Exhibit 10.10
This document prepared by
and after recording return to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx White Xxxxx Banker P.A.
000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (herein called "Xxxx-
xxxx") is made this 21st day of June, 2004, between the Mortgagor,
Shells Seafood Restaurants, Inc., a Delaware corporation (herein
"Owner"), whose address is 00000 Xxxxx Xxxx Xxxxx Xxx., Xxxxx 000,
Xxxxx, Xxxxxxx 00000 in favor of Mortgagee, Shells Investment
Partners, LLC, a Florida limited liability company (collectively
referred to as "Mortgagee") whose address is 000 X. Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000.
WHEREAS, Owner is indebted to Mortgagee in the principal sum
of One Hundred Sixty Five Thousand and Three Hundred Fifteen and
7/100ths Dollars ($165,315.07), which indebtedness is evidenced by
Owner's note (the "Note") dated June 21, 2004, which Note matures
on June 1, 2007;
TO SECURE to Mortgagee (a) the repayment of the indebtedness
evidenced by the Note, with interest thereon, the payment of all
other sums, with interest thereon, advanced in accordance herewith
to protect the security of this Mortgage, and the performance of
the covenants and agreements of Owner herein contained, and (b) the
repayment of any future advances, with interest thereon, made to
Owner by Mortgagee pursuant to the paragraph hereof entitled
"Future Advances" Owner, for $10.00 and other valuable
consideration, the receipt of which is acknowledged, does hereby
mortgage, grant, bargain, sell and convey to Mortgagee in fee
simple forever, the real property located in the County of Polk,
State of Florida and described as follows:
See Exhibit "A" attached hereto and incorporated herein by
reference
TOGETHER with all tenements, hereditaments and appurtenances
thereto, and all reversions, rents, issues and profits therefrom
and all the improvements, structures and fixtures now or hereafter
located on said real property, whether attached, detached or
detachable, and all easements, riparian and other rights, rents,
royalties, mineral, oil and gas rights and profits, water, water
rights, and water stock related thereto, all of which, including
replacements and additions thereto, shall be deemed to be and
remain a part of the real property covered by this Mortgage.
TO FURTHER SECURE payment of the Note and performance of
Owner's obligations described in this Mortgage, Owner does hereby
grant to Mortgagee a security interest in the following: (a) all
inventory, equipment, goods, accounts, contract rights, general
intangibles, and all fixtures or personal property of every nature
whatsoever, as those terms are defined in the Florida Uniform
Commercial Code, both tangible and intangible, located in, on, or
arising from, or used or intended to be used in connection with (or
with the operation of) the real property described in this
Mortgage, or any buildings, structures and other improvements now
or hereafter thereon; (b) all construction materials (whether
located at the site of the improvements or elsewhere), furniture,
furnishings, carpets, drapes, appliances, motor vehicles, water
heaters, air conditioning, electrical, plumbing or lighting
equipment, sprinkler systems, security systems, elevators,
landscaping, crops, and similar items, located in or on, or arising
from or used or intended to be used in connection with (or with the
operation of) the real property described in this Mortgage, or any
buildings, structures or other improvements now or hereafter
thereon; (c) all rents, issues, profits, proceeds, and revenues of
the real property described in this Mortgage, and of any
improvements thereon, from time to time accruing, including but not
limited to those from leases or tenancies now existing or hereafter
created, (d) all judgments, awards of damages and settlements
resulting from condemnation proceedings or the takings of the real
property described in this Mortgage or any part thereof, under the
power of eminent domain, or for any damage (whether caused by such
taking or otherwise) to said real property or the improvements
thereon, or any part thereof, or to any right appurtenant thereto,
including any award for change of grade or streets and including
any severance or consequential damages, (e) all loss proceeds of
all hazard insurance policies payable with respect to damage to the
fixtures and personal property described above and/or the
improvements now or hereafter located on the real property
described in this Mortgage, (f) all of Owner's interest on any
licenses, permits, franchises, liquor licenses, deposits, tap fees,
utility agreements, or similar items, now or hereafter existing,
which in any way relate to or are useful in connection with the use
or operation of the real property described in this Mortgage or any
improvements thereon, and (g) all other types of properties or
rights of Owner described in this Mortgage. The foregoing includes
not only all such property now owned by Owner, but all that may
hereafter be acquired by Owner, and all extensions, additions,
improvements, betterments, renewals, accessions, proceeds, and
replacements to any of the foregoing. This instrument shall
constitute a security agreement as that term is used in the Florida
Uniform Commercial Code. It is agreed by the parties hereto that
it is their intent that to the extent permitted by law, all such
property in any way attached to the real property or any
improvement thereof shall be deemed intended to be permanently
affixed to the real estate and intended to be a part of the real
property encumbered hereby.
