RECD RECORDED in the OFFICIAL RECORDS of XXXXXXX COUNTY, FL OBLD 2525000.00
XXXXXX XXXXXXX at 08:39 AM XXXXXX X. XXXXX, CLERK OBLI 2525000.00
000 XXXXX XXX X#000 REC FEE 55.50
XXXXXX, XX 00000 DOC-.35 8837.50
INT -.002 5050,00
MORTGAGE AND SECURITY AGREEMENT
(First Mortgage)
THIS MORTGAGE made on this 17th day of December, 1997, by CERTIFIED
DIABETIC SERVICES, INC., a Delaware corporation (hereinafter referred to as
the "Mortgagor") in favor of FIRST NATIONAL BANK OF NAPLES, a national banking
association (hereinafter referred to as the "Mortgagee").
Mortgagor is indebted to Mortgagee in the principal sum of TWO
MILLION FIVE HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS($2,525,000.00)
plus interest accruing and payable thereon under and as evidenced by that
certain promissory note dated of even date herewith and by reference being a
part hereof to the same extent as though set forth in full herein.
To better secure the payment of the principal sum set out in said
promissory note, and interest thereon, and in consideration thereof, and for
other valuable considerations, Mortgagor has granted, bargained and sold and
by these presents does grant, bargain and sell to Mortgagee and to its
successors and assigns forever, all of Mortgagor's fee simple interest in and
to land located in Xxxxxxx County, Florida, more particularly described on
Exhibit "A" attached hereto and made a part hereof by reference.
This is a first mortgage on the Property.
TOGETHER with any and all buildings and other improvements, and all
fixtures in or on such buildings and other improvements, now or hereafter
situated on the above described land, and all additions thereto and all
renewals, replacements and replenishments thereof, including all personal
property, the heating and air conditioning units, equipment, machinery, ducts
and conduits, whether detachable or not, now or hereafter located in and about
the above described premises, and all additions thereto and all renewals,
replacements and replenishments thereof, and personal property now and
hereafter located thereon; and
This Instrument Prepared By:
Xxxxxxx X. Xxxxxxx, Esq.
Goodlette Coleman & Xxxxxxx, P.A.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
TOGETHER with all and singular the tenements, hereditaments and
appurtenances thereto belonging or in anywise thereunto appertaining,
including riparian and/or littoral rights, all permits and licenses for
maintaining and using the premises, any easements benefiting or serving the
property, any reversionary interest in any roads or streets, and any rights in
any easements benefiting and serving the property encumbered hereby or any
portions thereof, and the rents, issues and profits thereof, and also all the
estate, right, title, interest and all claim and demand whatsoever, as well in
law as in equity, of Mortgagor in and to the same, including but not limited
to all rents, issues, profits, revenues, royalties, rights and benefits
derived from the premises from time to time accruing, whether now existing or
hereafter created, reserving to Mortgagor, however, so long as Mortgagor is
not in default hereunder, the right to receive and retain the rents, issues
and profits.
TO HAVE AND TO HOLD the above described property to Mortgagee, its
successors and assigns, forever, and Mortgagor does hereby fully warrant the
title in and to said land, and will defend the same against the lawful claims
of all persons whomsoever; provided always that if Mortgagor shall pay to
Mortgagee that certain promissory note above described and shall perform all
other covenants and conditions of said promissory note, and of any renewal,
extension or modification thereof, and of this mortgage, then this mortgage
and the estate hereby created shall cease and be null and void.
Mortgagor further covenants and agrees with Mortgagee as follows:
1. To pay all sums, including interest, secured by the Mortgage as
hereby modified when due, as provided for in said promissory note and any
renewal, extension or modification thereof and in the Mortgage as modified
hereby, all such sums to be payable in lawful money of the United States of
America at Mortgagee's principal office, or at such other place as Mortgagee may
designate in writing.
2. To pay when due, and without requiring any notice form Mortgagee,
all taxes, assessments of any type or nature and other charges levied or
assessed against the premises hereby encumbered and to produce receipts therefor
upon demand. Prior to delinquency to pay and discharge any claim, lien or
encumbrance against such premises which is superior to this mortgage and to
permit no default or delinquency on any other lien, encumbrance or charge
against such premises.
