THIS INSTRUMENT PREPARED BY
AND RETURN TO:
Xxxxx X. Xxxxxxxx, Esq.
XXXXXXXX & XXXXXX, P.A.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
FIRST NATIONAL BANK OF NAPLES
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT is made this 31st day of May,
1996, by CERTIFIED DIABETIC SUPPLIES INC., a Florida corporation, whose address
is 0000 X & X Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000 ("Mortgagor"), in favor of FIRST
NATIONAL BANK OF NAPLES, a national banking association, whose address is 000
Xxxxxxxxx Xxxx, Xxxxx, Xxxxxx, Xxxxxxx 00000 ("Mortgagee").
WITNESSETH:
WHEREAS, Mortgagee has made a loan of even date herewith to Mortgagor
in the original principal amount of Two Hundred Fifty Thousand and 00/100
Dollars ($250,000.00), and in consideration therefor, Mortgagor has agreed to
pay the same, with interest thereon, according to the terms of that certain
Promissory Note made by Mortgagor to the order of Mortgagee in the original
principal amount of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00),
bearing even date herewith, with final payment being due on December 28, 1998
(such Promissory Note being hereinafter referred to as the "Note").
NOW, THEREFORE, to secure the performance and observance by Mortgagor
of all covenants and conditions in the Note and the indebtedness evidenced
thereby and in this instrument and in all other instruments securing the Note
and in order to charge the properties, interests and rights hereinafter
described with such payment, performance or observance, and for and in
consideration of the sum of Ten and 00/100 Dollars ($10.00) this date paid by
Mortgagee to Mortgagor, and for such other valuable consideration, the receipt
of which is acknowledged, Mortgagor does hereby grant, bargain, sell, alienate,
remise, release, convey, assign, transfer, mortgage, hypothecate, pledge,
deliver, set over, warrant and confirm unto Mortgagee, its successors and
assigns forever, a security interest in and fee simple title to the following
properties:
THE MORTGAGED PROPERTY
The term "Mortgaged Property" as used herein shall be as hereinafter
defined.
(A) The Land. All those parcels and tracts of land located in the
County of Xxxxxxx, State of Florida (collectively, the "Land"), described in
Exhibit "A" attached hereto and made a part hereof;
(B) The Improvements. Together with all buildings, structures and
improvements of every nature whatsoever now or hereafter situated on the Land,
and all fixtures, machinery, appliances, equipment, and personal property of
every nature whatsoever now or hereafter owned by
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Mortgagor and located in or on, or attached to, or used or intended to be used
in connection with or with the operation of, the Land, buildings, structures or
other improvements, including all extensions, additions, improvements,
betterments, renewals and replacements to any of the foregoing and all of the
right, title and interest of Mortgagor in and to any such personal property or
fixtures together with the benefit of any deposits or payments now or hereafter
made by Mortgagor or on its behalf (the "Improvements");
(C) Easements or Other Interests. Together with all easements, zoning
variances and exceptions, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the property hereinabove described, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Mortgagor, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right, title,
interest, property, possession, claim and demand whatsoever, at law as well as
in equity, of Mortgagor of, in and to the same, including but not limited to all
judgments, awards of damages and settlements hereafter made resulting from
condemnation proceedings or the taking of the property described in paragraphs
(A), (B) and (C) hereof or any party thereof under the power of eminent domain,
or for any damage (whether caused by such taking or otherwise) to the property
described in paragraphs (A), (B) and (C) hereof or any part thereof, or to any
rights appurtenant thereto, and all proceeds of any sales or other dispositions
of the property described in paragraphs (A), (B) and (C) hereof or any part
thereof.
(D) Assignment of Rents. Together with all rents, royalties, issues,
profits, revenue, income and other benefits from any property described in
paragraphs (A), (B) and (C) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given to
Mortgagor so long as no default has occurred hereunder, to collect, receive,
take, use and enjoy such rents, royalties, issues, profits, revenue, income and
other benefits as they become due and payable, but not in advance thereof. The
foregoing assignment shall be fully operative without any further action on the
part of either party and specifically Mortgagee shall be entitled, at its option
upon the occurrence of a default hereunder, to all rents, royalties, issues,
profits, revenue, income and other benefits from any property described in
paragraphs (A), (B) and (C) hereof whether or not Mortgagee takes possession of
such property described in paragraphs (A), (B) and (C) hereof. Upon any such
default hereunder, the permission hereby given to Mortgagor to collect such
rents, royalties, issues, profits, revenue, income and other benefits from the
property described in paragraphs (A), (B) and (C) hereof shall terminate and
such permission shall not be reinstated upon a cure of the default without the
specific consent of Mortgagee. Neither the exercise of any rights under this
paragraph by Mortgagee nor the application of any such rents, royalties, issues,
profits, revenue, income or other benefits to the indebtedness and other sums
secured hereby, shall cure or waive any default or notice of default hereunder
or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
(E) Assignment of Leases. Together with all right, title, and interest
of Mortgagor in and to any and all leases now or hereafter on or affecting any
property described in paragraphs (A), (B) and (C) hereof, together with all
security therefor and all monies payable thereunder, subject, however, to the
conditional permission hereinabove given to Mortgagor to collect the rentals
under any such lease. The foregoing assignment of any lease shall not be deemed
to impose upon Mortgagee any of the obligations or duties of Mortgagor provided
in any such lease, and Mortgagor agrees to fully perform all obligations of the
lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to send
to Mortgagee a list of all leases covered by the foregoing
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assignment and as any such lease shall expire or terminate or as any new lease
shall be made, Mortgagor shall so notify Mortgagee in order that at all times
Mortgagee shall have a current list of all leases affecting the property
described in paragraphs (A), (B) and (C) hereof. Mortgagee shall have the right,
at any time and from time to time, to notify any lessee of the rights of
Mortgagee as provided by this paragraph. From time to time, upon request of
Mortgagee, Mortgagor shall specifically assign to Mortgagee as additional
security hereunder, by an instrument in writing in such form as may be approved
by Mortgagee, all right, title and interest of Mortgagor in and to any and all
leases now or hereafter on or affecting the Mortgaged Property, together with
all security therefor and all monies payable thereunder, subject to the
conditional permission hereinabove given to Mortgagor to collect the rentals
under any such lease. Mortgagor shall also execute and deliver to Mortgagee any
notification, financing statement or other document reasonable required by
Mortgagee to perfect the foregoing assignment as to any such lease.
