EXHIBIT 10.25
OFF. REC 17761PG0701
97R379727 1997 AUG 21 11:
DOCSTPMTG 24,500.00 INTNG 14,000.
XXXXXX XXXXX, CLERK DADE COUNTY,
MORTGAGE DEED
THIS MORTGAGE DEED, made and executed the l9 day of AUGUST, 1997, by
EQUITY ONE (SKY LAKE) INC., a Florida corporation, whose post office address is
000 00xx Xxxxxx Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx 00000 hereinafter called the
Mortgagor, which term shall include the heirs, legal representatives, successors
and assigns of the said Xxxxxxxxx wherever the context so requires or admits, to
XXXXXXX XXXXXX, TRUSTEE. whose post office address is c/o XXXXX XXXXXXX. ESQUIRE
000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000 hereinafter called the
Mortgagee, which term shall include the heirs, legal representatives, successors
and assigns of the said Mortgagee wherever the context so requires or admits.
WITNESSETH: That for divers good and valuable considerations, and also
in consideration of the aggregate sum named in the promissory note of even date
herewith hereinaRer described, the said Xxxxxxxxx does hereby grant, bargain,
sell, alien, remise, release, convey and confirm unto the said Mortgagee, his
heirs, successors and assigns, all the certain piece..., parcel... or tract...
of land, of which the said Xxxxxxxxx is now seized and possessed and in actual
possession, situate in the County of DADE and State of Florida, described as
follows:
SEE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A"
THIS IS A FIRST MORTGAGE in the amount of $7,000,000.00; which sum is
due and payable no later than February 19, 1998.
In the event the above described property is sold or conveyed in any
manner, this mortgage shall become due and payable at once at the option of the
mortgagee.
TOGETHER with all structures and improvements now and hereafter on said
land and the fixtures attached thereto; and the easements, riparian and littoral
rights and appurtenances thereunto belonging, or in any wise appertaining; and
all rents, issues, proceeds and profits accruing and to accrue from said
premises; and all gas and electric fixtures, heaters, air conditioning
equipment, machinery, boilers, ranges, elevators and motors, plumbing fixtures
and hardware, window screens, screen doors, venetian blinds, storm shutters and
awnings, pool pumps and motors and all other heating, cooking, refrigerating,
plumbing, cooling, ventilating, irrigating and power systems and appliances
which are now or may hereafter pertain to or be used with, in or on said
premises though they may be either detached or detachable.
TOGETHER with all furniture, furnishings, fixtures, and equipment
contained in or appurtenant to said premises, or which may hereafter from time
to time be placed therein, and any substitution or replacement thereof.
TO HAVE AND TO HOLD the same, together with all and singular the
tenements, hereditaments and appurtenances thereunto belonging or in anywise
appertaining and the reversions, remainder and remainders, rents, issues and
profits thereof and also all the estate, right, title, interest, property,
possession, claim and demand whatsoever as well in law as in equity of the said
Xxxxxxxxx in and to the same and every part and parcel thereof unto the said
Mortgagee, and his heirs, successors and assigns, in fee simple.
And said Xxxxxxxxx, for itself, and its legal representatives,
successors and assigns, hereby covenants with said Xxxxxxxxx, his heirs, legal
representatives, successors and assigns, that said Xxxxxxxxx is indefeasibly
seized of said land in fee simple; that the said Xxxxxxxxx has full power and
lawful right to convey the same in fee simple as aforesaid; that it shall be
lawful for said Mortgagee, his heirs, legal representatives, successors and
assigns, at all times peaceably and quietly to enter upon, hold, occupy and
enjoy said land and every part thereof; that said land is free from all
encumbrances; that said Xxxxxxxxx, its heirs, legal representatives, successors
and assigns, will make such further assurances to perfect the fee simple title
to said land in said Mortgagee, his heirs, legal representatives, successors and
assigns, as may reasonably be required; and that said Xxxxxxxxx does hereby
fully warrant the title to said land and every part thereof and will defend the
same against the
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OFF. REC 17761PG0702
lawful claims of all persons whomsoever.
PROVIDED ALWAYS, That if said Xxxxxxxxx shall pay unto the said
Mortgagee the certain promissory note, dated on even dated herewith and
incorporated by reference herein, and shall duly, promptly and fully perform,
discharge, execute, effect, complete, comply with and abide by each and every
the stipulations, agreements, conditions and covenants of said promissory note
and of this mortgage, then this mortgage and the estate hereby created shall
cease and be null and void.