3. If required by Mortgagee, to pay to Mortgagee, together with and in
addition to interest and principal, a sum equal to one-twelfth of the yearly
taxes and assessments which may be levied against the premises, and (if so
required) one-twelfth of the yearly premiums for insurance thereon. The amount
of such taxes, assessments and premiums, when unknown, shall be estimated by
Mortgagee. Such deposits shall be used by Mortgagee to pay such taxes,
assessments and premiums when due. Any insufficiency of such account to pay such
charges when due shall be paid by Mortgagor to Mortgagee on demand. If, by
reason of any default by Mortgagor under any provision of this mortgage or the
note secured hereby, Mortgagee declares to be immediately due and payable all
sums secured hereby, such deposits shall become the property of Mortgagee, and a
security interest therein is hereby created. The enforceability of the covenants
relating to taxes, assessments and insurance premiums herein otherwise provided
shall not be affected excepted insofar as those obligations have been met by
compliance with this paragraph. Mortgagee may from time to time at its option
waive, and after any such waiver reinstate, any or all provisions hereof
requiring such deposits, by notice to Mortgagor in writing. While any such
waiver is in effect Mortgagor shall pay taxes, assessments and insurance
premiums as herein elsewhere provided.
4. Mortgagor, at its expenses, will maintain with respect to the
mortgaged property: (a) insurance on all improvements and buildings against loss
or damage by fire, windstorm and other such risks as are included under
"extended coverage" policies, in amounts sufficient to prevent Mortgagor or
Mortgagee from becoming a co-insurer, and in any event in amounts not less than
the then full insurable value of the mortgaged property; (b) comprehensive
public liability insurance against claims for personal injury or death of
persons and damage to or destruction of property, in such amounts as Mortgagee
may require; (c) workmen's compensation insurance for its employees and any
other individuals for whom Mortgagor is required by law to maintain such
insurance with respect to any work on or about the mortgaged property or any
part thereof; and (d) such other insurance against such hazards, as Mortgagee
from time to time may reasonably require, including, without limitation,
windstorm, flood, wind driven water, hurricanes and collapse, if available, at
all times. All insurance with respect to the mortgaged property shall (a) be
written by an insurer or insurers satisfactory to Mortgagee; (b) name Mortgagor
and Mortgagee as insureds, as their respective interests may appear; (c) provide
that all insurance proceeds for losses shall be adjusted by Mortgagor, subject
to the approval of Mortgagee; (d) except in the case of public liability
insurance, include waivers by the insurer of all rights of subrogation against
any named insured and (if obtainable) all claims for insurance premiums against
Mortgagor and Mortgagee, and be payable (without contribution if obtainable) to
Mortgagee; (e) provide that any proceeds for losses be payable to Mortgagee; (f)
provide that no change in coverage thereof shall be effective until at least
thirty (30) days after receipt of written notice thereof by Mortgagee; and (g)
be reasonably satisfactory in all other respects to Mortgagee. Any insurance may
be evidenced by blanket insurance policies covering the mortgaged property and
other assets of Mortgagor provided that any such policies shall specify that
portion of the total coverage that is allocated for the mortgaged property and
shall, in all other respects, comply with the requirements hereof. Mortgagor
will deliver to Mortgagee (a) the original of all insurance policies (or, in the
case of blanket policies, certificates thereof), together with evidence as to
the payment of all premiums then due thereon, (b) at least thirty (30) days
prior to the expiration of such policy, renewal policies (or, in the case of
renewal blanket policies, certificates thereof), together with evidence as to
the payment of all premiums then due thereon, and (c) promptly upon request by
Mortgagee, a certificate of Mortgagor stating the particulars (including policy
numbers, amounts and expiration dates) as to all such insurance policies and
certifying that the same are in full force and effect and comply with the
requirements hereof, together with evidence as to the payment of all premiums
then due thereon. Mortgagor will not, without the written consent of Mortgagee,
pledge or hypothecate or sell, or assign or transfer its interest in any such
insurance or in any rights to cancel such insurance or to obtain the return of
the unearned premiums therefor.
All insurance proceeds received or made available from insurance on
account of any damage to or destruction of the mortgaged property shall be
applied or dealt with by Mortgagee, at its election, as follows:
A. All such proceeds received by Mortgagee on account of any damage or
destruction may be paid from time to time as restoration progresses
either: (i) to Mortgagor as reimbursement for the cost of
restoration; or (ii) to any other person who shall have performed
labor or services or furnished materials or other property in
connection with restoration; but in each case only upon the written
request of Mortgagor, accompanied by evidence satisfactory to
Mortgagee that the sum requested has been paid by Mortgagor or is
then due and payable to such person and is a proper item of such
costs.