This instrument constitutes an absolute and present
assignment of the rents, royalties, issues, profits, revenue, income and other
benefits from the Mortgaged Property, Mortgagor to collect, receive, take, use
and enjoy the same as provided hereinabove; provided, further, that the
existence or exercise of such right of Mortgagor shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Mortgagor, and any such subsequent assignment by Mortgagor shall be subject
to the rights of Mortgagee hereunder.
(F) Fixtures and Personal Property. Together with a security interest
in all fixtures, fittings, furnishings, appliances, apparatus, equipment,
machinery and other personal property, including, without limitation, all gas an
electric fixtures, radiators, heaters, engines and machinery, boilers, ranges,
ovens, elevators and motors, bathtubs, sinks, water closets, basins, pipes,
faucets and other air conditioning, plumbing, and heating fixtures, mirrors,
mantles, refrigerating plant, refrigerators, iceboxes, dishwashers, carpeting,
furniture, laundry equipment, cooking apparatus and appurtenances, and all
building material, supplies and equipment now located on or hereafter delivered
to the Land and intended to be installed therein; all other fixtures and
personal property of whatever kind and nature at present contained in or
hereafter placed in any building standing on the Land; and all renewals or
replacements thereof or articles in substitution thereof; and all proceeds and
profits thereof and all of the estate, right, title and interest of Mortgagor in
and to all property of any nature whatsoever, now or hereafter situated on the
Land or intended to be used in connection with the operation thereof; all leases
and use agreements of machinery, equipment and other personal property of
Mortgagor in the categories hereinabove set forth, under which Mortgagor is the
lessee of, or entitled to use, such items, and all deposits made therefor; and
Mortgagor (Debtor) hereby grants to Mortgagee (Creditor) a security interest in
all fixtures, rights and personal property described herein. This Mortgage is a
self operative security agreement with respect to such property, but Mortgagor
agrees to execute and deliver on demand such other security agreements,
financing statements, continuation statements and other instruments as Mortgagee
may request in order to perfect its security interest or to impose the lien
hereof more specifically upon any of such property and Mortgagor hereby
constitutes and appoints Mortgagee as Agent and attorney-in-fact to make,
execute, deliver and record any instruments for the purpose of effecting the
lien and security interests of this Mortgage and continuing the effect thereof.
The foregoing power of attorney is irrevocable and coupled with an interest.
Mortgagee shall have all the rights and remedies in addition to those specified
herein of a secured party under the Uniform Commercial Code.
Everything referred to in paragraphs (A), (B), (C), (D), (E),
and (F) hereof and nay additional property hereafter acquired by Mortgagor and
subject to the lien of this mortgage or intended to be so is herein referred to
as the "Mortgaged Property".
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To have and to hold the Mortgaged Property and all parts
thereof unto Mortgagee, its successors and assigns, for enforcing the payment of
the Note when due and payable according to the true interest and meaning of the
stipulations and provisions of the Note, and the payment and performance of all
other obligations of Mortgagor hereunder and under the Note. The foregoing
amounts evidenced by the Note, or due and payable by Mortgagor under the Note,
or under the provisions hereof including advances by Mortgagee for the purpose
of paying taxes or premiums on insurance on the Mortgaged Property or to repair,
maintain, or improve the Mortgaged Property and all renewal or renewals and
extension or extensions of the Note are secured hereby and collectively referred
to herein as "Secured Indebtedness"; provided, however, that upon the express
conditions that if Mortgagor, its successors and assigns shall well and truly
pay or cause to be paid unto the holder of the Note and Secured Indebtedness and
shall well and truly keep, observe and perform all and singular the covenants
and provisions in the Note and any other instrument securing the Note, this
instrument shall be canceled to its own proper use and benefit forever, subject,
however, to the terms and conditions herein.
ARTICLE ONE
COVENANTS
1.01 Performance of Note, Mortgage, etc. Mortgagor shall perform,
observe and comply with all provisions hereof, of the Mortgage and every other
applicable instrument securing the Note, and will promptly pay all sums required
to be paid by Mortgagor pursuant to the provisions of this Mortgage and of every
other instrument securing the Note when payment shall become due, all without
deduction or credit for taxes or other similar charges paid by Mortgagor.
