sales made without maturing the
Obligation may be made hereunder whenever there is a default in the payment
of
any installment of the Obligation, without exhausting the power of sale granted
hereby, and without affecting in any way the power of sale granted under this
Subsection, the unmatured balance of the Obligation or the rights, powers,
liens, security interests and assignments securing or providing recourse for
payment of the Obligation.
(i) Sale
of a
part of the Property shall not exhaust the power of sale, but sales may be
made
from time to time until the Obligation is paid and performed in full. It is
intended by each of the foregoing provisions of this Subsection that Mortgagee
may sell not only the Land and the Improvements, but also the Accessories and
other interests constituting a part of the Property or any part thereof, along
with the Land and the Improvements or any part thereof, as a unit and as a
part
of a single sale, or may sell any part of the Property separately from the
remainder of the Property. It shall not be necessary to have present or to
exhibit at any sale any of the Property.
(j) It
is
agreed that, in any deeds, assignments or other conveyances given by Mortgagee,
any and all statements of fact or other recitals therein made as to the
occurrence or existence of any default, or as to the acceleration of the
maturity of the Obligation, or as to the request to sell, notice of sale, time,
place, terms and manner of sale, and receipt, distribution and application
of
the money realized therefrom, and, without being limited by the foregoing,
as to
any other act or thing having been duly done by or on behalf of Mortgagee shall
be taken by all courts of law and equity as prima facie evidence that the said
statements or recitals state facts and are without further question to be so
accepted, and Mortgagor does hereby ratify and confirm any and all acts that
Mortgagee may lawfully do in the premises by virtue hereof.
(k) Mortgagee
may proceed by suit or suits, at law or in equity, to enforce the payment and
performance of the Obligation in accordance with the terms hereof and of the
Loan Documents, to foreclose the liens and security interests of this Mortgage
as against all or any part of the Property, and to have all or any part of
the
Property sold under the judgment or decree of a court of competent
jurisdiction.
(l) Mortgagee
may require Mortgagor to assemble the Accessories or any part thereof, and
make
them available to Mortgagee at a place to be designated by Mortgagee which
is
reasonably convenient to Mortgagor and Mortgagee.
(m) After
notification, if any, hereafter provided in this Subsection, Mortgagee may
sell,
lease or otherwise dispose of, at the office of Mortgagee or on the Land or
elsewhere, as chosen by Mortgagee, all or any part of the Accessories, in their
then condition, or following any commercially reasonable preparation or
processing, and each Sale (as used in this Subsection, the term “Sale” means any
sale, lease, or other disposition made pursuant to this Subsection) may be
as a
unit or in parcels, by public or private proceedings, and by way of one or
more
contracts, and, at any Sale it shall not be necessary to exhibit the Accessories
or part thereof being sold. The Sale of any part of the Accessories shall not
exhaust Mortgagee’s power of sale, but Sales may be made from time to time until
the Obligation is paid and performed in full. Reasonable notification of the
time and place of any public Sale pursuant to this Subsection, or reasonable
notification of the time after which any private Sale is to be made pursuant
to
this Subsection, shall be sent to Mortgagor and to any other person entitled
under the Uniform Commercial Code in the jurisdiction in which the Property
is
located (the “Code”) to notice; provided that if the Accessories or part thereof
being sold are perishable, or threaten to decline rapidly in value, or are
of a
type customarily sold on a recognized market, Mortgagee may sell, lease or
otherwise dispose of the Accessories, or part thereof, without notification,
advertisement or other notice of any kind. It is agreed that notice sent or
given not less than five (5) calendar days prior to the taking of the action
to
which the notice relates, is reasonable notification and notice for the purposes
of this Subsection.
(n) Mortgagee
may retain the Accessories in satisfaction of the Obligation whenever the
circumstances are such that Mortgagee is entitled to do so under the
Code.
(o) Mortgagee
may buy the Accessories or any part thereof at any private sale, if the
Accessories or part thereof being sold are a type customarily sold in a
recognized market or a type subject to widely distributed standard price
quotations.
(p) If
any
payment under this Mortgage shall not be received by Mortgagee when due, a
late
charge of ten cents for each dollar of such payment shall become due to
Mortgagee. Such charge shall be payable with the payment next due and shall
be
added to the Obligations and be secured by this Mortgage.
(q) Mortgagee
shall have and may exercise any and all other rights and remedies which
Mortgagee may have at law or in equity, or by virtue of any Loan Document,
or
under the Code, or otherwise.
(r) Confession
of Judgment in Ejectment.
To the
extent permissible under Florida law, at any time after an Event of Default,
regardless of whether Mortgagee has asserted any other right or exercised any
other remedy under this Mortgage or any of the other Loan Documents, it shall
be
lawful for any attorney of any court to confess judgment in ejectment against
Mortgagor and all persons claiming under Mortgagor for the recovery by Mortgagee
of possession of all or any part of the Property, for which this Mortgage shall
be sufficient warrant. If for any reason after such action shall have commenced
the same shall be discontinued and the possession of the Property shall remain
in or be restored to Mortgagor, Mortgagee shall have the right upon subsequent
default or defaults to bring one or more action or actions as hereinabove set
forth to recover possession of all or any part of the Property.
Section
3.3 Mortgagee
as Purchaser.
If
Mortgagee is the purchaser of the Property or any part thereof, at any sale
thereof, whether such sale be under the power of sale hereinabove vested in
Mortgagee or upon any other foreclosure of the liens and security interests
hereof, or otherwise, Mortgagee shall, upon any such purchase, acquire good
title to the Property so purchased, free of the liens and security interests
hereof, unless the sale was made subject to an unmatured portion of the
Obligation and Mortgagee elects that no merger occur.
Section
3.4 Other
Rights of Mortgagee.
Should
any part of the Property come into the possession of Mortgagee, whether before
or after default, Mortgagee may use or operate the Property for the purpose
of
preserving it or its value, pursuant to the order of a court of appropriate
jurisdiction or in accordance with any other rights held by Mortgagee in respect
of the Property. Mortgagor covenants promptly to reimburse and pay to Mortgagee
on demand, at the place where the Obligation is payable, the amount of all
reasonable expenses (including the cost of any insurance, taxes or other
charges) incurred by Mortgagee in connection with Mortgagee’s custody,
preservation, use or operation of the Property, together with interest thereon
from the date incurred by Mortgagee at the rate provided in the Note for
past-due principal, and all such expenses, costs, taxes, interest and other
charges shall be and become a part of the Obligation. It is agreed, however,
that the risk of loss or damage to the Property is on Mortgagor, and Mortgagee
shall have no liability whatsoever for decline in value of the Property, for
failure to obtain or maintain insurance, or for failure to determine whether
insurance in force is adequate as to amount or as to the risks
insured.
Section
3.5 Possession
After Foreclosure.
If the
liens or security interests hereof shall be foreclosed by power of Mortgagee’s
sale, by judicial action or otherwise, the purchaser at any such sale shall
receive, as an incident to Mortgagee’s ownership, immediate possession of the
property purchased, and if Mortgagor or Mortgagor’s successors shall hold
possession of said property or any part thereof, subsequent to foreclosure,
Mortgagor and Mortgagor’s successors shall be considered as tenants at
sufferance of the purchaser at foreclosure sale (without limitation of other
rights or remedies, at a reasonable rental per day, due and payable daily,
based
upon the value of the portion of the Property so occupied), and anyone occupying
such portion of the Property after demand is made for possession thereof shall
be guilty of forcible detainer and shall be subject to eviction and removal,
forcible or otherwise, with or without process of law, and all damages by reason
thereof are hereby expressly waived.
Section
3.6 Application
of Proceeds.