B. All such proceeds received by Mortgagee on account of damage or
destruction may be applied to the repayment of the indebtedness
secured hereby, in full or in part. The balance, if any, of such
proceeds remaining after such repayment shall, if no default exists,
be paid over or assigned to Mortgagor or as it may direct.
5. To first obtain the written consent of Mortgagee, such consent to be
granted or withheld at the sole discretion of Mortgagee, before (a) removing or
demolishing any building, structure or other improvement now existing or
hereafter erected on the premises, (b) altering the arrangement, design or
structural character thereof, (c) making any exposure of the interior of such
structure or building to the elements, (d) conveying or transferring, allowing
to be assigned or transferred or contracting to sell Mortgagor's fee simple
interest or estate in and to the Property or any portion thereof, voluntarily or
by operation of law, (e) selling or leasing all or any portion of the Property,
or (f) creating or suffering any additional mortgages, liens or encumbrances on
the Property.
6. To maintain the premises in good condition and repair, including but
not limited to the making of such repairs as Mortgagee may from time to time
determine to be necessary for the preservation of the premises and to not commit
nor permit any waste thereof.
7. To comply with all laws, ordinances, regulations, covenants,
conditions, restrictions, permits and licenses affecting the premises, and not
to suffer or permit any violation thereof.
8. If Mortgagor fails to pay any claim, lien or encumbrance which is
superior to this mortgage within any applicable grace period, or bond or
otherwise remove same as a lien on the property, or fails to pay when due, any
tax or assessment or insurance premium, or to keep the premises in repair, or
shall commit or permit waste, or if there be commenced any action or proceeding
affecting the premises or the interest of Mortgagee therein, including but not
limited to eminent domain or bankruptcy or reorganization proceedings, then
Mortgagee, at its option, may pay any such claim, lien, encumbrance, tax,
assessment or premium, with right of subrogation thereunder, may make such
repairs and take such steps as it deems advisable to prevent or cure such waste,
and may appear in any such action or proceeding and retain counsel therein, and
take such action therein as Mortgagee deems advisable, and for any of such
purposes Mortgagee may advance such sums of money, including all costs,
reasonable attorneys' fees and other items of expense as it deems necessary.
Mortgagee shall be the sole judge of the legality, validity and priority of any
such claim, lien, encumbrance, tax, assessment and premium, and of the amount
necessary to be paid in satisfaction thereof. Mortgagee shall not be held
accountable for any delay in making any such payment, which delay may result in
any additional interest, costs, charges or expenses otherwise.
9. Mortgagor will pay to Mortgagee, immediately and without demand, all
sums of money advanced by Mortgagee pursuant to this mortgage, including all
costs, reasonable attorneys' fees and other items expense, together with
interest on each such advance at the default rate of interest per annum provided
in the promissory note secured hereby, and all such sums and interest thereon
shall be secured hereby.
10. All sums of money secured hereby shall be payable without any
relief whatever from any valuation or appraisement laws.
11. If Mortgagor shall fail to pay any installment due on said note or
any part thereof within ten (10) days from the date when it is due, or fail to
pay when due any other sum secured hereby without notice or demand, which are
hereby expressly waived, or if Mortgagor shall fail in the performance of any of
Mortgagor's obligations, covenants or agreements hereunder or under any other
document evidencing or securing the note secured hereby, then all of the
indebtedness secured hereby shall become and be immediately due and payable at
the option of Mortgagee, in which event Mortgagee may avail itself of any or all
rights and remedies, at law or in equity, and this mortgagee may be foreclosed
with all rights and remedies afforded by the laws of Florida and Mortgagor shall
pay all costs, charges and expenses thereof, including a reasonable attorneys'
fee, whether prior to or after final judgment.