1.02 Warranty of Title. Mortgagor covenants and warrants that it is
seized of an indefeasible estate in fee simple in the Land and any other real
property hereby mortgaged, has good and absolute title to all existing personal
property hereby mortgaged or made subject to the security interest hereby
created and has good right, full power and lawful authority to convey, mortgage
and encumber the same as provided herein; that Mortgagee may at all times
peaceably and quietly enter upon, hold, occupy and enjoy the Land and any other
real property hereby mortgaged and every part thereof; that the Land, real
property and all existing personal property hereby mortgaged or made subject to
the security interest hereby created are free and clear of all liens, security
interests, charges and encumbrances whatsoever, except for those certain matters
set forth in Exhibit "B" attached hereto and made a part hereof ("Permitted
Exceptions"). Mortgagor shall and will make such further assurances to perfect
Mortgagor's fee simple title to the Land and the real property hereby mortgaged,
and the title to the personal property hereby mortgaged or made subject to the
security interest hereby created as may reasonably be required. Mortgagor fully
warrants the title to the Land, real property and all existing personal property
hereby mortgaged or made subject to the security interest hereby created and
every part thereof, and will forever defend the same against the claims of all
persons whomsoever. Mortgagor hereby warrants and represents that the Mortgaged
Property shall be utilized only as a commercial premises and is not now nor has
the Mortgaged Property every been designated as Mortgagor's homestead.
1.03 Transfer of Property. Mortgagor shall not sell, convey, transfer,
lease or further encumber any interest in or any part of the Mortgaged Property,
without the prior written consent of Mortgagee.
1.04 Further Assurances. At any time and from time to time, upon
Mortgagee's request, Mortgagor shall make, execute and deliver or cause to be
made, executed and delivered to Mortgagee and, where appropriate, shall cause to
be recorded or filed, from time to time, in such
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offices and places as shall be deemed desirable by Mortgagee any and all such
further mortgages, instruments of further assurance, certificates and other
documents as Mortgagee may consider necessary or desirable in order to
effectuate, complete, enlarge or perfect, or to continue and preserve the
obligations of Mortgagor under this Mortgage, and the lien of this Mortgage as a
first and prior lien upon all of the Mortgaged Property (subject to the
Permitted Exceptions), whether now owned or hereafter acquired by Mortgagor.
1.05 After Acquired Property. The lien of this Mortgage will
automatically attach, without further act, to all after acquired real or
personal property located in or on, appurtenant to or attached to, or used or
intended to be used in connection with or with the operation of, the Mortgaged
Property or any part thereof.
1.06 Taxes. Mortgagor shall pay, when due and payable, (a) all taxes,
assessments, general or special, and other charges levied on, or addressed,
placed or made against the Mortgaged Property, this instrument or the Secured
Indebtedness or any interest of Mortgagee in the Mortgaged Property or the
obligations secured hereby; (b) all premiums on policies of fire and other
hazard insurance covering the Mortgaged Property, as required herein. Mortgagor
shall promptly deliver to Mortgagee receipts showing payment in full of all of
the above items. Upon demand by Mortgagee, Mortgagor shall pay to Mortgagee,
together with and in addition to the payment of principal and interest payable
under the terms of the Note, on the installment-paying dates of the Note, until
the Secured Indebtedness is paid in full or until notification from Mortgagee to
the contrary, an amount reasonably sufficient (as estimated by Mortgagee) to
provide Mortgagee with funds to pay said taxes, assessments, insurance premiums,
rents and other charges next due so that Mortgagee will have sufficient funds on
hand to pay same thirty (30) days before the date of which they become past due.
In no event shall Mortgagee be liable for any interest on any amount paid to it
as herein required, and the money so received may be held and commingled with
its own funds, pending payment or application thereof as herein provided.
Mortgagor shall furnish to Mortgagee, at least thirty (30) days before the date
on which the same will become past due, an official statement of the amount of
said taxes, assessments, insurance premiums and rents next due, and Mortgagee
shall pay said charges to the amount of the then unused credit therefor as and
when they become severally due and payable. An official receipt therefor shall
be conclusive evidence of such payment and of the validity of such charges.
Mortgagee may, at its option, pay any of these charges when
payable, either before or after they become past due, without notice, or make
advances therefor in excess of the then amount of credit for said charges. The
excess amount advanced shall become part of the Secured Indebtedness and bear
interest at the rate provided in the Note from date of advancement. Mortgagee
may apply credits held by it for the above charges or any part thereof on
account of any delinquent installments of principal or interest or any other
payments maturing or due under this instrument, and the amount of credit
existing at any time shall be reduced by the amount thereof paid or applied as
herein provided. The amount of the existing credit hereunder at the time of any
transfer of the Land shall, without assignment thereof, inure to the benefit of
the successor-owner of the Land and shall be applied under and subject to all of
the provisions hereof. Upon payment in full of the Secured Indebtedness, the
amount of any unused credit shall be paid over to the person entitled to receive
it.