The
proceeds from any sale, lease or other disposition made pursuant to this
Article, or the proceeds from the surrender of any insurance policies required
to be maintained hereunder, or any rental collected by Mortgagee from the
Property, or sums received pursuant to Section
5.1
hereof,
or proceeds from insurance which Mortgagee elects to apply to the Obligation
pursuant to Section
5.2
hereof,
shall be applied by Mortgagee as follows: first, to the payment of all expenses
of advertising, selling and conveying the Property or part thereof, including
reasonable attorneys’ fees and a reasonable commission to Mortgagee not to
exceed Five (5%) percent of the proceeds of the sale; second, to accrued
interest on the Obligation; third, to principal on the matured portion of the
Obligation; fourth, to prepayment of the unmatured portion, if any, of the
Obligation applied to installments of principal in inverse order of maturity;
and fifth, the balance, if any, remaining after the full and final payment
and
performance of the Obligation to the person or persons legally entitled
thereto.
Section
3.7 Abandonment
of Sale.
In the
event a foreclosure hereunder is commenced by Mortgagee in accordance with
Subsection
3.2(c)
hereof,
Mortgagee may, at any time before the sale, abandon the sale, and may then
institute suit for the collection of the Obligation and for the foreclosure
of
the liens and security interests hereof. If Mortgagee should institute a suit
for the collection of the Obligation and for a foreclosure of the liens and
security interests hereof, Mortgagee may, at any time before the entry of a
final judgment in said suit, dismiss the same and sell the Property or any
part
thereof in accordance with the provisions of this Mortgage.
Section
3.8 Payment
of Fees.
If any
part of the Obligation shall be collected or enforced by legal proceedings,
whether through a probate or bankruptcy court or otherwise, or shall be placed
in the hands of an attorney for collection after maturity, whether matured
by
the expiration of time or by an option given to the beneficiary to mature same,
or if Mortgagee becomes a party to any suit where this Mortgage or the Property
or any part thereof is involved, Mortgagor agrees to pay Mortgagee’s reasonable
attorneys’ and collection fees, and such fees shall be and become a part of the
Obligation.
Section
3.9 Indemnification
of Mortgagee.
Except
for gross negligence or willful misconduct, Mortgagee shall not be liable for
any act or omission or error of judgment. Mortgagee may rely on any document
believed by Mortgagee in good faith to be genuine. All money received by
Mortgagee shall, until used or applied as herein provided, be held in trust,
but
need not be segregated (except to the extent required by law), and Mortgagee
shall not be liable for interest thereon. Mortgagor shall indemnify Mortgagee
against all liability and expenses which Mortgagee may incur in the performance
of Mortgagee’s duties hereunder.
Section
3.10 Release
of Collateral.
Mortgagee may release, regardless of consideration, the obligation of any Person
or Persons liable for payment of any of the Obligations secured hereby, or
may
release any part of the Property or any other collateral now or hereafter given
to secure the payment of the Obligations or any part thereof, without impairing,
reducing or affecting the obligations of Mortgagor under the Loan Documents,
the
remainder of the security of this Mortgage or the priority of the rights created
by this Mortgage.
Section
3.11 Partial
Foreclosure.
Mortgagee may from time to time, to the extent permitted by law, take action
to
recover any sums, whether interest, principal or any other sums required to
be
paid under the Loan Documents, as the same become due, without prejudice to
the
right of Mortgagee thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Mortgagor existing when such earlier action
was commenced. Mortgagee may, to the extent permitted by law, at the Mortgage’s
option, cause this Mortgage to be foreclosed for any portion of the Obligations
or any other sums secured hereby which are then due and payable subject to
the
continuing lien of this Mortgage for the balance of the secured Obligations
not
then due.
ARTICLE
IV.
SECURITY
AGREEMENT
Section
4.1 Security
Agreement.
This
Mortgage is also a security agreement between Mortgagor, as debtor, and
Mortgagee, as secured party. The security interest created hereby is
specifically intended to cover and include all leases of the Property, if any,
presently existing or hereafter entered into (herein, together with all
amendments and supplements thereto made as provided therein, called the
“Leases”), between Mortgagor (or parties acting on behalf of Mortgagor), as
lessor or as successor to or assignee from the lessor, and tenants which occupy
the Property under the Leases, including all extended terms and all extensions
and renewals of the terms thereof, as well as any amendments to or replacements
of said Leases, together with all the right, title and interest of Mortgagor,
as
lessor thereunder, including, without limiting the generality of the foregoing,
the present and continuing right to make claim for, collect, receive and receipt
for any and all of the rents, charges and other revenues, rents, income,
revenues, issues and profits and moneys payable as damages or in lieu of rent
and moneys payable as the purchase price of the Property or any part thereof
or
of awards or claims for money and other sums of money payable or receivable
thereunder howsoever payable, and to bring actions and proceedings thereunder
or
for the enforcement thereof, and to do any and all things which Mortgagor or
any
lessor is or may become entitled to do under the Leases, provided, that this
provision shall not impair or diminish any obligation of Mortgagor under the
Leases, nor shall any obligation be imposed upon Mortgagee. Mortgagor, from
time
to time, upon each request of Mortgagee, promptly shall (a) execute and deliver
to Mortgagee all financing statements as required by Mortgagee in order to
establish or maintain the validity, perfection or priority of the security
interest with respect to the Accessories or fixtures; (b) pay to Mortgagee
on
demand all costs of preparation and filing of financing statements pursuant
hereto and all costs of Code searches reasonably required by Mortgagee; and
(c)
give to Mortgagee a certificate in form satisfactory to Mortgagee listing all
trade names of Mortgagor and under which Mortgagor operates or intends to
operate the Property or any part thereof, and give to Mortgagee advance written
notice of any proposed change of any such trade name and of any change of name
(or trade name or assumed name), identity or structure of
Mortgagor.
ARTICLE
V.
SPECIAL
PROVISIONS
Section
5.1 Condemnation
Proceeds.
Mortgagee shall be entitled to receive any and all sums which may be awarded
or
become payable to Mortgagor for the condemnation of the Property or any part
thereof, for public or quasi-public use, or by virtue of private sale in lieu
thereof, and any sums which may be awarded or become payable to Mortgagor for
damages caused by public works or construction on or near the Property. All
such
sums are hereby assigned to Mortgagee and Mortgagor shall, upon request of
Mortgagee, make, execute, acknowledge and deliver any and all additional
assignments and documents as may be necessary from time to time to enable
Mortgagee to collect and receipt for any such sums. Mortgagee shall not be,
under any circumstances, liable or responsible for failure to collect, or
exercise diligence in the collection of, any of such sums. Any sums received
by
Mortgagee as a result of condemnation shall be applied to installments on the
Obligation in inverse order of maturity.
Section
5.2 Insurance
Proceeds.
The
proceeds of any and all insurance upon the Property shall be collected by
Mortgagee and Mortgagee shall have the option, in Mortgagee’s sole discretion,
to apply any proceeds so collected either to the restoration of the Property
or
to the liquidation of the Obligation.
Section
5.3 Right
to Accelerate Upon Transfer.
If
Mortgagor shall sell, convey, assign or transfer all or any part of the Property
or any interest therein or (except as expressly otherwise provided in
Section
2.20)
any
beneficial interest in Mortgagor, Mortgagee may, at Mortgagee’s option, without
demand, presentment, protest, notice of protest, notice of intent to accelerate,
notice of acceleration or other notice, or any other action, all of which are
hereby waived by Mortgagor and all other parties obligated in any manner on
the
Obligation, declare the Obligation to be immediately due and payable, which
option may be exercised at any time following such sale, conveyance, assignment,
lease or transfer, and upon such declaration the entire unpaid balance of the
Obligation shall be immediately due and payable. Mortgagee may, in Mortgagee’s
sole discretion and at Mortgagor’s request, decide not to exercise said option,
in which event Mortgagee’s forbearance may be predicated on such terms and
conditions as Mortgagee may, in Mortgagee’s sole discretion, require, including,
but not limited to, Mortgagee’s approval of the transferee’s credit worthiness
and management ability, the execution and delivery to Mortgagee by transferee
prior to the sale, transfer, assignment, lease or conveyance of an assumption
agreement containing such terms as Mortgagee may require, including, but not
limited to, a payment of a part of the principal amount of the Obligation,
an
increase in the rate of interest payable on the Obligation, the payment of
an
assumption fee, a modification of the terms of the Obligation and such other
terms as Mortgagee may require, or Mortgagee may require any of such
modifications of the terms of the Obligation without requiring an assumption
thereof by the transferee. Should the Property be sold, traded, transferred,
assigned, exchanged, leased or otherwise disposed of without the prior consent
of Mortgagee and should payment of any portion of the Obligation thereafter
be
accepted by Mortgagee, such acceptance shall not be deemed a waiver of the
requirement of Mortgagee’s consent in writing thereto or with respect to any
other sale, trade, transfer, assignment, exchange, lease or other
disposition.