ALL of the foregoing realty, fixtures, and personal property
being hereinafter referred to as the "Property".
COVENANTS. Owner covenants and agrees with Mortgagee as
follows:
1. Warranties of Title. Owner covenants that Owner is lawfully
seized of absolute fee simple title to the above described real
property hereby conveyed and has the right to mortgage, grant and
convey the Property, that the Property is unencumbered except as
shown currently of record and that Owner will warrant and defend
generally the title to the Property against all claims and demands,
subject only to mortgages of record. Owner covenants to execute
and deliver such further instruments as may be requested by
Mortgagee to convey and mortgage to Mortgagee absolute fee simple
title to the Property or to subject to the lien of this Mortgage
any property intended to be encumbered hereby, or to perfect,
protect, or record any lien evidenced hereby.
2. Payment of Principal and Interest. Owner shall promptly
pay when due the principal of and interest on the indebtedness
evidenced by the Note, prepayment and late charges as provided in
the Note, and the principal of and interest on any Future Advances
secured by this Mortgage.
3. Charges; Liens. Owner shall promptly pay when due all
taxes, assessments and other charges, fines and impositions
attributable to the Property which may attain a priority over this
Mortgage, and leasehold payments or ground rents, if any. Owner
shall promptly furnish to Mortgagee all notices of amounts due
under this paragraph, and shall promptly furnish to Mortgagee
receipts evidencing such payments. Owner shall promptly discharge
any lien which has priority over this Mortgage; provided, that
Owner shall not be required to discharge any such lien so long as
Owner shall in good faith contest such lien by legal proceedings
which operate to prevent the enforcement of the lien or forfeiture
of the Property or any part thereof.
4. Hazard Insurance. Owner shall keep the improvements now
existing or hereafter erected on the above described real property
insured against loss by fire, hazards included within the term
"extended coverage", and such other hazards as Mortgagee may
require and in such amounts and for such period as Mortgagee may
require; provided, that Mortgagee shall not require that the amount
of such coverage exceed the full insurable value of the Property.
The insurance carrier providing the insurance shall be chosen
by Owner subject to approval by Mortgagee, provided, that such
approval shall not be unreasonably withheld or delayed. All
premiums on insurance policies shall be paid by Owner promptly when
due, at least 30 days prior to the expiration of the policies.
All insurance policies and renewals thereof shall be in form
acceptable to Mortgagee and shall include a standard mortgage
clause in favor of and in form acceptable to Mortgagee. Mortgagee
shall have the right to hold the policies and renewals thereof. At
least 30 days prior to each expiration of the policy, Owner shall
furnish to Mortgagee a renewal certificate or renewal policy and a
receipt for the paid premium. In the event of loss, Owner shall
give prompt notice to the insurance carrier and Mortgagee.
Mortgagee may make proof of loss if not made promptly by Owner.
Unless Mortgagee and Owner otherwise agree in writing,
insurance proceeds shall be applied to restoration or repair of the
Property damaged, provided such restoration or repair is
economically feasible and the security of this Mortgage is not
thereby impaired. If such restoration or repair is not
economically feasible or if the security of this Mortgage would be
impaired, the insurance proceeds shall be applied to the sums
secured by this Mortgage, with the excess, if any, paid to Owner.
If insurance proceeds are to be used for restoration or
repair, the proceeds shall be held by Mortgagee, and disbursed on a
monthly basis upon written draw requests from Owner, in accordance
with the percentage of the restoration or repair completed, upon
the furnishing by Owner to Mortgagee of appropriate lien waivers
from all parties who have furnished labor or materials in
connection therewith. All such restoration or repair shall be in
accordance with the original plans and specifications for the
improvements unless Owner and Mortgagee otherwise agree in writing,
and shall be supervised by an architect who is a member of the
American Institute of Architects and who has been approved by
Mortgagee. The architect's fees shall be paid by Owner.
If the Property is abandoned by Owner, or if Owner fails to
respond to Mortgagee within 30 days from the date notice is mailed
by Mortgagee to Owner that the insurance carrier offers to settle a
claim for insurance benefits, Mortgagee is authorized to collect
and apply the insurance proceeds at Mortgagee's option either to
restoration or repair of the Property or to the sums secured by
this Mortgage.