1.07 Insurance.
(a) Mortgagor shall keep the Mortgaged Property insured for
the benefit of Mortgagee against loss or damage by fire, lightning, windstorm,
hail, explosion, riot, riot attending a
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strike, civil commotion, aircraft, vehicles and smoke and such other hazards as
Mortgagee may from time to time require, and rental or business interruption
insurance against any abatement of rent or other casualty in surplus by a
standard fire and extended coverage insurance company, all in amounts approved
by Mortgagee not exceeding 100% of full replacement cost; all insurance herein
provided for shall be in a form and issued by companies approved by Mortgagee;
and regardless of the types or amounts of insurance required and approved by
Mortgagee, Mortgagor shall assign and deliver to Mortgagee, as collateral and
further security for the payment of the Secured Indebtedness, all policies of
insurance which insure against any loss or damage to the Mortgaged Property,
with loss payable to Mortgagee, without contribution by Mortgagee, pursuant to
the New York Standard or other mortgagee clause satisfactory to Mortgagee. If
Mortgagee, by reason of such insurance, receives any money for loss or damage,
such amount may, at the option of Mortgagee, be retained and applied by
Mortgagee toward payment of the Secured Indebtedness, or be paid over, wholly or
in part, to Mortgagor for the repair or replacement of the Mortgaged Property or
any part thereof, or for any other purpose or object satisfactory to Mortgagee,
but Mortgagee shall not be obligated to see to the proper application of any
amount paid over to Mortgagor.
(b) Not less than thirty (30) days prior to the expiration
date of each policy of insurance required of Mortgagor pursuant to this Article,
and of each policy of insurance held as additional collateral to secure the
Secured Indebtedness, Mortgagor shall deliver to Mortgagee a renewal policy or
policies marked "premium paid" or accompanied by other evidence of payment
satisfactory to Mortgage.
(c) In the event of a foreclosure of this Mortgage, the
purchaser of the Mortgaged Property shall succeed to all the rights of
Mortgagor, including any right to unearned premiums, in and to all policies of
insurance assigned and delivered to Mortgagee, with respect to all property
conveyed and to be conveyed by this Mortgage, pursuant to the provisions of this
Article.
(d) Any prepayment of the indebtedness evidenced by the Note,
whether in whole or in part resulting from the application of insurance
proceeds, shall be without any premium, charge or expense whatsoever.
1.08 Care of Mortgaged Property. Mortgagor shall maintain the Mortgaged
Property in good condition and repair, shall not commit or suffer any waste to
the Mortgaged Property, and shall comply with, or cause to be complied with, all
restrictive covenants, statutes, ordinances and requirements of any governmental
authority relating to the Mortgaged Property and the use thereof or any part
thereof. Mortgagor shall promptly repair, restore, replace or rebuild any part
of the Mortgaged Property, now or hereafter encumbered by this Mortgage, which
may be affected by any proceeding of the character referred to in Article 1.09
herein. No part of the Mortgaged Property, including, but not limited to, any
building, structure, parking lot, driveway, landscape scheme, timber or other
ground improvement, equipment or other property, now or hereafter conveyed as
security by or pursuant to this Mortgage, shall be removed, demolished or
materially altered without the prior written consent of Mortgagee. Mortgage
shall complete, within a reasonable time, and pay for any building, structure or
other improvement at any time in the process of construction on the property
herein conveyed. Mortgagor shall not initiate, join in or consent to any change
in any private restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses which may be made of the Mortgaged
Property or any part thereof without the prior written consent of Mortgagee.
Mortgagee and any persons authorized by Mortgagee shall have the right to enter
and inspect the Mortgaged Property at all reasonable times and access thereto
shall be permitted for that purpose.
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1.09 Condemnation. Notwithstanding any taking of any property, herein
conveyed and agreed to be conveyed, by eminent domain, alteration of the grade
of any street or other injury to, or decrease in value of, the Mortgaged
Property by any public or quasi-public authority or corporation, Mortgagor shall
continue to pay principal and interest on the Secured Indebtedness, and any
reduction in the Secured Indebtedness resulting from the application by
Mortgagee of any award or payment for such taking, alterations, injury or
decrease in value of the Mortgaged Property, as hereinafter set forth, shall be
deemed to take effect only on the date of such receipt; and said award or
payment may, at the option of Mortgagee, be retained and applied by Mortgagee
toward payment of the Secured Indebtedness or be paid over, wholly or in part,
to Mortgagor for the purpose of altering, restoring or rebuilding any part of
the Mortgaged Property which may have been altered, damaged or destroyed as a
result of any such taking, alteration of grade, or other injury to the Mortgaged
Property, or for any other purpose or object satisfactory to Mortgagee, but
Mortgagee shall not be obligated to see to the application of any amount paid
over to Mortgagor. If, prior to the receipt by Mortgagee of such award or
payment, the Mortgaged Property shall have been sold on foreclosure of this
Mortgage, Mortgagee shall have the right to receive said award or payment to the
extent of any deficiency found to be due upon such sale, with legal interest
thereon, whether or not a deficiency judgment on this Mortgage shall have been
sought or recovered or denied, and of the reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with the collection of such
award or payment.