Section
5.4 Subordinate
Financing.
If
Mortgagor, without the prior written consent of Mortgagee, executes or delivers
any pledge, security agreement, mortgage or deed of trust covering all or any
portion of the Property (hereinafter called “Unauthorized Subordinate
Mortgage”), Mortgagee may, at Mortgagee’s option, which option may be
exercised at any time following such pledge, security agreement, mortgage
or deed of trust, without demand, presentment, protest, notice of protest,
notice of intent to accelerate, notice of acceleration or other notice, or
any
other action, all of which are hereby waived by Mortgagor and all other parties
obligated in any manner on the Obligation, declare the Obligation to be
immediately due and payable. In the event of consent by Mortgagee to the
granting of a subordinate mortgage, or in the event the above-described right
of
Mortgagee to declare the Obligation to be immediately due and payable upon
the
granting of a Unauthorized Subordinate Mortgage without the prior written
consent of Mortgagee is determined by a court of competent jurisdiction to
be
unenforceable under the provisions of any applicable law, Mortgagor will not
execute or deliver any subordinate mortgage unless (i) it shall contain express
covenants to the effect: (a) that the subordinate mortgage is in all respects
unconditionally subject and subordinate to the lien and security interest
evidenced by this Mortgage and each term and provision hereof; (b) that if
any
action or proceeding shall be instituted to foreclose the subordinate mortgage
(regardless of whether the same is a judicial proceeding or pursuant to a power
of sale contained therein), no tenant of any portion of the Property will be
named as a party defendant, nor will any action be taken with respect to the
Property which would terminate any occupancy or tenancy of the Property without
the prior consent of Mortgagee; (c) that the rents and profits, if collected
through a receiver or by the holder of the subordinate mortgage, shall be
applied first to the obligations secured by this Mortgage, including principal
and interest due and owing on or to become due and owing under the Loan
Agreement and the other indebtedness secured hereby, and then to the payment
of
maintenance, operating charges, taxes, assessments, and disbursements incurred
in connection with the ownership, operation and maintenance of the Property;
and
(d) that if any action or proceeding shall be brought to foreclose the
subordinate mortgage (regardless of whether the same is a judicial proceeding
or
pursuant to a power of sale contained therein), notice of the commencement
thereof will be given to Mortgagee contemporaneously with the commencement
of
such action or proceeding; and (ii) a copy thereof shall have been delivered
to
Mortgagee not less than ten (10) days prior to the date of the execution of
such
subordinate mortgage. Notwithstanding anything contained herein to the contrary,
this provisions shall only be enforceable to the extent permitted under the
laws
of the State. For purposes of this Section, “Unauthorized Subordinate Mortgage
shall not mean any mortgage covering all or any portion of the Property given
by
Mortgagee in connection with that certain loan in the combined amount of up
to
Twenty Five Million ($25,000,000) Dollars to Xxxxxxxxx International Bank and
Resorts Funding Group, LLC both of whom are current stockholders and investors
of the Mortgagor; provided, however, that any such loan to Xxxxxxxxx
International Bank and Resorts Funding Group, LLC and the mortgage given in
connection therewith shall be subordinate to the Loan.
Section
5.5 Intentionally
Deleted.
Section
5.6 Taxes
Imposed on Mortgagee.
Mortgagor shall pay any taxes (except any federal, state, or local income taxes
measured by the income of Mortgagee from all sources) imposed on Mortgagee
by
reason of its ownership of this Mortgage and the Note.
Section
5.7 Recording,
Filing and Other Fees.
Mortgagor shall pay all recording and filing fees, all recording taxes and
all
other costs and expenses in connection with the preparation, execution and
recordation and other manner of perfection of the Loan Documents, and shall
reimburse Mortgagee on demand for all costs and expenses of any kind incurred
by
Mortgagee in connection therewith (including, without limitation, attorneys’
fees). Mortgagor will, at any time on request of Mortgagee, execute or cause
to
be executed financing statements, continuation statements, security agreements,
or the like, in respect of any Accessories. Mortgagor shall pay all filing
fees,
including fees for filing continuation statements, in connection with such
financing statements.
Section
5.8 No
Release.
Mortgagor and any other Person now or hereafter obligated for the payment or
performance of all or any part of the Obligations shall not be released from
paying and performing such Obligations and the lien of this Mortgage shall
not
be affected by reason of: (a) the failure of Mortgagee to comply with any
request of Mortgagor, or of any other Person so obligated, to take action to
foreclose this Mortgage or otherwise enforce any of the provisions of this
Mortgage or of any of the Obligations secured by this Mortgage; (b) the release,
regardless of consideration, of the obligations of any Person or Persons liable
for payment or performance of the Obligations or any part thereof; or (c) any
agreement or stipulation extending the time of payment or modifying the terms
of
the Note, and in the event of such agreement or stipulation, Mortgagor and
all
such other Persons shall remain liable under the Loan Documents, as amended
by
such agreement or stipulation unless expressly released and discharged in
writing by Mortgagee.
Section
5.9 Interest
After Maturity.
The
principal amount of the Obligations and any other amounts secured by this
Mortgage and, to the extent permitted by law, any accrued interest thereon,
shall bear interest from and after maturity, whether or not resulting from
acceleration, at the Default Rate, but this shall not constitute an extension
of
time for payment of the Obligations or such other amounts or accrued
interest.
Section
5.10 Indemnification
Against Liabilities.
To the
extent not caused by the gross negligence or willful misconduct of Mortgagee,
Mortgagor will protect, indemnify, save harmless and defend Mortgagee from
and
against any and all liabilities, obligations, claims, damages, penalties, causes
of action, costs and expenses (including, without limitation, reasonable
attorneys’ fees and expenses) imposed upon or incurred by or asserted against
Mortgagee by reason of: (a) any accident or injury to or death of Persons or
loss of or damage to or loss of the use of property occurring on or about the
Property or any part thereof or the adjoining sidewalks or curbs, if any,
streets, alleys or ways; (b) any use, non-use or condition of the Property
or any part thereof or the adjoining sidewalks or curbs, if any, streets,
alleys or ways; (c) any failure on the part of Mortgagor to perform or comply
with any of the terms of the Mortgage; (d) performance of any labor or services
or the furnishing of any materials or other property in respect of the Property
or any part thereof made or suffered to be made by or on behalf of Mortgagor;
(e) any negligence or tortious act on the part of Mortgagor or any of its
agents, contractors, lessees, licensees or invitees; or (f) any work in
connection with any alterations, changes, new construction or demolition of
the
Property. Mortgagor will pay and save Mortgagee harmless against any and all
liability with respect to any intangible personal property tax or similar
imposition of the Governing Jurisdiction or any subdivision or authority thereof
now or hereafter in effect, to the extent that the same may be payable by
Mortgagee in respect of this Mortgage, the Note or the indebtedness secured
thereby. All amounts payable to Mortgagee under this Section 5.10
shall be
payable on demand and shall be deemed indebtedness secured by this Mortgage
and
any such amounts which are not paid within ten (10) days after demand therefor
by Mortgagee shall bear interest at the Default Rate from the date of such
demand. If any action, suit or proceeding is brought against Mortgagee by reason
of any such occurrences, Mortgagor, upon request of Mortgagee, will, at
Mortgagor’s expense, resist and defend such action, suit or proceeding or cause
the same to be resisted or defended by counsel designated by Mortgagor and
approved by Mortgagee, as the case may be.