12. If default beyond any applicable grace period be made in payment of
any indebtedness secured hereby, or in performance of any of Mortgagor's
obligations, covenants or agreements hereunder:
A. Mortgagee is authorized at any time, without notice, in its sole
discretion to enter upon and take possession of the premises or any
part thereof, to perform any acts Mortgagee deems necessary or
proper to conserve the security and to collect and receive all
rents, issues and profits thereof, including those past due as well
as those accruing thereafter; and,
B. Mortgagee shall be entitled, as a manner of strict right and without
regard to the value or occupancy of the security, to have a receiver
appointed to enter upon and take possession of the premises,
complete construction of any partially completed improvements,
operate the premises, collect the rents and profits therefrom and
apply the same as the court may direct, such receiver to have all
the rights and powers permitted under the laws of Florida.
In either case, Mortgagee or the receiver may also take possession of,
and for these purposes use, any and all personal property contained in the
premises and used by Mortgagor in the rental or leasing of all or any part
thereof. The expense (including receiver's fees, counsel fees, costs and agent's
compensation) incurred pursuant to the powers herein contained shall be secured
hereby. Mortgagee shall (after payment of all costs and expenses incurred) apply
such rents, issues and profits received by it on the indebtedness secured hereby
in such order as Mortgagee determines. The right to enter and take possession,
to manage and operate the same 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 exercise concurrently
therewith or independently thereof. Mortgagee shall be liable to account only
for such rents, issues and profits actually received by Mortgagee.
13. If the indebtedness secured hereby is now or hereafter further
secured by chattel mortgages, security interests, pledges, contracts of
guaranty, assignments or leases, or other securities, or if the premises hereby
encumbered consist of more than one parcel, Mortgagee may at its option exhaust
any one or more of said securities and security hereunder, or such parcels of
the security hereunder, either concurrently or independently, and in such order
as it may determine. A default by Mortgagor, or any guarantor of the loan
evidenced by the promissory note secured hereby, under any collateral security
documents securing repayment of the note or any such guaranty shall be a default
hereunder.
14. Mortgagee may, at its option, from time to time before full payment
of all indebtedness secured hereby, make future advances to Mortgagor (including
advances in excess of the face amount of the note initially secured hereby),
provided that such advances are made within twenty (20) years from the date
hereof and that the total principal secured hereby and remaining unpaid,
including any such future advances, shall not at any time exceed FIVE MILLION
AND NO/100 DOLLARS ($5,000,000.00). Mortgagor shall execute and deliver to
Mortgagee a note evidencing each and every such future advance which Mortgagee
may make, above the face amount of the note initially secured hereby and such
other documents as Mortgagee may require to reflect that each such note is
secured hereby, such note(s) to be payable on or before maturity of the
indebtedness secured hereby or as it may be extended, and to contain such terms
as Mortgagee shall require. Mortgagor shall pay all such future advances with
interest provided therefor, and the same, and each note evidencing the same,
shall be secured hereby. All provisions of this mortgage shall apply to each
future advance as well as to all other indebtedness secured hereby. Nothing
herein contained however, shall limit the amount secured by this mortgage if
such amount is increased by advances made by Mortgagee, as herein elsewhere
provided for, to protect the security or to complete construction of any
improvements. Nothing herein contained shall obligate Mortgagee to make any such
future advances and Mortgagor shall have no right to require same. The word
"Mortgagor" as used in this paragraph, includes any successor in ownership of
the premises who acquires title subject to the lien on this mortgage.
15. No delay by Mortgagee in exercising any right or remedy hereunder,
or otherwise afforded by law, shall operate as a waiver thereof or preclude the
exercise thereof during the continuance of any default hereunder. No waiver by
Mortgagee of any default shall constitute a waiver of or consent to subsequent
defaults. No failure of Mortgagee to exercise any option herein given to
accelerate maturity of the debt hereby secured, no forbearance by Mortgagee
before or after the exercise of such options and no withdrawal or abandonment of
foreclosure proceedings by Mortgagee shall be taken or construed as a waiver of
its right to exercise such option or to accelerate maturity of the debt hereby
secured by reason of any past, present or future default on the part of
Mortgagor; and the procurement of insurance or the payment of taxes or other
liens or charges by Mortgagee shall not be taken or construed as a waiver of its
right to accelerate the maturity of the debt hereby secured.