It is understood that each of the words, "note," "mortgagor" and
"mortgagee" respectively and the pronouns referring thereto, whether in the
singular or plural anywhere in this mortgage, shall be singular if one only and
shall be plural jointly and severally, if more than one, and shall be masculine,
feminine and/or neuter, wherever the context so implies or admits.
And said Xxxxxxxxx for themselves, and theirs, legal representatives,
successors and assigns:
1. To pay all and singular the principal and interest and the various
and sundry sums of money payable by virtue of said promissory note, and this
mortgage, each and every, promptly on the days respectively the same severally
become due.
2. To pay all and singular the taxes, assessments, levies, liabilities,
obligations and encumbrances of every nature and kind now on said described
property, and/or that hereafter may be imposed, suffered, placed, levied or
assessed thereupon, and/or that hereafter may be levied or assessed upon this
mortgage and/or the indebtedness secured hereby, each and every, when due and
payable according to law, before they become delinquent, and before any interest
attaches or any penalty is incurred; and in so far as any thereof is of record
the same shall be promptly satisfied and discharged of record and the original
official document (such as, for instance, the tax receipt or the satisfaction
paper officially endorsed or certified) shall be placed in the hands of said
Mortgagee within ten days next after payment; and in the event that any thereof
is not so paid, satisfied and discharged, said Mortgagee may at any time pay the
same or any part thereof without waiving or affecting any option, lien, equity
or right under or by virtue of this mortgage, and the full amount of each and
every such payment shall be immediately due and payable and shall bear interest
from the date thereof until paid at the maximum legal rate and together with
such interest shall be secured by the lien of this mortgage.
3. To place and continuously keep on the Property a general liability
policy in the usual standard policy form, and shall contain the usual standard
mortgagee clause making the loss under said policies, each and every, payable to
said Mortgagee; and, not less than 30 days in advance of the expiration of each
policy, to deliver to said Mortgagee a renewal thereof, together with a receipt
for the premium of such renewal; and in the event said Xxxxxxxxx shall for any
reason fail to keep the said premises so insured, or fall to deliver promptly
any of said policies of insurance to said Mortgagee, or fail promptly to pay
fully any premium therefor, or in any respect fail to perform, discharge,
execute, effect, complete, comply with and abide by this covenant, or any part
hereof, said Mortgagee may place and pay for such insurance or any part thereof
without waiving or affecting any option, lien, equity or right under or by
virtue of this mortgage, and the full amount of each and every such payment
shall be immediately due and payable and shall bear interest from the date
thereof until: paid at the maximum legal rate and together with such interest
shall be secured by the lien of this mortgage. Buyer shall reasonably insure
such portions of the Property occupied by Tenants.
4. To perform, comply with and abide by all the stipulations,
agreements, conditions, and covenants set forth in the Promissory Note or Notes
secured hereby and this Mortgage.
5. To pay all and singular the costs, charges and expenses, including
reasonable lawyer's fees and cost of abstracts of title, incurred or paid at any
time by said Mortgagee because and/or in the event of the failure on the part of
the said Xxxxxxxxx to duly, promptly and fully perform, discharge, execute,
effect, complete, comply with and abide by each and every the stipulations,
agreements, conditions and covenants of said promissory note, and this mortgage,
any or either, and said costs, charges and expenses, each and every, shall be
immediately due and payable, whether or not there be notice, demand, attempt to
collect or suit pending; and the full amount of each and every
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OFF. REC 17761PG0703
such payment shall bear interest from the date thereof until paid at the
maximum legal rate; and all said costs, charges and expenses so incurred or
paid, together with such interest, shall be secured by the lien of this
mortgage.
6. That (a) in the event of any breach of this mortgage or default on
the part of the Mortgagor, or (b) in the event any of said sums of money herein
referred to be not promptly and fully paid within ten days next after the same
severally become due and payable, without demand or notice, or (c) in the event
each and every the stipulations, agreements, conditions and covenants of said
promissory note and this mortgage, any or either are not duly, promptly and
fully performed, discharged, executed, effected, completed, complied with and
abided by, then, in either or any such event, the said aggregate sum mentioned
in said promissory note then remaining unpaid, with interest accrued, and all
moneys secured hereby, shall become due and payable forthwith, or thereafter, at
the option of said Mortgagee, as fully and completely as if all of the said sums
of money were originally stipulated to be paid on such day, anything in said
promissory note, and/or in this mortgage to the contrary notwithstanding; and
thereupon or thereafter at the option of said Mortgagee, without notice or
demand, suit at law or in equity, theretofore, or thereafter begun, may be
prosecuted as if all moneys secured hereby had matured prior to its institution.