Section
5.11 Notice
of Acceleration.
Whenever Mortgagee in this Mortgage is given the option to accelerate the
maturity of all or part of the Obligation upon a Default, Mortgagee may, to
the
extent permitted by law, do so without prior notice or demand to or upon
Mortgagor except as otherwise specifically provided herein.
Section
5.12 Mortgagor’s
Representations.
Mortgagor represents and warrants that: (a) it is duly organized, validly
existing and in good standing under the laws of the State of Florida, and has
the right and power and has obtained all necessary authorization to execute
and
deliver this Mortgage and the other Loan Documents to which it is a party and
to
perform its obligations thereunder in accordance with the terms thereof; (b)
the
consent of any governmental body, agency or entity is not required (or if
required has been obtained) in connection with the execution and delivery of
this Mortgage; (c) the execution, delivery, and performance by Mortgagor of
the
Loan Documents does not: (i) violate: (A) any existing provision of law, rule,
or regulation; (B) Mortgagor’s articles of organization and regulations; (C) any
provision of any indenture, agreement or other instrument of which Mortgagor
is
a party or by which it is bound; or (D) any order of any court or other agency
of government binding upon Mortgagor; or (ii) result in the creation of any
lien, charge, or encumbrance other than the lien created by this Mortgage;
and
(d) the Obligations are not also secured, directly or indirectly, by “margin
securities” or “stock” as defined, respectively, in Regulation G and Regulation
U issued by the Board of Governors of the Federal Reserve System.
Section
5.13 After
Acquired Property.
To the
extent permitted by law, all real or personal property now or hereafter attached
to, adjoining or used for or in connection with the Property or any part thereof
which is acquired by Mortgagor on or after the date hereof shall, immediately
upon the acquisition thereof by Mortgagor, and without any further mortgage,
conveyance, assignment, security agreement or transfer, become subject to the
lien of this Mortgage. Mortgagor shall execute, acknowledge and deliver to
Mortgagee any documents and instruments which Mortgagee may reasonably request
from time to time for better assuring, conveying, assigning, transferring,
confirming or perfecting Mortgagee’s security and rights under this
Mortgage.
Section
5.14 Further
Assurances.
Mortgagor will, at its sole cost and expense, within ten (10) days of a request
by Mortgagee for the same, do, execute, acknowledge and deliver and
appropriately file and record, all and every such further acts, conveyances,
mortgages, assignments, financing statements, supplemental mortgages, notices,
estoppel certificates and assurances as Mortgagee shall, from time to time,
require for accomplishing the purposes of this Mortgage and shall pay the
expenses of the filing or recording of the same and reimburse Mortgagee for
its
reasonable legal expenses incurred in connection with the preparation or review
thereof. In default of any such execution, acknowledgement, delivery, filing
or
recording, Mortgagee may, without limitation, exercise the rights conferred
upon
it in Section 2.15
hereof
to execute, acknowledge and file or record any such instrument for and on behalf
of Mortgagor, as attorney-in-fact of Mortgagor (which appointment is coupled
with an interest and irrevocable), and shall be entitled to reimbursement for
its reasonable expenses in connection therewith.
Section
5.15 Compliance
with International Trade Control Laws and OFAC Regulations.
Mortgagor is not now nor shall it be at any time prior to or at the Closing
an
individual, corporation, partnership, joint venture, association, joint stock
company, trust, trustee, estate, limited liability company, unincorporated
organization, real estate investment trust, government or any agency or
political subdivision thereof, or any other form of entity (collectively, a
“Person”)
with
whom a United States citizen, entity organized under the laws of the United
States or its territories or entity having its principal place of business
within the United States or any of its territories (collectively, a
“U.S.
Person”),
is
prohibited from transacting business of the type contemplated by this Agreement,
whether such prohibition arises under United States law, regulation, executive
orders and lists published by the Office of Foreign Assets Control, Department
of the Treasury (“OFAC”)
(including those executive orders and lists published by OFAC with respect
to
Persons that have been designated by executive order or by the sanction
regulations of OFAC as Persons with whom U.S. Persons may not transact business
or must limit their interactions to types approved by OFAC (“Specially
Designated Nationals and Blocked Persons”))
or
otherwise. Neither Mortgagor nor any Person who owns an interest in Mortgagor
(collectively, a “Mortgagor
Party”)
is now
nor shall be at any time prior to or at the Closing a Person with whom a U.S.
Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z),
as periodically amended (“Financial
Institution”),
is
prohibited from transacting business of the type contemplated by this Agreement,
whether such prohibition arises under United States law, regulation, executive
orders and lists published by the OFAC (including those executive orders and
lists published by OFAC with respect to Specially Designated Nationals and
Blocked Persons) or otherwise.
Section
5.16 Mortgagor’s
Funds.
Mortgagor has taken, and shall continue to take until the Maturity Date on
the
Note, such measures as are required by applicable law to assure that the funds
used to pay to Mortgagee are derived: (i) from transactions that do not violate
United States law nor, to the extent such funds originate outside the United
States, do not violate the laws of the jurisdiction in which they originated;
and (ii) from permissible sources under United States law and to the extent
such
funds originate outside the United States, under the laws of the jurisdiction
in
which they originated.
Section
5.17 Anti-Money
Laundering Laws.
To the
best of Mortgagor’s knowledge after making due inquiry, neither Mortgagor nor
any Mortgagor Party, nor any Person providing funds to Mortgagor: (i) is under
investigation by any governmental authority for, or has been charged with,
or
convicted of, money laundering, drug trafficking, terrorist-related activities,
any crimes which in the United States would be predicate crimes to money
laundering, or any violation of any Anti Money Laundering Laws (as hereinafter
defined in this Section); (ii) has been assessed civil or criminal penalties
under any Anti-Money Laundering Laws; or (iii) has had any of its funds seized
or forfeited in any action under any Anti Money Laundering Laws. For purposes
of
this Subsection (i), the term “Anti-Money
Laundering Laws”
shall
mean all applicable laws, regulations and sanctions, state and federal, criminal
and civil, that: (w) limit the use of and/or seek the forfeiture of proceeds
from illegal transactions; (x) limit commercial transactions with designated
countries or individuals believed to be terrorists, narcotics dealers or
otherwise engaged in activities contrary to the interests of the United States;
(y) require identification and documentation of the parties with whom a
Financial Institution conducts business; or (z) are designed to disrupt the
flow
of funds to terrorist organizations. Such laws, regulations and sanctions shall
be deemed to include the USA PATRIOT Act of 2001, Pub. L. No. 107-56 (the
“Patriot
Act”),
the
Bank Secrecy Act of 1970, as amended, 31 U.S.C. Section 5311 et. seq., the
Trading with the Enemy Act, 50 U.S.C. App. Section 1 et. seq., the International
Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction
regulations promulgated pursuant thereto by the OFAC, as well as laws relating
to prevention and detection of money laundering in 18 U.S.C. Sections 1956
and
1957.
Section
5.18 Mortgagor
Compliance with Patriot Act.
Mortgagor is in compliance with any and all applicable provisions of the Patriot
Act.
Section
5.19 Cooperation
with Mortgagee.
For a
period of two (2) years after the Maturity Date on the Note, Mortgagor agrees
to
cooperate with Mortgagee, and to cause each Mortgagor Party to cooperate with
Mortgagee, in providing such additional information and documentation on
Mortgagor’s and each Mortgagor Party’s legal or beneficial ownership, policies,
procedures (to the extent required by applicable laws) and sources of funds
as
Mortgagee deems reasonably necessary or prudent to enable Mortgagee to comply
with Anti-Money Laundering Laws now in existence or hereafter enacted or
amended.