16. Without affecting the liability of Mortgagor or any other person
(except any person expressly released in writing) for payment of any
indebtedness secured hereby or for performance of any obligation contained
herein, without affecting the rights of Mortgagee with respect to any security
not expressly released in writing, and without affecting the priority of the
lien hereof as to any inferior liens or interests, Mortgagee may, at any time
and from time to time, either before or after the maturity of said note, and
without notice or consent:
A. Release any person liable for payment of all or any part of the
indebtedness, or for performance of any obligation.
B. Make any agreement extending the time or otherwise altering the
terms of payment of all or any part of the indebtedness, with or
without changing the rate of interest, or modifying or waiving any
obligation, or subordinating, modifying or otherwise dealing with
the lien or charge hereof.
C. Exercise or refrain from exercising or waive any right Mortgagee may
have.
D. Accept additional security of any kind.
E. Release or otherwise deal with any property, real or personal,
securing the indebtedness, including all or any part of the property
mortgaged hereby.
F. Release portions of the property encumbered hereby from the lien
hereof with or without payment and on such terms and for such
considerations as it may require.
17. Any agreement hereafter made by Mortgagor and Mortgagee pursuant to
this mortgage including extensions or modifications hereof or of the note
secured hereby shall be superior to the rights of the holder of any intervening
or subordinate lien or encumbrance.
18. The filing by or against Mortgagor, or any guarantor of payment of
the indebtedness evidenced by said promissory note and secured by this mortgage,
of a petition in bankruptcy, or the insolvency of Mortgagor, or any guarantor,
or the making by Mortgagor or any guarantor of an assignment for the benefit of
creditors, or the filing of a petition for relief under the bankruptcy laws, or
the appointment of a receiver or a trustee for Mortgagor or the property
encumbered hereby shall constitute a default hereunder which shall authorize the
holder hereof, at its option, to immediately accelerate maturity of all
indebtedness secured hereby and exercise all remedies available to it hereunder.
19. Mortgagee shall be subrogated to the rights of the holder of any
existing mortgage or other lien encumbering the property hereby encumbered which
is satisfied by application of any portion of the proceeds of the loan evidenced
by the note secured hereby as though said mortgage or other lien had been
purchased by Mortgagee by assignment to Mortgagee even though said mortgage or
lien has been satisfied of record and the note thereby secured canceled.
20. The Mortgagor hereby represents and warrants to the best of its
knowledge and belief: (i) that the location, construction, occupancy, operation
and use of the Property do not violate any applicable law, statute, ordinance,
rule, regulation, order or determination of any governmental authority or any
board of fire underwriters (or other body exercising similar functions), or any
restrictive covenant or deed restriction (recorded or otherwise affecting the
Property, including without limitation all applicable zoning ordinances and
building codes, flood disaster laws and health and environmental laws and
regulations (hereinafter sometimes collectively called the "Applicable
Regulations"); and (ii) without limitation of (i) above, that the Property and
the Mortgagor are not in violation of or subject to any existing, pending or
threatened investigation or inquiry by any governmental authority or to any
remedial obligations under any Applicable Regulations pertaining to health or
the environment (hereinafter sometimes collectively called the "Applicable
Environmental Laws"), including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA/XXXX") and the
Resource Conservation and Recovery Act of 1976 ("RCRA"), and this representation
and warranty would continue to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the Property; (iii) that the Mortgagor has
not obtained and is not required to obtain any permits, licenses or similar
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures and equipment forming a part of the Property by reason of any
Applicable Environmental Laws; and (iv) that the use which the Mortgagor makes
and intends to make of the Property will not result in the disposal or other
release of any hazardous substance or solid waste on or to the Property. The
terms (as used in this Mortgage) "hazardous substance" and "release" shall have
the meanings specified in CERCLA/XXXX, and the terms "solid waste" and
"disposal" or "disposed" shall have the meanings specified in RCRA; provided, in
the event either CERCLA/XXXX or RCRA is amended so as to broaden the meaning of
any term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment and provided further, to the extent that the
laws of the State of Florida establish a meaning for "hazardous substance,"
"release," solid waste" or "disposal" which is broader than that specified in
either CERCLA/XXXX or RCRA, such broader meaning shall apply.
21. The covenants and agreements herein contained shall bind and the
benefits and advantages shall inure to the benefit of the respective successors
and assigns of the parties hereto. Wherever used, the singular number shall
include the plural, and the plural the singular, and the use of any gender shall
be applicable to all genders. All covenants, agreements and undertakings shall
be joint and several. All references contained herein to "legal fees," "counsel
fees" or "attorneys' fees" and "costs" shall be deemed to include such fees and
costs incurred by Mortgagee whether or not suit is instituted, and, if
instituted, shall include such fees and costs incurred at the trial level and
all levels of appeal.