7. In the event the Mortgagor, shall fail to pay any charges or
obligations required to be paid by the Mortgagor hereunder, within the time set
forth for such payment, the Mortgagee shall have the right to pay such charge or
obligation without waiving or affecting the option of the Mortgagee to consider
this mortgage in default. Every such payment so made shall bear interest at the
maximum default rate as provided in the Promissory Note secured hereby, and
every such payment shall be deemed additional monies owed by the Mortgagor to
the Mortgagee, shall be payable on demand of the mortgagee therefore and shall
be secured by the lien of this Mortgage.
8. In the event of a default in any of the terms of this Mortgage
and/or the filing of any suit upon this mortgage, or to foreclose it, or to
reform it, and/or to enforce payment of any claims hereunder, said Mortgagee
shall apply to the court having jurisdiction thereof for the appointment of a
Receiver. Such court shall forthwith appoint a Receiver of said mortgaged
property all and singular, including all and singular the rents, income,
profits, issues and revenues from whatever source derived, each and every of
which, it being expressly understood, is hereby mortgaged as if specifically set
forth and described in the granting and habendum clause hereof, and such
Receiver shall have all the broad and effective functions and powers in anywise
entrusted by a court to a Receiver, and such appointment shall be made by such
court as an admitted equity and a matter of absolute right to said Mortgagee,
and without reference to the adequacy of the value of the property mortgaged or
to the solvency or insolvency of said Xxxxxxxxx and/or of the defendants, and
that such rents, profits, income, issues and revenues shall be applied by such
Receiver according to the lien and/or equity of said Xxxxxxxxx and the practice
of such court.
9. All rents, deposits, revenues and profits arising out of the
operation of the mortgaged property are, by the terms hereof, assigned to the
Mortgagee as further security for the payment of the indebtedness secured
hereby, and no other instrument or documents need to be executed by the
Mortgagor to effect such assignment. Any subsequent assignment of the rents,
deposits, revenues, and profits of the mortgaged property, or any part thereof,
shall at all times be inferior and subordinate to the assignment granted hereby
and to the rights of the Mortgage hereunder. This assignment shall continue in
effect until the indebtedness secured by this Mortgage is paid in full.
10. If all or any part of the property or an interest therein is sold,
transferred, encumbered, or if there is a change of ownership of the mortgaged
premises or of any property encumbered by this mortgage without the Mortgagee's
prior written consent, Mortgagee may, at Mortgagee's option, declare all the
sums secured by this Mortgage to be immediately due and payable. The Mortgagee
shall have waived such option to accelerate if, prior to the sale, transfer,
encumbrance, or change of ownership, the Mortgagee, in his sole and absolute
discretion, and the person to whom the property is to be sold, encumbered, or
transferred reach agreement in writing that the credit of such person is
satisfactory to Mortgagee and that the interest payable on the sums secured by
this Mortgage shall be at such rate as the Mortgagee shall request.
1 1. In the event the ownership of the mortgaged premises, or any part
thereof, becomes
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OFF. REC 17761PG0703
vested in a person or entity other than the Mortgagor, the Mortgagee may,
without notice to the Mortgagor, deal with such successor or successors in
interest with reference to this Mortgage and the debt hereby secured, in the
same manner as with the Mortgagor, without in any way vitiating or discharging
the Mortgagor's liability hereunder or upon the debt hereby secured. No sale of
the premises hereby mortgaged and no forbearance on the part of the Mortgagee,
and no extension of the time for the payment of the debt hereby secured given by
the Mortgagee, shall operate to release, discharge, modify, change, or affect
the original liability of the Mortgagor herein, either in whole or in part.
12. Time is of the essence and no waiver of any obligation hereunder,
or of the obligation secured hereby, shall at any time hereafter be held to be a
waiver of the terms hereof or of the Note secured hereby.
13. If foreclosure proceedings are instituted on any mortgage inferior
to this Mortgage or if any foreclosure proceeding is instituted on any lien of
any kind, the Mortgagee may at its option immediately or thereafter declare this
Mortgage and the indebtedness secured hereby, due and payable. If there is any
mortgage superior to this Mortgage, then failure to pay said mortgage when due
and in accordance with its terms or failure to abide by the terms at its option,
may immediately or thereafter declare this Mortgage and the indebtedness hereby
secured, due and payable. Any modification of any mortgage superior to this
Mortgage or waiver of any principal or interest payments on any note or mortgage
superior to this Mortgage, including but not limited to the granting and
acceptance of future advanced pursuant thereto, shall be deemed a breach of the
terms and covenants of this Mortgage and the Mortgagee hereof may at is option
declare this Mortgage and the indebtedness secured hereby due and payable.