Section
5.20 Mortgagor’s
representations, warranties and agreements set forth in this Agreement shall
survive the Closing or termination of this Agreement. Mortgagor hereby
acknowledges and agrees that it is a requirement of this Agreement and of
Mortgagor’s obligations hereunder that all of Mortgagor’s representations and
warranties contained herein shall be true and correct on the date hereof and
remain true and correct through and including the Maturity Date of the Note,
and
that any inaccuracy in Mortgagor’s representations and warranties and/or
Mortgagor’s failure to notify Mortgagee prior to the Maturity Date of the Note
of any inaccuracies therein shall be defaults by Mortgagor under this
Agreement.
ARTICLE
VI.
MISCELLANEOUS
Section
6.1 Release.
If all
of Mortgagor’s obligations under the Loan Documents are paid in full in
accordance with the terms of the Loan Documents, no event of default then exists
under the Loan Documents, and if Mortgagor shall well and truly perform all
of
Mortgagor’s covenants contained herein, then this conveyance shall become null
and void and be released at Mortgagor’s request and expense.
Section
6.2 Rights
Cumulative.
Mortgagee shall have all rights, remedies and recourse granted herein, in the
Loan Documents and available at law or in equity (including, without limitation,
those granted by the Code and applicable to the Property or any portion
thereof), and the same (a) shall be cumulative and concurrent; (b) may be
pursued separately, successively or concurrently against Mortgagor or others
obligated for the Obligation or any part thereof, or against any one or more
of
them, or against the Property, at the sole discretion of Mortgagee; (c) may
be
exercised as often as occasion therefor shall arise, it being agreed by
Mortgagor that the exercise, discontinuance of the exercise of or failure to
exercise any of the same shall in no event be construed as a waiver or release
thereof or of any other right, remedy or recourse; and (d) are intended to
be,
and shall be, nonexclusive. All rights and remedies of Mortgagee hereunder
and
under the other Loan Documents shall extend to any period after the initiation
of foreclosure proceedings, judicial or otherwise, with respect to the
Property.
Section
6.3 Waiver.
Any and
all covenants in this Mortgage may, from time to time, by instrument in writing
signed by Mortgagee and delivered to Mortgagor, be waived to such extent and
in
such manner as Mortgagee may desire, but no such waiver shall ever affect or
impair Mortgagee’s rights, remedies, powers, privileges, liens, titles and
security interests hereunder except to the extent so specifically stated in
such
written instrument. No waiver of any default on the part of Mortgagor or a
breach of any of the provisions of this Mortgage or of any Loan Document shall
be considered a waiver of any other or subsequent default or breach, and no
delay or omission in exercising or enforcing the rights and powers herein
granted shall be construed as a waiver of such rights and powers, and likewise
no exercise or enforcement of any rights or powers hereunder shall be held
to
exhaust such rights and powers, and every such right and power may be exercised
from time to time. No notice to or demand on Mortgagor in any case shall of
itself entitle Mortgagor to any other or further notice or demand in similar
or
other circumstances. The granting of any consent or approval by Mortgagee shall
be limited to the specific instance and shall not waive or exhaust the
requirement of consent or approval in any other instance. Except as otherwise
specified herein, in any instance hereunder where Mortgagee’s approval or
consent is required or the exercise of Mortgagee’s judgment is required, the
granting or denial of such approval or consent and the exercise of such judgment
shall be within the sole discretion of Mortgagee, and Mortgagee shall not for
any reason or to any extent, be required to grant such approval or consent
or
exercise such judgment in any particular manner regardless of the reasonableness
of the request or of Mortgagee’s judgment.
Section
6.4 Payments.
Acceptance by Mortgagee of any payment in an amount less than the amount then
due shall be deemed an acceptance on account only, and the failure to pay the
entire amount then due shall be and continue to be a default.
Section
6.5 Intentionally
Deleted.
Section
6.6 Change
of Security.
Any
part of the Property may be released, regardless of consideration, by Mortgagee
from time to time without impairing, subordinating or affecting in any way
the
lien, security interest and other rights hereof against the remainder. The
lien,
security interest and other rights granted hereby shall not be affected by
any
other security taken for the Obligation or any part thereof. The taking of
additional security, or the extension, renewal or rearrangement of the
Obligation or any part thereof, shall not release or impair the lien, security
interest and other rights granted hereby, or affect the liability of any
endorser or guarantor or improve the right of any junior lienholder; and this
Mortgage, as well as any instrument given to secure any renewal, extension
or
rearrangement of the Obligation or any part thereof, shall be and remain a
first
and prior lien, except as otherwise provided herein, on all of the Property
not
expressly released until the Obligation is fully paid and
performed.
Section
6.7 Controlling
Agreement.
The
parties hereto intend to conform strictly to the applicable usury laws. All
agreements between Mortgagor (and any other party liable for any part of the
Obligation) and Mortgagee, whether now existing or hereafter arising and whether
written or oral, are expressly limited so that in no event whatsoever, whether
by reason of acceleration of the maturity of the Obligation or otherwise, shall
the interest contracted for, charged or received by Mortgagee hereunder or
otherwise exceed the maximum amount permissible under applicable law. If from
any circumstances whatsoever interest would otherwise be payable to Mortgagee
in
excess of the maximum lawful amount, the interest payable to Mortgagee shall
be
reduced automatically to the maximum amount permitted under applicable law.
If
Mortgagee shall ever receive anything of value deemed interest under applicable
law which would apart from this provision be in excess of the maximum lawful
amount, the amount which would have been excessive interest shall be applied
to
the reduction of the principal amount owing on the Obligation in inverse order
of maturity and not to the payment of interest, or if such amount which would
have been excessive interest exceeds the unpaid principal balance of the
Obligation, such excess shall be refunded to Mortgagor, or to the maker of
the
Note or other evidence of indebtedness if other than Mortgagor. All interest
paid or agreed to be paid to Mortgagee shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the
full
stated term, including any renewal or extension, of such indebtedness so that
the amount of interest on account of such indebtedness does not exceed the
maximum permitted by applicable law. The terms and provisions of this Section
shall control and supersede every other provision of all existing and future
agreements between Mortgagor, the maker of the Note or other evidence of
indebtedness if other than Mortgagor, and Mortgagee.
Section
6.8 Effect
of Transfer on Mortgagor’s Liability.
If the
ownership (legal or beneficial) of the Property or any part thereof becomes
vested in a person other than Mortgagor, or in the event of a change in
ownership (legal or beneficial) of any Mortgagor other than an individual,
Mortgagee may, without notice to or consent of Mortgagor or Mortgagor’s
successors, deal with such successor or successors in interest with reference
to
this Mortgage and the Obligation either by way of forbearance on the part of
Mortgagee, or extension of time of payment of the Obligation, or release of
all
or any part of the Property or any other property securing payment of the
Obligation, or otherwise, without in any way modifying or affecting Mortgagee’s
rights and liens hereunder or the liability of Mortgagor or any other party
liable for payment of the Obligation, in whole or in part.
Section
6.9 Waiver
of Right to Marshal.
Mortgagor hereby waives all rights of marshaling in event of any foreclosure
of
the liens and security interests hereby created.
Section
6.10 Subrogation.
To the
extent that proceeds of the Obligation are used to renew, extend or pay any
outstanding debt or to perform any obligation, such proceeds have been advanced
by Mortgagee at Mortgagor’s request, and Mortgagee shall be subrogated to all
liens, security interests, rights, priorities, powers, titles, equities and
interests owned or held by any owner or holder of such outstanding debt or
obligation, however remote, irrespective of whether the same are released of
record, and all of the same are recognized as valid and subsisting and are
renewed, continued and preserved in force to secure the Obligation; provided,
however, that if and to the extent Mortgagee desires in each case, the terms
and
provisions hereof and of the other Loan Documents shall govern the rights and
remedies of Mortgagee and shall supersede the terms, provisions, rights, and
remedies under any lien, security interest, charge or other encumbrance to
which
Mortgagee is subrogated hereunder.