22. In addition to any notice requirements contained elsewhere in this
mortgage or in any of the other loan documents, Mortgagor shall notify Mortgagee
promptly of the occurrence of any of the following:
A. a fire or other casualty causing damage to the Property;
B. receipt of notice of condemnation of the Mortgaged Property;
C. receipt of notice from any governmental or quasi-governmental
authority relating to the development, structure, use or occupancy
of the Mortgaged Property;
D. substantial change in the occupancy of the Property; or
E. commencement of any litigation affecting the Property.
23. Mortgagee, at its option, after giving notice to Mortgagor, if
required and the expiration of the applicable grace period, if any, may pay any
claim, lien, encumbrance, tax, assessment or premium, with right of subrogation
hereunder, now or hereafter affecting the mortgaged property or any portion
thereof and merge or consolidate the effect of such prior item with the lien
hereunder.
24. No payee or the holder of the note or notes secured hereby shall
ever be entitled to receive, collect, or apply, as interest on the obligation,
any amount in excess of the legally permitted maximum interest rate per annum
under applicable law, and in the event the payee or any holder thereof ever
receives, collects or applies as interest any such excess, such amount which
would be excessive interest shall be applied to the reduction of the principal
debt; and, if the principal debt is paid in full, any remaining excess shall
forthwith be paid to Mortgagor. In determining whether or not the interest paid
or payable under any specific contingency exceeds the highest lawful rate,
Mortgagor and Mortgagee shall to the maximum extent permitted under applicable
law (a) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) "spread" the total amount of interest throughout the entire
contemplated term of the obligation so that the interest rate is uniform
throughout the entire term of the obligation.
25. Mortgagor hereby agrees that this mortgage is to be construed and
enforced according to the laws of the State of Florida.
26. Time is of the essence in all matters herein.
27. This instrument constitutes a security agreement under the
provisions of the Florida Uniform Commercial Code with respect to any personal
property now or hereafter located on the mortgaged premises and a security
interest therein is hereby created. With respect to such personalty Mortgagee
shall have all the rights and remedies afforded to a secured party by law.
Mortgagor hereby agrees to execute and deliver on demand and hereby irrevocably
constitutes and appoints Mortgagee the attorney-in-fact of Mortgagor, to
execute, deliver, and if appropriate, to file with the appropriate filing
officer or office such security agreements, financing statements, continuation
statements or other instruments as Mortgagee may request or require in order to
impose, perfect or continue the perfection of, the lien or security interest
created hereby. Upon the occurrence of any default hereunder, Mortgagee shall
have the right to cause any of the Mortgaged property which is personal property
and subject to the security interest of Mortgagee hereunder to be sold at any
one or more public or private sales as permitted by applicable law, and
Mortgagee shall further have all other rights and remedies, whether at law, in
equity, or by statute, as are available to secured creditors under applicable
law. Any such disposition may be conducted by an employee or agent of Mortgagee.
Any person, including both Mortgagor and Mortgagee, shall be eligible to
purchase any part or all of such property at any such disposition.
Expenses of retaking, holding, preparing for sale, selling or the like
shall be borne by Mortgagor and shall include Mortgagee's attorneys' fees and
legal expenses. Mortgagor upon demand of Mortgagee shall assemble such personal
property and make it available to Mortgagee at the Premises, or a place which is
hereby deemed to be reasonably convenient to Mortgagee and Mortgagor. Mortgagee
shall give Mortgagor at least five (5) days prior written notice of the time of
or after which any private sale or any other intended disposition is to be made,
and if such notice is sent to Mortgagor, as the same is provided for the mailing
of notices herein, it is hereby deemed that such notice shall be and is
reasonable notice to Mortgagor.
28. Mortgagor will pay or reimburse Mortgagee for all reasonable
attorneys' fees, costs and expenses incurred by Mortgagee in any action,
proceeding or dispute of any kind in which the Mortgagee is made a party, or
appears as a party either as plaintiff or defendant, affecting the promissory
note, Mortgage, Mortgagor, or Mortgaged Property, including but not limited to
the foreclosure of this mortgage, any condemnation action involving the
Mortgaged Property, or any action to protect the security hereof; and any such
amounts paid by this mortgage.