1.10 Statements and Other Information. Mortgagor shall deliver to
Mortgagee, at any time within thirty (30) days after notice and demand by
Mortgagee but not more frequently than once per month, a statement in such
reasonable detail as Mortgagee may request, certified by Mortgagor or an
executive officer or treasurer of a corporate Mortgagor, or, at the option of
Mortgagee, by a certified public accountant, of the income from and expenses of
any one or more of the following: (a) the conduct of any business on the
Mortgaged Property, (b) the operation of the Mortgaged Property, or (c) the sale
or leasing of the Mortgaged Property or any part hereof, for the last twelve
(12) months calendar period prior to the giving of such notice, and, on demand,
Mortgagor shall furnish to Mortgagee executed counterparts of any such leases
and convenient facilities for the audit and verification of any such statement.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term Event of Default, wherever used in this
Mortgage, shall mean any one or more of the following events and each of the
following events shall constitute an event of default hereunder:
(a) Failure by Mortgagor to pay, within ten (10) days of the
due date specified in the Note, any installment of principal or interest due
under the Note; or
(b) Failure by Mortgage or pay, within thirty (30) days of
when due and payable, the Secured Indebtedness; or
(c) Failure by Mortgagor to perform or observe any of the
covenants, agreements or conditions on the part of the Mortgagor in this
instrument or in any other instrument securing all or any part of the Secured
Indebtedness; or
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(d) Without limiting the foregoing, should Mortgagor violate
any provision of any Lease as defined in that certain Assignment of Rents and
Leases by Mortgagor in favor of Mortgagee of even date with respect to the
Mortgaged Property; or
(e) Without limiting the foregoing, should any event of
default occur under any term or condition of the Construction Loan Agreement of
even date given by Borrower in favor of Mortgagee; or
(f) Should Mortgagor, or any guarantor of the Secured
Indebtedness or any portion thereof (all of such parties being hereinafter
referred to as "Obligors") make any assignment for the benefit of creditors, or
should a receiver, liquidator or trustee of any of the Obligors or of any of the
property of any of the Obligors be appointed, or should any petition for the
bankruptcy, reorganization or arrangement of any of the Obligors, pursuant to
the Federal Bankruptcy Act or any similar statute, be filed by any of the
Obligors, or should any such proceeding be filed against any of the Obligors and
remain undismissed for a period of thirty (30) days, or should any of the
Obligors in any proceeding admit its insolvency or inability to pay its debts as
they fall due or should any of the Obligors be liquidated or dissolved or its
articles of incorporation expire or be revoked; or
(g) Should Mortgagor sell, encumber, convey or otherwise
transfer any interest in the Mortgaged Property or any portion thereof, whether
or not such interest is subject or subordinate to the interest of Mortgagee,
without prior written consent of Mortgagee; or
(h) Failure by Mortgagor or any guarantor of the Secured
Indebtedness to pay, as and when due and payable, any installment of principal
and interest due under any other obligation of Mortgagor to Mortgagee, whether
such obligation shall currently exist or shall arise at any time during the term
of this Mortgage; or
(i) The sale or other disposition of any interest in Mortgagor
to any third party, without the prior written consent of Mortgagee; or
(j) Failure by Mortgagor to pay, as and when due and payable,
any installment of principal and/or interest due under any other obligation of
Mortgagor to any other party, whether such obligation shall currently exist or
shall arrive at anytime during the term of this Mortgage.
2.02 Acceleration of Maturity. If an Event of Default shall have
occurred, Mortgagee may declare the outstanding principal amount of the Note and
the interest accrued thereon, and all other sums secured hereby, to be due and
payable immediately and upon such declaration such principal and interest and
other sums shall immediately become and be due and payable without demand or
notice.
2.03 Power of Enforcement. If an Event of Default shall have occurred,
Mortgagee may, either with or without entry or taking possession as hereinabove
provided or otherwise, proceed by suit or suits at law or in equity or by any
other appropriate proceeding or remedy: (a) to enforce payment of the Note or
the performance of any term hereof or any other right; (b) to foreclose this
Mortgage and to sell, in its entirety separate lots or parcels, the Mortgaged
Property under the judgment or decree of a court or courts of competent
jurisdiction; and (c) to pursue any other remedy available to it. Mortgagee
shall take action either by such proceedings or by the exercise of its powers
with respect to entry or taking possession, or both, as Mortgagee may determine.
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2.04 Proceeds of Foreclosure. In the event the Mortgaged Property or
any portion thereof shall be sold in foreclosure proceedings or other
proceedings that may be authorized by law, the proceeds of such sale shall be
applied as follows: first, to the payment of all expenses incurred hereunder,
including reasonable payment of all expenses or in incurred hereunder, including
reasonable attorney's fees, as may be necessary for the collection of the
Secured Indebtedness or any part thereof and the foreclosure of this Mortgage;
second, to the payment, with interest as provided herein, of whatever sum or
sums Mortgagee may have paid or become liable to pay in carrying out the
objects, terms and stipulations of this Mortgage, including specifically,
without limitation, sums paid for taxes and insurance; third, to the payment and
satisfaction of the Secured Indebtedness and the balance, if any, being payable
to Mortgagor or to such other person or entity who shall be law be entitled to
such balance.
2.05 Leases. Mortgagee, at its option, is authorized to foreclose this
Mortgage, subject to the rights of any tenants of the Mortgaged Property, if
any, and the failure to make any such tenants parties defendant to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted by Mortgagor to be, a defense to any proceedings instituted by
Mortgagee to collect the Secured Indebtedness or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Property.
2.06 Purchase by Mortgagee. Upon any such foreclosure sale, Mortgagee
may bid for and purchase the Mortgaged Property and, upon compliance with the
terms of sale and applicable law, may hold, retain and possess and dispose of
such property in its own absolute right without further accountability to
Mortgagor.