Section
6.11 Covenant
to Perform.
Mortgagor and each subsequent owner of the Property, or any part thereof,
covenants and agrees that Mortgagor and any subsequent owner will perform or
cause to be performed, each and every condition, term, provision and covenant
of
this Mortgage.
Section
6.12 Notices.
All
notices, consents, approvals and requests required or permitted hereunder or
under any other Loan Document shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, return receipt requested or (b) expedited prepaid
delivery service, either commercial or United States Postal Service, with proof
of attempted delivery, and by telecopier (with answer back acknowledged),
addressed as follows (or at such other address and a person as shall be
designated from time to time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Section):
|
If
to Mortgagee:
|
Xxxxxxx
Funding, Inc.
|
|
Xxx
Xxxxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxxxxxxx,
Xxx Xxxxxx 00000
|
|
|
Attention:
Xxxxxxx Xxxxxx
|
|
|
Facsimile
No. (000) 000-0000
|
|
|
With
a copy to:
|
Cole,
Schotz, Meisel, Xxxxxx & Xxxxxxx P.A.
|
|
00
Xxxx Xxxxxx
|
|
|
Xxxxxxxxxx,
Xxx Xxxxxx 00000-0000
|
|
|
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
|
|
|
Facsimile
No.: (000) 000-0000
|
|
|
If
to Mortgagor:
|
Costa
Xxxxxx XX Real Estate, LLC
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|
With
a copy to:
|
Xxxxx
X. Xxxxxxxx, Esq.
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|
0000
Xxxx Xxxx Xxxx
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|
|
Xxxxxxx,
Xxxxxxx 00000
|
|
|
Facsimile
No.: (000) 000-0000
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|
|
Xxxxxx
X. Xxxxx, P.A.
|
|
|
00
X. Xxxx Xxxxxx
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|
|
Xxxxxxx,
Xxxxxxx 00000
|
|
|
Facsimile
No.: (000) 000-0000
|
A
notice
shall be deemed to have been given: in the case of hand delivery, at the time
of
delivery; in the case of registered or certified mail, when delivered or the
first attempted delivery on a business day; or in the case of expedited prepaid
delivery and telecopy, upon the first attempted delivery on a business
day.
Section
6.13 No
Representations by Mortgagee.
By
accepting or approving anything required to be observed, performed or fulfilled,
or to be given to Mortgagee pursuant to this Mortgage, including, without
limitation, any certificate, balance sheet, statement of profit and loss or
other financial statement, survey, appraisal or insurance policy, Mortgagee
shall not be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation with respect thereto by
Mortgagee.
Section
6.14 Certain
Definitions.
The
following terms shall, for all purposes of this Mortgage, have the respective
meanings herein specified unless the context otherwise requires:
(a) the
“Mortgagor” shall mean Mortgagor herein named any and subsequent owner or owners
of the Property and its or their respective heirs, legal representatives,
successors and assigns;
(b) the
“Mortgagee” shall mean Mortgagee herein named and any subsequent holder or
holders of this Mortgage, and its or their respective heirs, legal
representatives, successors and assigns;
(c) “Person”
(whether or not capitalized) shall mean an individual, corporation, limited
liability company, partnership, joint venture, trust, unincorporated
organization or government, or any agency or political subdivision thereof,
or
any business or legal entity; and
(d) “Lease”
shall mean every lease, license or occupancy agreement for the use or hire
of
all or any portion of the Property which shall be in effect at the date hereof,
or which shall hereafter be entered into by or on behalf of
Mortgagor.
Section
6.15 Miscellaneous.
(a) This
Mortgage and its provisions cannot be changed, waived, discharged or terminated
orally but only by an agreement in writing, signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought, and
the
same shall then be effective only for the period and on the conditions and
for
the specific instances and purposes specified in such writing. No notice to
or
demand on Mortgagor in any case shall entitle Mortgagor to any other or further
notice or demand in similar or other circumstances. No course of dealing between
Mortgagor and Mortgagee or any failure or delay on the part of Mortgagee in
exercising any rights or remedies hereunder shall operate as a waiver of any
rights or remedies of Mortgagee and no single or partial exercise of any rights
or remedies hereunder shall operate as a waiver or preclude the exercise of
any
other rights or remedies hereunder.
(b) Wherever
pursuant to this Mortgage, Mortgagee exercises any right given to it to approve
or disapprove, or any arrangement or term is to be satisfactory to Mortgagee,
the decision of Mortgagee to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the
sole
discretion of Mortgagee and shall be final and conclusive.
(c) This
Mortgage shall be construed without any regard to any presumption or rule
requiring construction against the party causing such instrument or any portion
thereof to be drafted.
(d) All
terms
and words used in this Mortgage, regardless of the number or gender in which
they are used, shall be deemed to include any other number and any other gender
as the context may require.
(e) The
paragraph headings in this Mortgage are for convenience of reference only and
shall not limit or otherwise affect any of the terms hereof.
(f) If
any
words or phrases in this Mortgage have been stricken out or otherwise
eliminated, this Mortgage shall be construed as if the words or phrases so
stricken out or otherwise eliminated were never included in this Mortgage and
no
implication or inference shall be drawn from the fact that said words or phrases
were so stricken out or otherwise eliminated.
(g) The
words
“herein,” “hereby,” “hereunder,” and words of similar import shall be construed
to refer to this Mortgage as a whole, and not to any particular Section, unless
expressly so stated.
(h) All
covenants contained herein shall inure to the benefit of and shall be binding
upon the Mortgagor and Mortgagee and shall run with the Property until the
Obligations have been satisfied.
(i) Mortgagor
is hereby prohibited from exercising against Mortgagee any right or remedy
which
it might otherwise be entitled to exercise against any one or more (but less
than all) of the individual parties constituting Mortgagee, including, without
limitation, any right of set-off or any defense.
Section
6.16 Mortgagor’s
Waivers.
Mortgagor, for itself and its successors and assigns, hereby irrevocably waives
and releases to the extent permitted by law, and whether now or hereafter in
force, (a) the benefit of any and all valuation and appraisement laws; (b)
any
right of redemption after the date of any sale of the Property upon foreclosure,
whether statutory, common law or otherwise, in respect of the Property; (c)
all
exemption laws whatsoever and all moratoriums, extensions or stay laws or rules,
or orders of Court in the nature of any one or more of them; and (d) all right
and possibility of dower, curtesy and homestead in and to the
Property.
Section
6.17 Environmental
Matters.
(a) Mortgagor
represents and warrants that to the best of its knowledge, there are no
Hazardous Substances or Hazardous Materials (hereinafter defined) in or on
the
Property, other than such as may have been disclosed to Mortgagee in writing
prior to the date hereof.
(b) Without
Mortgagee’s prior consent, which may be granted or withheld in Mortgagee’s sole
discretion, Mortgagor shall make or permit no use of the Property that would
involve the generation, storage, treatment, discharge, handling, refining,
release or disposal of any Hazardous Substances.
(c) At
its
sole cost and expense, Mortgagor shall, and shall cause any tenant or occupant
of the Property to, comply with all applicable federal, state and local laws,
rules, regulations and orders with respect to the discharge, generation,
removal, transportation, storage, treatment and handling of Hazardous
Substances, including but not limited to the Federal Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended by the Superfund
Amendment and Reauthorization Act of 1986, the federal Resource Conservation
and
Recovery Act, as amended, the Federal Water Pollution Control Act, the Federal
Clean Air Act, the federal regulations promulgated pursuant to any of the
foregoing, and any and all environmental, health, or safety laws of the State,
as amended from time to time, and any regulations promulgated thereunder, pay
immediately when due the cost of removal of Hazardous Substances, and keep
the
Property free and clear of any lien imposed pursuant to such laws, rules,
regulations or orders. In the event Mortgagor fails to do so, Mortgagee may
declare this Mortgage to be in default.