14. In order to accelerate the maturity of the indebtedness hereby
secured because of the failure of the Mortgagor to pay any tax assessment,
liability, obligation, or encumbrance upon said property as herein provided, it
shall not be necessary nor requisite that the Mortgagee shall first pay same.
15. The mailing of written notice of demand, addressed to the owner of
record of the mortgaged premises, directed to the said owner at the last address
actually furnished to the Mortgagee or directed to the said owner at said
mortgaged premises, and mailed by United States Certified Mail, Return Receipt
Requested, shall be sufficient notice and demand in any case arising under this
instrument and required by the provisions hereof or by law. Notice to Mortgagee
if required hereunder, shall be deemed properly given when forwarded by
Certified Mail, Return Receipt Requested, with sufficient postage affixed
thereto and addressed to c/o XXXXX XXXXXXX, ESQUIRE 000 XXXXXXX XXXX, XXXXX 000
XXXXX XXXXX, XXXXXXX 00000.
16. If the validity or lien of this Mortgage or the Promissory Note
secured hereby be contested by litigation or otherwise, or if any action or
proceeding shall be commenced in which the Mortgagee is made a party, the
Mortgagor agree to pay the Mortgagee the cost of defending the same, including a
reasonable attorney's fee and attorneys' fees on appeal, together with interest
at the maximum default rate as provided in the Promissory Note secured hereby.
17. In the event that Mortgagor shall: (1) consent to the appointment
of a receiver, trustee, or liquidator of all or a substantial part of Mortgagor
assets, or (2) be adjudicated at bankruptcy or admit in writing its inability to
pay its debts as they become due, or (3) make a general assignment for the
benefit of creditors, or (4) file a petition or answer seeking reorganization or
arrangement with creditors, or to take advantage of any insolvency law, or (5)
file an answer admitting the material allegations of a petition filed against
the Mortgagor in any bankruptcy, reorganization or insolvency proceedings, or
(6) take any action for the purpose of effecting any of the foregoing, or (7)
any order, judgment, or decree shall be entered upon an application of a
creditor of the Mortgagor by a court of competent jurisdiction approving a
Petition seeking appointment of a receiver or trustee of all or a substantial
part of the Mortgagor's assets and such order, judgment, or decree shall
continue unstated and in effect for any period of thirty (30) consecutive days,
the Mortgagee may declare the Promissory Note hereby secured forthwith due and
payable, whereupon the principal of and the interest accrued on the Promissory
Note and all other sums hereby secured shall become forthwith due and payable as
if all of the said sums of money were originally stipulated to be paid
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OFF. REC 17761PG0705
on such day; and thereupon the Mortgagee without notice or demand may prosecute
a suit at law and/or in equity as if all monies secured hereby had matured prior
to its institution.
18. In the event the premises hereby mortgaged, or any part thereof,
shall be condemned and taken under the power of eminent domain, the Mortgagee
shall have the right to demand that all damages awarded for the taking of or
damages to said premises shall be paid to the Mortgagee, its successors or
assigns, up to the amount then unpaid on this Mortgage, and may be applied
against the payment or payments last payable thereon.
19. The Mortgagor will, at the cost of the Mortgagor, and without
expense to the Mortgagee, do, execute, acknowledge, and deliver all and every
such further acts deeds, conveyances, mortgages, assignments, notices of
assignments, transfers, and assurances as the Mortgagee shall from time to time
require, for the better assuring, conveying, assigning, transferring and
confirming unto the Mortgagee the property and rights hereby conveyed or
assigned or intended now or hereafter so to be.
20. The Mortgagor will pay, form time to time when the same shall
become due, all claims and demands of mechanics, materialmen, laborers, and
others which, if unpaid, might result in, or permit the creation of, a lien on
the mortgaged property, whether paramount or subordinate to this Mortgage, or
any part thereof, or on the revenues, rents, issues, income and profits arising
therefrom, and in general will do or cause to be done everything necessary so
that the lien of this Mortgage shall be fully preserved, at the cost of the
Mortgagor, without expense to the Mortgagee.
21. The claims of mechanics, materialmen and/or laborers which may give
rise to mechanics' liens shall be released, discharged or bonded by Xxxxxxxxx
with a cash or surety bond in the amount required by law for the bonding of
mechanics' liens within thirty (30) days of the recording of the claim of lien.