2.07 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. Mortgagor agrees to the full extent permitted by law that in case of a
default on its part hereunder, neither Mortgagor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws as now or hereafter
in force, in order to prevent or hinder the enforcement or foreclosure of this
Mortgage, or the absolute sale of the Mortgaged Property or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereat, and Mortgagor, for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising the Mortgaged Property marshalled upon any foreclosure of the lien
hereof and agrees that Mortgagee or any court having jurisdiction to foreclose
such lien may sell the Mortgaged Property in part or as an entirety.
2.08 Receiver. If an Event of Default shall have occurred, Mortgagee,
to the extent permitted by law and without regard to the value or occupancy of
the Mortgaged Property, shall be entitled as a matter of right if it so elects
to the appointment of a receiver to enter upon and take possession of the
Mortgaged Property and to collect all rents, revenues, issues, income, products
and profits thereof and apply the same as the court may direct. The receiver
shall have all rights and powers permitted under the laws of the state where the
Land is located and such other powers as the court making such appointment shall
confer. The expenses, including the receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the powers herein contained shall be
secured by this Mortgage and become part of the Secured Indebtedness, bear
interest at the rate provided in the Note and be immediately due and payable.
The right to enter and take possession of and to manage and operate the
Mortgaged Property, and to collect the rents, issues and profits thereof,
whether by a receiver or otherwise, shall be cumulative to any other right or
remedy hereunder or afforded by law, and may be exercised concurrently therewith
or independently thereof. Mortgagee shall be liable to account only for such
rents, issues and profits actually received
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by Mortgagee. Notwithstanding the appointment of any receiver or other
custodian, Mortgagee shall be entitled as pledgee to the possession and control
of any cash, deposits, or instruments at this time held by, or payable or
deliverable under the terms of this Mortgage, to Mortgagee.
2.09 Suits to Protect the Mortgaged Property. Mortgagee shall have the
power and authority to institute and maintain any suits and proceedings as
Mortgagee may deem advisable (a) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or any violation of this Mortgage,
(b) to preserve or protect its interest in the Mortgaged Property, and (c) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Mortgagee.
2.10 Delay or Omission No Waiver. No delay or omission of Mortgagee or
of any holder of the Note to exercise any right, power or remedy accruing upon
any Event of Default shall exhaust or impair any such right, power or remedy or
shall be construed to waive any such Event of Default or to constitute
acquiescence therein. Every right, power and remedy given to Mortgagee may be
exercised from time to time and as often as may be deemed expedient by
Mortgagee.
2.11 No Waiver of One Default to Affect Another. No waiver of any Event
of Default hereunder shall extend to or affect any subsequent or any other Event
of Default then existing, or impair any subsequent or any other Event of Default
then existing, or impair any rights, powers or remedies consequent thereon. If
Mortgagee (a) grants forbearance or an extension of time for the payment of any
of the Secured Indebtedness; (b) takes other or additional security for the
payment thereof; (c) waives or does not exercise any right granted in the Note,
this instrument or any other instrument securing the Note; (d) releases any part
of the Mortgaged Property from the lien of this instrument, or any other
instrument securing the Note; (e) consents to the filing of any map, plat or
replat of the Land; (f) consents to the granting of any easement on the Land; or
(g) makes or consents to any agreement changing the terms of this instrument or
subordinating the lien or any charge hereof, no such act or omission shall
release, discharge, modify, change or affect the original liability under the
Note, this Mortgage or otherwise of any party liable thereunder or hereunder or
any subsequent purchaser of the Mortgaged Property or any part thereof or any
maker, co-signer, endorser, surety or guarantor. No such act or omission shall
preclude Mortgagee from exercising any right, power or privilege herein granted
or intended to be granted in case of any Event of Default then existing or of
any subsequent Event of Default. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Mortgaged Property,
Mortgagee, without notice to any person, firm or corporation, is hereby
authorized and empowered to deal with any such vendee or transferee with
reference to the Mortgaged Property or the Secured Indebtedness, or with
reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any of the liabilities or undertakings hereunder.
2.12 Discontinue Proceedings; Position of Parties Restored. If
Mortgagee shall have proceeded to enforce any right or remedy under this
Mortgage by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to Mortgagee, then and in every such case Mortgagor and Mortgagee
shall be restored to their former positions and rights hereunder, and all
rights, powers and remedies of Mortgagee shall continue as if no such proceeding
had occurred or had been taken.
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2.13 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Mortgagee by the Note, this Mortgage or any other instrument
securing the Note is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given hereunder or under the
Note or any other instrument securing the Note, now or hereafter existing at
law, in equity or by statute.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
3.01 Heirs, Successors, and Assigns Included in Parties. Whenever one
of the parties hereto is named or referred to herein, the heirs, successors and
assigns of such party shall be included and all covenants and agreements
contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee, shall
bind and inure to the benefit of their respective heirs, successor and assigns,
whether so expressed or not.
3.02 Addresses for Notices, etc.
(a) Any notice, report, demand or other instrument authorized
or required to be given or furnished under this Mortgage to Mortgagor or
Mortgagee shall be deemed given or furnished when addressed to the party
intended to receive the same, at the address of such party on the first page
hereof, and delivered at such address or deposited in the United States mail as
first class certified mail, return receipt requested, postage paid, whether or
not the same is actually received by such party.