(d) Mortgagor
shall indemnify Mortgagee and hold Mortgagee harmless from and against all
loss,
cost, damage and expense (including, without limitation, reasonable attorneys’
fees and costs incurred in the investigation, defense and settlement of claims)
that Mortgagee may incur as a result of or in connection with the assertion
against Mortgagee or the Property of any claim relating to the presence or
removal of any hazardous waste or substance referred to in this paragraph,
or
compliance with any federal, state or local laws, rules, regulations or orders
relating thereto unless such claim arises solely from Mortgagee’s gross
negligence or willful misconduct.
(e) The
term
“Hazardous Substances” or “Hazardous Materials” as used in this Mortgage shall
include, without limitation, gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, or any other substance or material defined as a hazardous or toxic
substance or material by any federal, state or local law, ordinance, rule,
or
regulation.
(f) Mortgagor
shall notify Mortgagee immediately in writing upon learning of:
(i) any
spill, discharge or release of any Hazardous Substances on or near the Property
that may involve a cleanup cost of One Thousand and 00/100 ($1,000.00) Dollars
or more;
(ii) any
circumstances that may result in a violation of this Section
6.17;
(iii) any
governmental inquiry or inspection is undertaken or notice issued by any
governmental agency or any source whatsoever with respect to Hazardous Materials
on, from, affecting, or used, stored or discharged by any occupant of, the
Property.
(g) If
any
investigation, environmental report or governmental investigation or order
indicates that there may exist any damage or risk to the Property, or any
liability of Mortgagor relating to any Hazardous Materials, or other
environmental conditions with respect to the Property, then Mortgagee may
require Mortgagor to furnish immediately an indemnity bond in an amount
determined by Mortgagee, in its discretion, to be sufficient to pay all actual
and estimated cleanup costs and to protect against any liens that may arise
with
respect to such potential cleanup costs. Mortgagee’s demand that Mortgagor post
any bond or other security shall not be a waiver of any default or of any other
right or remedy available to Mortgagee.
(h) The
obligations and liabilities of Mortgagor under this Section 6.17
shall
survive any entry of a judgment of foreclosure or the delivery of a deed in
lieu
of foreclosure of this Mortgage.
Section
6.18 Asbestos.
(a) Mortgagor
represents and warrants that, to the actual knowledge of Mortgagor, there is
no
friable asbestos or any material containing asbestos and deemed hazardous by
federal, state or local laws, rules, regulations or orders respecting such
material (“Asbestos”) on the Property.
(b) Mortgagor
shall not install or permit to be installed Asbestos in the Property. With
respect to any such material currently present in the Property, Mortgagor shall
promptly comply with such federal, state or local laws, rules, regulations
or
orders at Mortgagor’s sole cost and expense. If Mortgagor shall fail to comply
with any such law, rule, regulation or order such failure shall constitute
an
Event of Default.
(c) Mortgagor
(x) shall protect, defend, indemnify and hold Mortgagee harmless from and
against all loss, cost, damage and expense (including, without limitation,
reasonable attorneys’ fees and costs incurred in the investigation, defense and
settlement of claims) that Mortgagee may incur as a result of or in connection
with the assertion against Mortgagee or the Property of any claim relating
to
(i) the presence or removal of any asbestos or asbestos containing substance,
including, without limitation, the cost of such removal, or (ii) compliance
with
any federal, state or local laws, rules, regulations or orders relating thereto,
and (y) guarantees to Mortgagee the payment of all costs and expenses which
may
be incurred by Mortgagee in performing any Asbestos remedial action not
performed (or caused to be performed) by Mortgagor as required under this
Mortgage.
(d) The
obligations and liabilities of Mortgagor under this Section 6.18
shall
survive any entry of a judgment of foreclosure or the delivery of a deed in
lieu
of foreclosure of this Mortgage.
Section
6.19 Modifications.
This
Mortgage, the Note and all other Obligations are subject to Modification (as
defined below). To the extent permitted by law, this Mortgage secures all
Modifications from the date upon which this Mortgage was originally recorded,
including future loans and extensions of credit and changes in the interest
rate, due date, amount or other terms and conditions of any
Obligations.
“Modification”
shall have the meaning set forth in N.J.S.A. 46:9-8.2
et
seq.,
which
statute relates, inter
alia,
to
changes in the interest rate, due date or other terms or conditions of a
“mortgage loan,” or future advances pursuant to a “line of credit,” as defined
in that statute.
Section
6.20 No
Cooperative or Condominium.
Mortgagor shall not operate the Property, or permit same to be operated as
a
cooperative or condominium building(s) in which the tenants or occupants
participate in the ownership, control, or management of the Property or any
part
thereof, as tenants, stockholders or otherwise.
Section
6.21 Severability.
If any
provision of this Mortgage or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the remainder of this Mortgage nor the application of
such provision to any other person or circumstances shall be affected thereby,
but rather the same shall be enforced to the greatest extent permitted by law.
If the rights and liens created by this Mortgage shall be held by a court of
competent jurisdiction to be invalid or unenforceable as to any part of the
Obligation, the portion of the Obligation which as the result of such invalidity
or unenforceability is no longer secured by the liens and security interests
herein granted shall be completely paid prior to the payment of the portion,
if
any, of the Obligation which shall continue to be secured hereunder, and all
payments made on the Obligation shall be considered to have been paid on and
applied first to the complete payment of the unsecured portion of the
Obligation.
Section
6.22 Headings;
Construction.
The
headings which have been used throughout this Mortgage have been inserted for
convenience of reference only and do not constitute matter to be construed
in
interpreting this Mortgage. Words of any gender used in this Mortgage shall
be
held and construed to include any other gender and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. The words “herein,” “hereof,” “hereunder” and other similar compounds
of the words “here” when used in this Mortgage shall refer to the entire
Mortgage and not to any particular provision or section.
Section
6.23 Counterparts.
This
Mortgage has simultaneously been executed in a number of identical counterparts,
each of which, for all purposes, shall be deemed an original. If any Mortgagor
is a corporation, this instrument is executed, acknowledged and delivered by
Mortgagor’s officers hereunto duly authorized.
Section
6.24 GOVERNING
LAW.
THIS
MORTGAGE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY APPLICABLE
TO
CONTRACTS MADE AND PERFORMED IN NEW JERSEY, WITHOUT REGARD TO CONFLICTS OF
LAWS
CONSIDERATIONS AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT
THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, PRIORITY,
ENFORCEMENT AND FORECLOSURE OF THE LIENS AND SECURITY INTERESTS CREATED IN
THE
MORTGAGED PROPERTY UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE OF FLORIDA, IT BEING UNDERSTOOD THAT, TO
THE
FULLEST EXTENT PERMITTED BY THE LAW OF THE STATE, THE LAW OF THE STATE OF NEW
JERSEY SHALL GOVERN THE VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS,
AND
THE DEBT OR OBLIGATIONS ARISING HEREUNDER (BUT THE FOREGOING SHALL NOT BE
CONSTRUED TO LIMIT LENDER’S RIGHTS WITH RESPECT TO SUCH SECURITY INTEREST
CREATED IN THE STATE).