Unless Mortgagee and Owner otherwise agree in writing, any
such application of proceeds to principal shall not extend or
postpone the due date of the installments under the Note or change
the amount of such installments. If pursuant to foreclosure of
this Mortgage the Property is acquired by Mortgagee, all right,
title and interest of Owner in and to any insurance policies and in
and to the proceeds thereof resulting from damage to the Property
prior to the sale or acquisition shall pass to Mortgagee to the
extent of the sums secured by this Mortgage immediately prior to
such sale or acquisition.
5. Preservation and Maintenance of Property. Owner shall
keep the Property in good repair and shall not commit waste or
permit impairment or deterioration of the Property. Owner shall
not demolish or remove any part of the Property without Mortgagee's
consent.
6. Protection of Mortgagee's Security. If Owner fails to
perform the covenants and agreements contained in this Mortgage, or
if any action or proceeding is commenced which materially affects
Mortgagee's interest in the Property including, but not limited to,
eminent domain, insolvency, code enforcement, or arrangements or
proceedings involving a bankrupt or decedent, then Mortgagee at
Mortgagee's option, upon notice to Owner, may make such
appearances, disburse such sums and take such action as is
necessary to protect Mortgagee's interest, including, but not
limited to, disbursement of reasonable attorney's fees and entry
upon the Property to make repairs.
Any amounts disbursed by Mortgagee pursuant to this paragraph
entitled "Protection of Mortgagee's Security", with interest
thereon, shall become additional indebtedness of Owner secured by
this Mortgage. Unless Owner and Mortgagee agree to other terms of
payment, such amounts shall be payable upon notice from Mortgagee
to Owner requesting payment thereof, and shall bear interest from
the date of disbursement at the rate payable from time to time on
outstanding principal under the Note unless payment of interest at
such rate would be contrary to applicable law, in which event such
amount shall bear interest at the highest rate permissible under
applicable law. Nothing contained in this paragraph entitled
"Protection of Mortgagee's Security" shall require Mortgagee to
incur any expense or take any action hereunder.
7. Inspection. Mortgagee may make or cause to be made
reasonable entries upon and inspections of the Property, provided
that Mortgagee shall give Owner notice prior to any such inspection
specifying reasonable cause therefor related to Mortgagee's
interest in the Property.
8. Condemnation. The proceeds of any award or claim for
damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or
for conveyance in lieu of condemnation, are hereby assigned and
shall be paid to Mortgagee.
In the event of a taking of the Property, the proceeds shall
be applied to the sums secured by this Mortgage, with the excess,
if any, paid to Owner.
If the Property is abandoned by Owner, or if, after notice by
Mortgagee to Owner that the condemnor offers to make an award or
settle a claim for damages, Owner fails to respond to Mortgagee
within 30 days after the date such notice is mailed, Mortgagee is
authorized to collect and apply the proceeds, at Mortgagee's
option, either to restoration or repair of the Property or to the
sums secured by this Mortgage.
Unless Mortgagee and Owner otherwise agree in writing, any
such application of proceeds to principal shall not extend or
postpone the due date of the installments under the Note or change
the amount of such installments.
9. Owner Not Released. Extension of the time for payment or
modification of amortization of the sums secured by this Mortgage
granted by Mortgagee to any successor in interest of Owner shall
not operate to release, in any manner, the liability of the
original Owner and Owner's successors in interest. Mortgagee shall
not be required to commence proceedings against such successor or
refuse to extend time for payment or refuse to otherwise modify
amortization of the sums secured by this Mortgage by reason of any
demand made by the original Owner and Owner's successors in
interest.
10. Forbearance by Mortgagee Not a Waiver. Any forbearance
by Mortgagee in exercising any right or remedy hereunder, or
otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of any such right or remedy. The procurement
of insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be a waiver of Mortgagee's right to accelerate
the maturity of the indebtedness secured by this Mortgage.
11. Remedies Cumulative. All remedies provided in this
Mortgage are distinct and cumulative to any other right or remedy
under this Mortgage or afforded by law or equity, and maybe
exercised concurrently, independently or successively.
12. Successors and Assigns Bound; Joint and Several
Liability; Captions. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective
heirs, personal representatives, successors and assigns of
Mortgagee and Owner. Owner waives all right of homestead and
exemption granted by the Constitution and laws of Florida. All
covenants and agreements of Owner shall be joint and several. The
captions and headings of the paragraphs of this Mortgage are for
convenience only and are not to be used to interpret or define the
provisions hereof.