(b) Either party may change the address to which any such
notice, report, demand or other instrument is to be delivered or mailed, by
furnishing written notice of such change to the other party, but no such notice
of change shall be effective unless and until received by such other party.
3.03 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Mortgage are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or expand or otherwise affect
any of the terms hereof.
3.04 Invalid Provisions to Affect No Others. In the event any of the
covenants, agreements, terms or provisions contained in the Note, this Mortgage
or any other instrument securing the Note shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein and in the Note and any other
instrument securing the Note shall be in no way affected, prejudiced or
disturbed thereby.
3.05 Changes, etc. Neither this Mortgage nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waive, discharge or termination is sought. Any
agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage
shall be superior to the rights of the holder of any intervening lien or
encumbrance.
3.06 Governing Law. The performance required by this instrument shall,
insofar as is possible, be rendered to Mortgagee at its office in Naples,
Florida. Mortgagor and Mortgagee intend that the validity and construction of
the obligations secured by this instrument and the enforcement of this Mortgage
shall be governed by the laws of the State of Florida. Should any obligation or
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remedy under this instrument be invalid or unenforceable under the laws provided
herein to govern, then the laws of another state whose laws can validate and
apply to this instrument shall apply.
3.07 Default Rate. The Default Rate shall be the rate of interest
provided in the Note, on the amount of the Secured Indebtedness, as of the date
of an Event of Default.
3.08 Remedies. Mortgagee shall have the right from time to time to xxx
for any sums, whether interest, principal or any installment of either or both,
taxes, penalties, or any other sums required to be paid under the terms of this
Mortgage, as the same become due, without regard to whether or not all of the
Secured Indebtedness shall be due on demand, and without prejudice to the right
of Mortgagee thereafter to enforce any appropriate remedy against the Mortgagor,
including an action of foreclosure, or any other action, for a default or
defaults by Mortgagor existing at the time such earlier action was commenced.
3.09 Rights of Mortgagee. The rights of Mortgagee, granted and arising
under the clauses and covenants contained in this Mortgage and the Note, shall
be separate, distinct and cumulative of other powers and rights herein granted
and all other rights which Mortgagee may have in law or equity, and non of them
shall be in exclusion of the others; and all of them are cumulative to the
remedies for collection of indebtedness, enforcement of rights under mortgages,
and preservation of security as provided at law. No act of Mortgagee shall be
construed as an election to proceed under any one provision herein or under the
Note to the exclusion of any other provision, or an election of remedies to the
bar of any other remedy allowed at law or in equity, anything herein or
otherwise to the contrary notwithstanding.
3.10 Covenants of Mortgagor. The covenants of Mortgagor herein are
covenants running with the land and the title to the Mortgaged Property and
touch and concern the Mortgaged Property.
ARTICLE FOUR
LENDING PROVISIONS
4.01. Future Advances. The total amount of indebtedness that may be so
secured may decrease or increase from time to time during a period not to exceed
twenty (20) years from the date of this Mortgage, but the total unpaid balance
so secured at one time shall not exceed One Million and 00/100 Dollars
($1,000,000.00) plus interest thereon, and nay disbursements made for the
payment of taxes, levies or insurance on the Mortgaged Property, with interest
on such disbursements at the Default Rate.
4.02. Performance of Labor or Furnishing of Material. Nothing in this
instrument shall: (i) constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
material or other property in respect of the Mortgaged property or any part
thereof, or (ii) give Mortgagor any right, power or authority to contract for or
permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee, or the holder of the Note in respect thereof or any
claim that any claim of 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 instrument.
4.03. Interest Rate. Mortgagor and Mortgagee acknowledge and agree that
Mortgagee is a national banking association, chartered under the laws of the
United States of America, located in
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the State of Florida, and that under Section 85 of Title 12 of the United States
Code, the maximum rate of interest which Mortgagee may take, receive, reserve
and charge on the Secured Indebtedness shall be determined in accordance with
the laws of the State of Florida. In no event shall the amount of interest
(including any prepaid interest or other charges or fees held to be interest by
a court of competent jurisdiction) accrue to be payable under the Note exceed
the highest contract rate of interest allowed by applicable law for the time
such indebtedness shall be outstanding and unpaid, and if by reason of the
acceleration of maturity of the Secured Indebtedness, or for any other reason,
interest in excess of such highest legal rate shall be due and paid, any such
excess shall constitute and be treated as a payment on the principal evidenced
by the Note and shall operate to reduce such principal by the amount of such
excess, or if in excess of the principal indebtedness, such excess shall be
waived or refunded to the undersigned. It is the express intent hereof that the
undersigned not pay and Holder of the Note not receive, directly or indirectly
in any manner whatsoever, interest in excess of that which may be legally paid
by the Mortgagor under applicable law.
4.04. Hazardous or Toxic Materials. Mortgagor expressly represents to
Mortgagee that to the best of its knowledge the Mortgaged Property has not in
the past been used, is not presently being used, and will not in the future be
used for the handling, storage, transportation, or disposal of hazardous or
toxic materials except as permitted by law and approved in advance by Mortgagee
and that no spillage or leakage of such substances has occurred on the Mortgaged
Property. Mortgagor agrees to indemnify, defend and hold Mortgagee harmless from
and against any loss, liability, or damages to Mortgagee, including without
limitation attorneys' fees, incurred by Mortgagee as a result of such past,
present or future use, handling, storage, transportation, disposal, spillage or
leakage of hazardous or toxic materials.