22. This Mortgage shall constitute a security agreement under the
Uniform Commercial Code as it presently exists and may hereafter exist in the
State of Florida. The Mortgagor hereby gives and grants unto the Mortgagee a
security interest in and to the furniture, fixtures, essential equipment,
inventory, licenses, permits and contract rights necessary and normally used in
the operation of the mortgaged premises. Xxxxxxxxx further agrees to execute and
deliver to the Mortgagee, simultaneously with the execution and delivery of this
Mortgage, or at any other time at the request of Mortgagee, any and all Uniform
Commercial Code Financing Statements reasonably required by the Mortgagee to
effect the purposes and intent of this paragraph.
23. In the event any one or more of the provisions contained in this
Mortgage or in the Promissory Note or in any other loan document shall for any
reason be held to be inapplicable, invalid, illegal or unenforceable in any
respect, such inapplicability, invalidity, illegality, or unenforceability
shall, at the option of the Mortgagee, not affect any other provision of this
Mortgage, but this Mortgage shall be construed as if such inapplicable, invalid,
illegal, or unenforceable provision had never been contained herein or therein.
24. This Mortgage or any of the terms hereunder cannot be modified
orally.
25. Acceptance by the Mortgagee of any payment which is less than full
payment of all amounts due and payable at the time of such payment, even if made
by one other than the obligor, shall not constitute a waiver of the Mortgagee's
right to exercise its option to declare the whole of the principal sum then
remaining unpaid, together with all accrued interest thereon, immediately due
and payable without notice, or any other rights of the Mortgagee except as to
the extent otherwise provided by law.
26. The Mortgagee and the Mortgagor specifically agree that they waive
all rights to rely on or enforce any oral statements made prior to or subsequent
to the signing of this document.
27. The Mortgagee and the Mortgagor hereby knowingly, voluntarily and
intentionally waive the right either may have to a trial by jury with respect to
any litigation based hereon, or arising out of, under or in connection with this
document, and any agreement contemplated to be
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OFF. REC 17761PG0706
executed in conjunction herewith, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of either party made before,
during, or after the execution of this document.
28. Venue and jurisdiction shall be in Dade County, Florida, for any
affirmative or defensive legal proceeding in connection with this document
and/or any other document signed by the Mortgagors in favor of the Mortgagee.
29. Xxxxxxxxx agrees to duly, promptly and fully perform, discharge,
execute, effect, complete, comply with and abide by each and every stipulations,
agreements, conditions and covenants in said promissory note and in this
mortgage set forth.
30. It is mutually covenanted and agreed by and between the Mortgagor
and the Mortgagee that this mortgage and the note secured hereby constitute a
Florida contract and shall be construed according to the laws of that State.
31. Mortgagor and Mortgagee acknowledge that Mortgagor intends and
shall commence demolition of various portions of the Property, specifically the
parcel known as the Home Depot building and the portion of the Mall west from
the parcel known as the East Mall, excluding the operating out parcels, and such
demolition or remodeling shall not constitute a breach of any of Mortgagor's
obligations hereunder.
IN WITNESS WHEREOF, the said Xxxxxxxxx has executed this Mortgage under
seal on the day and year herein first above written.
Signed, sealed and delivered in
the presence of:
CORPORATE SEAL
EQUITY ONE (SKY LAKE) INC.,
a Florida corporation
By: /s/ XXXXX XXXXXX
------------------
Xxxxx Xxxxxx,
Vice President
/s/ [illegible]
----------------------
Witness #1 - Signature
/s/ XXXX X XXXXXX
----------------------
Witness #2 - Printed Name
State of Florida )
County of Dade )
Before me personally appeared XXXXX XXXXXX, VICE PRESIDENT OF EQUITY ONE
(SKY LAKE) INC., a Florida Corporation, to me, or ( ) who presented as
Identification: ___________ to me well known and known to be the individual
described in and who executed the foregoing instrument, and acknowledged before
me that he executed the same in his capacity as of ficer of named Corporation
for the purposes therein expressed.
WITNESS my hand and of ficial seal this 19 day of August, 1997.
/s/ [illegible]
-------------------------------
Seal Notary Public State of Florida
THIS INSTRUMENT PREPARED BY:
XXXX X. XXXXXX, ESQUIRE
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
SEAL
----
XXXX X. XXXXXX
MY COMMISSION EXPIRES
AUGUST 13, 2001
#CC 648469
BONDED THRU NOTARY PUBLIC UNDERWRITERS
NOTARY PUBLIC, STATE OF FLORIDA
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