13. Notice. Except for any notice required under applicable
law to be given in another manner, (a) any notice to Owner provided
for in this Mortgage shall be given by mailing such notice by
certified mail addressed to Owner at the address stated above for
Owner or at such other address as Owner may designate by notice to
Mortgagee as provided herein, and (b) any notice to Mortgagee shall
be given by certified mail, return receipt requested to Mortgagee's
address stated herein or to such other address as Mortgagee may
designate by notice to Owner as provided herein. Any notice
provided for in this Mortgage shall be deemed to have been given to
Owner or Mortgagee when given in the manner designated herein.
14. Severability. This Mortgage shall be governed by the law
of Florida. In the event that any provision or clause of this
Mortgage or the Note conflicts with applicable law, such conflict
shall not affect other provisions of this Mortgage or the Note
which can be given effect without the conflicting provision, and to
this end the provisions of the Mortgage and the Note are declared
to be severable.
15. Acceleration: Remedies. Time is of the essence in the
performance of Owner's covenants herein. If any breach of any
covenant or agreement of Owner in this Mortgage (including the
covenants to pay when due any sums secured by this Mortgage)
continues for more than ten (10) days, Mortgagee at Mortgagee's
option may declare all of the sums secured by this Mortgage to be
immediately due and payable without further demand and may
foreclose this Mortgage by judicial proceeding, or take such other
action or pursue such other remedies as provided herein or allowed
under the laws of the State of Florida. In such event Mortgagee
shall be entitled to collect from Owner all expenses incurred in
enforcing this Mortgage, including, but not limited to, reasonable
attorney's fees, and costs of documentary evidence, abstracts and
title reports. Such attorney's fees shall include, but not be
limited to, attorney's fees incurred in connection with appellate
proceedings.
16. Assignment of Rents; Appointment of Receiver. As
additional security hereunder, Owner hereby assigns to Mortgagee
all the rents, profits, and proceeds of the Property, provided that
Owner shall, prior to acceleration as provided above or abandonment
of the Property, have the right to collect and retain such rents as
they become due and payable.
Upon acceleration of the indebtedness as provided above or
abandonment of the Property, Mortgagee shall be entitled to have a
receiver appointed by a court to enter upon, take possession of and
manage the Property and to collect the rents of the Property,
including those past due, and Owner hereby consents to the
appointment of a receiver. All rents collected by the receiver
shall be applied first to payment of the costs of management of the
Property and collection of rents, including, but not limited to,
receiver's fees, premiums on receiver's bonds and reasonable
attorney's fees, and then to the sums secured by this Mortgage.
The receiver shall be liable to account only for those rents
actually received.
17. Additional Taxes. Owner agrees to pay all documentary
stamps, intangible tax, and penalties thereon, which are now or
hereafter due on the Note or this Mortgage.
18. Prohibited Substances. As used herein, the term
"Prohibited Substance" shall mean any substance whose storage or
existence in or on the Property is restricted, prohibited, or is
penalized under any law, ordinance, rule or regulation which is
aimed at protecting the air, water, ground, or the environment, or
whose release into the air, water, ground, or the environment is
restricted, prohibited, or penalized under any such law, ordinance,
rule or regulation, or whose removal from the Property is required
by any such law, ordinance, rule or regulation. The term
"Prohibited Substance" shall include, but shall not be limited to:
asbestos, petroleum products, PCBs, and all substances defined as,
or which would be considered to be, a "hazardous substance",
"contaminant", "pollutant", "hazardous material", "hazardous
waste", "hazardous chemical substance", "solid waste", "toxic
substance", "toxic pollutant", or "pollution" under the following
Federal Statutes, as amended: (a) the Comprehensive Environmental
Response, Compensation, and Liability Act, Chapter 103, 42 U.S.C.
'9601 et seq. seq., (b) the Hazardous Materials Transportation Act,
Chapter 27, 49 U.S.C. '1802 et seq., (c) the Resource Conservation
and Recovery Act, Chapter 82, 42 U.S.C. '6901 et seq., (d) the
Toxic Substances Control Act, Chapter 53, 15 U.S.C. '2601 et seq.,
(e) the Federal Water Pollution Control Act, Chapter 26, 33 U.S.C.
'1251 et seq., and (f) the Clean Air Act, Chapter 85, 42 U.S.C.