Mortgagee, at Mortgagee's sole option at any time that Loan
proceeds remain outstanding, may obtain, at Mortgagor's expense, a satisfactory
report from a reputable environmental consultant of Mortgagee's choice as to
whether the Mortgaged Property has been or presently is being used for the
handling, storage, transportation, or disposal of hazardous or toxic materials
and that no spillage or leakage of such materials has occurred on the Mortgaged
Property.
In the event Mortgagee requests such a report and said report
indicates such past or present use, handling, storage, transportation, disposal,
spillage or leakage, Mortgagee may require that all violations of law with
respect to hazardous or toxic materials be corrected and/or that Mortgagor
obtain all necessary environmental permits within thirty (30) days of
Mortgagee's notice to Mortgagor or Mortgagor's discovery of a violation(s),
whichever occurs sooner, provided, however, if such violation(s) cannot be
corrected or such permit obtained within such thirty (30) day period, and
provided Mortgagor commences the necessary corrective action within such thirty
(30) day period and diligently pursues compliance or work necessary to obtain
necessary permits, Mortgagor shall have a reasonable time, not to exceed ninety
(90) days, to correct such condition or to obtain required permits within such
time periods shall constitute a default hereunder entitling Mortgagee to the
remedies provided herein.
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IN WITNESS WHEREOF, the undersigned has caused this instrument
to be signed and sealed the day and year first above written.
WITNESSES: CERTIFIED DIABETIC SUPPLIES INC., a
Florida corporation
/s/ XXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXXX
----------------------------- ---------------------------------
Witness #1 Xxxxx X. Xxxxxxx
Its: President
Xxxxx X. Xxxxxxxx
-----------------------------
(Type or Print Name)
/s/ XXXXX X. XXXXXXXXX
-----------------------------
Witness #2
Xxxxx X. Xxxxxxxxx
-----------------------------
(Type or Print Name)
STATE OF FLA
----------------
COUNTY OF XXXXXXX
---------------
The foregoing instrument was acknowledged before me this 31st
day of May, 1996 by Xxxxx X. Xxxxxxx, as President of CERTIFIED DIABETIC
SUPPLIES INC., a Florida corporation, on behalf of the corporation. He is
personally known to me or has produced
____________________________________________________________ (type of
identification) as identification and did (did not) take an oath. NOTE: If a
type of identification is not inserted in the blank provided, then the person
executing this instrument was personally known to me. If the words in the
parenthetical "did not" are not circled, then the person executing this
instrument did take an oath.
/s/ XXXXX X. XXXXXXXX
---------------------------------
Signature
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
(Type or Print Name of Acknowledger)
---------------------------------
(Title or Rank)
---------------------------------
(Serial Number, if any)
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EXHIBIT "A"
Xxxx 00 xxx 00, X & X XXXXXXXXXX XXXX, an unrecorded plat in Section 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 25 East, Xxxxxxx County, Florida, more particularly
described as follows:
Parcel 62
Commencing at the West 1/4 corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx; thence along the West line of said Section 11, N
0(Degree) 10' 36" W, 1864.95 feet to the Northerly right-of-way line of a road;
thence along said right-of-way line N 89(Degree) 28' 18" E, 1680.26 feet for a
Place of Beginning: thence N 0(Degree) 31' 42" W, 150.09 feet; thence N
89(Degree) 25' 20" E, 100.00 feet; thence S 0(Degree) 31' 42" E 150.18 feet to
said right-of-way line; thence S 89(Degree) 28' 18" W, 100.00 feet to the Place
of Beginning; being part of the North 1/2 of Section 11, Township 49 South,
Range 25 East, Xxxxxxx County, Florida.
Parcel 63
Commencing at the West 1/4 corner of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx; thence along the West line of said Section 11, N
0(Degree) 10' 36" W, 1829.95 feet to the centerline of a road; thence along said
centerline, N 89(Degree) 28' 18" E, 1580.47 feet for a Place of Beginning;
thence N 0(Degree) 31' 42" W, 185.01 feet; thence N 89(Degree) 25' 20" E, 100.00
feet; thence S 0(Degree) 31' 42" E, 185.00 feet to said centerline; thence S
89(Degree) 28' 18" W, 100.00 feet to the Place of Beginning, being part of the
North 1/2 of Section 11, Township 49 South, Range 25 East, Xxxxxxx County,
Florida.
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EXHIBIT "B"
PERMITTED EXCEPTIONS
--------------------
1. Restriction regarding ingress and egress as contained in Warranty Deed
recorded in O.R. Book 1365, Page 943.
2. Restrictions contained in O.R. Book 472, Page 794.
3. Road Easement over the Southerly 35 feet, as evidenced in O.R. Book 578,
Page 222.
4. Drainage Easement along the North 15 feet to Xxxxxxx County, as recorded in
O.R. Book 1419, Page 1876.
5. Terms, conditions and rights contained in Grant of Easement recorded in O.R.
Book 1691, Page 119.
6. Resolution creating the Pine Ridge Industrial Park Area Improvement
Assessment District recorded in O.R. Book 1153, Page 431.
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