Section
6.25 JURISDICTION.
AT
MORTGAGEE’S ELECTION, TO BE ENTERED IN ITS SOLE DISCRETION, ANY LEGAL SUIT,
ACTION OR PROCEEDING AGAINST MORTGAGOR OR MORTGAGEE ARISING OUT OF OR RELATING
TO THIS MORTGAGE (OTHER THAN AN ACTION FOR JUDICIAL FORECLOSURE OR TO APPOINT
A
RECEIVER), THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN NEW JERSEY, AND MORTGAGOR WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. MORTGAGOR
DOES
HEREBY DESIGNATE AND APPOINT THE
CORPORATION TRUST COMPANY, LOCATED AT 000 XXXX XXXXXX XXXX, XXXX XXXXXXX, XXX
XXXXXX 00000
AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND
ALL
PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
FEDERAL OR STATE COURT IN NEW JERSEY, AND AGREES THAT SERVICE OF PROCESS UPON
SAID AGENT AT SAID ADDRESS AND NOTICE OF SAID SERVICE OF MORTGAGOR MAILED OR
DELIVERED TO MORTGAGOR IN THE MANNER PROVIDED IN THE MORTGAGE, SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON MORTGAGOR IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW JERSEY. MORTGAGOR SHALL GIVE PROMPT
NOTICE TO MORTGAGEE OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER,
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW JERSEY (WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS
FOR SERVICE OF PROCESS), AND SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF
ITS
AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW JERSEY OR IS DISSOLVED WITHOUT
LEAVING A SUCCESSOR.
Section
6.26 WAIVER
OF JURY TRIAL.
MORTGAGOR AND MORTGAGEE HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULL TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH -REGARD TO THE
NOTE, THIS MORTGAGE, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM
OR
OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL
BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR AND MORTGAGEE, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED
TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF
THIS
WAIVER BY MORTGAGOR.
Section
6.27 CONFLICT.
In the
event of any conflict between the terms set forth in this Mortgage and the
terms
set forth in Article 7 of that certain Guaranty of even date herewith executed
by Xxxxxxx X. Xxxxxx, American Leisure Holdings, Inc. and TDS Amenities, Inc.
in
favor of Mortgagee (hereinafter referred to as the “Guaranty”) the terms set
forth in the Guaranty shall supersede and prevail over any conflicting terms
set
forth in this Mortgage; provided, however, that nothing contained in the
Guaranty shall expand any notice or grace period set forth in this
Mortgage.
Section
6.28 SPECIAL
STATE PROVISIONS
(a) Secured
Indebtedness, Future Advances.
It is
understood and agreed that this Mortgage shall secure payment of not only the
indebtedness evidenced by the Note but also any and all substitutions,
replacements, renewals and extensions of the Note, any and all indebtedness
and
obligations arising pursuant to the terms hereof and any and all indebtedness
and obligations arising pursuant to the terms of any of the other Loan
Documents, all of which indebtedness is equally secured with and has the same
priority as any amounts advanced as of the date hereof. This Mortgage is given
to secure not only the existing indebtedness of TWENTY
FOUR MILLION NINE HUNDRED THOUSAND ($24,900,000) DOLLARS
of the
Mortgagor to the Mortgagee evidenced by the Note secured hereby, plus interest
thereon.
(b) Mortgagor
hereby verifies and confirms, to the best of its knowledge, 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, Mortgagor and the Mortgagee shall,
at
Mortgagor's sole cost and expense, promptly correct or cause to be corrected
subsequent to the date hereof any and all such errors. Mortgagor shall promptly
pay or cause to be paid all damages, claims or any other costs whatsoever
arising under or in any way connected with any claim, whether or not valid,
arising under or in any way connected with Section 697.10 of the Florida
Statutes, or any similar law due to or caused by any inaccuracy or incorrectness
of factual information or inaccuracy or incorrectness of the legal description
set forth herein. Notwithstanding the foregoing, all rights of Mortgagor and
Mortgagee are preserved against Mortgagor's and Mortgagee's title insurers,
the
surveyor, the engineer, if any, and the appraiser, if any, and, after payment
is
made by Mortgagor, Mortgagor shall be subrogated to such rights.
MORTGAGOR
HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED WITHOUT CHARGE A TRUE COPY OF THIS
MORTGAGE.
[Signatures
follow on the next page.]
IN
WITNESS WHEREOF, Mortgagor has executed this Mortgage and Security Agreement
as
of the date first above written.
|
WITNESS:
Name:
|
MORTGAGOR:
COSTA
XXXXXX XX REAL ESTATE, LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a
Florida
limited partnership,
its
manager
By:
TDS Management, LLC, a
Florida
limited liability company,
its
general partner
By:_/s/
Xxxxxxx X. Wright__
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
WITNESS:
Name:
|
MORTGAGOR:
XXXXX
XXXXXX III REAL ESTATE, LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a
Florida
limited partnership,
its
manager
By:
TDS Management, LLC, a
Florida
limited liability company,
its
general partner
By:_/s/
Xxxxxxx X. Wright__
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
WITNESS:
Name:
|
MORTGAGOR:
TDS
TOWN HOMES (PHASE 1), LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 1), Ltd.,
a
Florida limited partnership,
its
manager
By:
TDS Management, LLC, a
Florida
limited liability company,
its
general partner
By:
_/s/ Xxxxxxx X. Wright__
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
WITNESS:
Name:
|
MORTGAGOR:
TDS
TOWN HOMES (PHASE 2), LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a
Florida
limited partnership,
its
manager
By:
TDS Management, LLC, a
Florida
limited liability company,
its
general partner
By:_/s/
Xxxxxxx X. Wright__
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
|
|
WITNESS:
Name:
|
MORTGAGOR:
TDS
AMENITIES, INC.
a
Florida corporation
By:_/s/
Xxxxxxx X. Wright__
Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
|
STATE
OF
FLORIDA
COUNTY
OF
ORANGE
I
certify
that on Xxxxx 00, 0000, Xxxxxxx X. Xxxxxx came before me in person and stated
to
my satisfaction that he/she:
(a) made
the
attached instrument; and
(b) was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of COSTA XXXXXX XX REAL ESTATE, LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
__
/s/ J.K. Hudson____
NOTARY
PUBLIC
#DD459074
STATE
OF
FLORIDA
COUNTY
OF
ORANGE
I
certify
that on Xxxxx 00, 0000, Xxxxxxx X. Xxxxxx came before me in person and stated
to
my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of XXXXX XXXXXX III REAL ESTATE, LLC, a Florida limited liability
company (the “Company”), the entity named in this instrument, as the free act
and deed of the Company, by virtue of the authority granted by its operating
agreement and its members.
___
/s/ J.K.
Hudson____
NOTARY
PUBLIC
#DD459074
STATE
OF
FLORIDA
COUNTY
OF
ORANGE
I
certify
that on Xxxxx 00, 0000, Xxxxxxx X. Xxxxxx came before me in person and stated
to
my satisfaction that he/she:
(a) made
the
attached instrument; and
(b) was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 1), LTD., a Florida limited partnership, the
Manager of TDS TOWN HOMES (PHASE 1), LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
___
/s/ J.K.
Hudson____
NOTARY
PUBLIC
#DD459074
STATE
OF
FLORIDA
COUNTY
OF
I
certify
that on Xxxxx 00, 0000, Xxxxxxx X. Xxxxxx came before me in person and stated
to
my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of TDS TOWN HOMES (PHASE 2), LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
___
/s/ J.K. Hudson____
NOTARY
PUBLIC
#DD459074
STATE
OF
FLORIDA
COUNTY
OF
ORANGE
I
certify
that on Xxxxx 00, 0000, Xxxxxxx X. Xxxxxx came before me in person and stated
to
my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Chief
Executive Officer of TDS AMENITIES, INC., a Florida corporation (the “Company”),
the entity named in this instrument, as the free act and deed of the Company,
by
virtue of the authority granted by its bylaws and its board of
directors.
___
/s/ J.K.
Hudson____
NOTARY
PUBLIC
#DD459074
EXHIBITS:
A
-
Property Description
B
-
Permitted Encumbrances
C
- TDS
Property Description
D
- Form
of Subordination Agreement
EXHIBIT
A
PROPERTY
DESCRIPTION
EXHIBIT
B
PERMITTED
ENCUMBRANCES
Those
items listed in Schedule B, Section II of the title commitment/proforma issued
by First American Title Insurance Company under Title Commitment
on Phase 2/Polk.
EXHIBIT
C
TDS
PROPERTY DESCRIPTION
EXHIBIT
D
FORM
OF SUBORDINATION AGREEMENT