'7401. Owner warrants and represents to Mortgagee that the
Property (including the Land) do not contain any Prohibited
Substances. The Owner covenants with Mortgagee that it shall not
permit any such Prohibited Substances to be discharged onto or
brought onto the Property. Owner further covenants with Mortgagee
that if any such Prohibited Substances are discovered on the
Property, same shall be immediately removed by Owner, with proper
and legal disposal, all as required under applicable laws,
ordinances and regulations. Owner hereby unconditionally agrees to
indemnify and to hold Mortgagee harmless from and against any and
all loss, claim, liability, damage cost, expense or cause of action
arising out of or related to the breach of the foregoing warran-
ties, representations and covenants, including, without limitation,
all cost of removal and disposal of such Prohibited Substance and
any "clean-up" associated therewith, all costs of determining
whether the Property are in compliance with applicable laws,
ordinances and regulations, all costs of causing the Property to be
in compliance with all applicable laws, ordinances and regulations,
and all Mortgagee's reasonable attorneys' fees, consultants' fees
and court costs associated with the existence of such Prohibited
Substances in or on the Property.
Mortgagee shall have the right, in its sole discretion upon
reasonable cause, to require Owner to periodically (but not more
frequently than annually unless an environmental complaint is then
outstanding) perform (at Owner's expense) an environmental audit
and, if deemed necessary by Mortgagee, an environmental risk
assessment of the Property, each of which must be satisfactory to
Mortgagee. Should Owner fail to perform said environmental audit
or risk assessment within 30 days of the Mortgagee's written
request, Mortgagee shall have the right but not the obligation to
retain an environmental consultant to perform said environmental
audit or risk assessment. All costs and expenses incurred by
Mortgagee in the exercise of such rights shall be secured by this
Mortgage and shall be payable by Owner upon demand or charged to
Owner's loan balance at the discretion of Mortgagee.
The obligations of Owner under the foregoing representations,
warranties, covenants and indemnity, shall survive the satisfaction
or foreclosure of this Mortgage and the payment of the Note.
19. Transfer of the Property; Assumption. If all or any part
of the Property or an interest therein is sold, leased, or
transferred by Owner without Mortgagee's prior written consent,
excluding (a) a transfer by devise, descent or by operation of law
upon death or (b) the grant of any leasehold interest of ten (10)
years or less not containing an option to purchase, Mortgagee may,
at Mortgagee's option declare all the sums secured by this Mortgage
to be immediately due and payable. Mortgagee shall have waived
such option to accelerate if, prior to the sale, lease, or
transfer, Mortgagee and the person to whom the Property is to be
sold, leased, or transferred reach agreement in writing that the
credit of such person is satisfactory to Mortgagee and if the party
to whom the Property is transferred agrees in writing to assume
Owner's obligations under the Note and this Mortgage. However, no
waiver by Mortgagee of the right to accelerate the indebtedness
upon sale, lease, or transfer, nor any approval by Mortgagee of the
credit of the purchaser or transferee shall be deemed to be a
release of the Owner of any liability under the Note or this
Mortgage and the original Owner shall remain fully liable thereon.
20. Dissolution and Bankruptcy. If Owner is dissolved or
liquidated or if proceedings under the bankruptcy laws of the
United States are filed by or against Owner, or any arrangement for
creditors, reorganization, receivership or similar action is filed
by or against Owner, same shall constitute a breach of Owner's
covenants herein contained, giving rise to all rights and remedies
provided herein in the event of default, including the right of
acceleration.
21. Terms. The terms Owner and Mortgagee, and any pronouns
used in connection therewith or in lieu thereof, shall be construed
to include the plural as well as the singular, and the masculine,
feminine and neuter gender, whenever and wherever the context so
admits or requires.
IN WITNESS WHEREOF, Owner has executed this Mortgage.
Signed, sealed and delivered SHELLS SEAFOOD RESTAURANTS, INC.,
in the presence of: A Delaware corporation
Witness: /s/ Xxxxxxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxx President
Witness: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
STATE OF FLORIDA )
COUNTY OF Hillsborough )
The foregoing instrument was acknowledged before me on June 18,
2004, by Xxxxxx X. Xxxxxxxx as President of Shells Seafood
Restaurants, Inc., a Delaware corporation, on behalf of the
corporation. She is personally known to me .
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
(Type or Print Name)
My Commission Expires:04-08-08
(Affix Notary Seal) My Commission Number DD301220
Notary Seal