29. Any contracts or leases which may be entered into by mortgagor for
the sale or lease of the Property or any portion thereof will be assigned to
Mortgagee as collateral security for the loan evidenced by note, and a security
interest therein is hereby created.
A. All of the existing and future rents, royalties, income and profits
of the Mortgaged Property that arise from its use or occupancy are
hereby absolutely and presently assigned to the Mortgagee. However,
until the Mortgagor is in default under this Mortgage, the Mortgagor
will have a license to collect and receive those rents, royalties,
income and profits. Upon any default by the Mortgagor, the Mortgagee
may terminate the Mortgagor's license in its discretion at any time
without notice to the Mortgagor and may thereafter collect the
rents, royalties, income or profits itself or by an agent or
receiver. No action taken by the Mortgagee to collect any rents,
royalties, income or profits will make the Mortgagee a
"mortgagee-in-possession" of the Mortgaged property, unless the
Mortgagee personally or by agent enters into actual possession of
the Mortgaged Property. Possession by a court-appointed receiver
will not be considered possession by the Mortgagee. All rents,
royalties, income and profits collected by the Mortgagee or a
receiver will be applied first to pay all expenses of collection,
and then to the payment of all costs of operation and management of
the Mortgaged Property, and then to the payment of the indebtedness
and obligations secured by this Mortgage in whatever order the
Mortgagee directs in its absolute discretion and without regard to
the adequacy of its security.
B. If required by the Mortgagee, the Mortgagor will not execute any
leases or occupancy agreements affecting any of the Mortgaged
Property except on a form approved by Mortgagee.
C. Without the prior written consent of the Mortgagee, the Mortgagor
shall not accept prepayments of rent exceeding one month under any
leases or occupancy agreements affecting any of the Mortgaged
Property, nor modify or amend any such leases or occupancy
agreements, nor in any manner impair the Mortgagee's interest in the
rents, royalties, income and profits of the Mortgaged Property. The
Mortgagor will perform all covenants of the lessor under any such
leases or occupancy agreements. Upon the Mortgagee's request, the
Mortgagor will execute and deliver to the Mortgagee for recordation
an assignment of leases on the Mortgagee's form.
D. If required by the Mortgagee, each lease or occupancy agreement
affecting any of the Mortgaged Property must provide, in a manner
approved by the Mortgagee, that the tenant will recognize as its
lessor any person succeeding to the interest of the Mortgagor upon
any foreclosure of this Mortgage.
30. WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF, THE PARTIES MUTUALLY
AGREE THAT NEITHER PARTY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL
REPRESENTATIVE OF THE PARTIES (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE
"PARTIES") SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS MORTGAGE OR ANY
INSTRUMENT EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS AND OTHER
OBLIGATIONS EVIDENCED HEREBY, ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER
COLLATERAL FOR THE INDEBTEDNESS EVIDENCED HEREBY OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE PARTIES
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED,
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS
OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES. THE WAIVER
CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND
SHALL BE SUBJECT TO NO EXCEPTIONS. BANK HAS IN NO WAY AGREED WITH OR REPRESENTED
TO ANY OF THE PARTIES THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the undersigned Mortgagor has caused this
instrument to be duly executed and delivered on the day and year first above
written.
Signed, Sealed and Delivered CERTIFIED DIABETIC SERVICES, INC.,
in the Presence of: a Delaware corporation
/s/ C. Xxxxxxx Xxxx, Xx. By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- ------------------------------
Print Name: C. Xxxxxxx Xxxx, Xx. XXXXX X. XXXXXXX,
President
/s/ Xxxxx X. Xxxxxx
--------------------------------- (Corporate Seal)
Print Name: X. Xxxxxx
STATE OF FLORIDA
COUNTY OF XXXXXXX
ACKNOWLEDGED before me on this 17th day of December 1997, by XXXXX X.
XXXXXXX, (_X_) who is personally known to me or (__) who produced his driver's
license as identification, as President of CERTIFIED DIABETIC SERVICES, INC.,
a Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
Print Name: X. Xxxxxx
State of Florida at Large
My Commission Expires:
Xxxxx X. Xxxxxx
My Commission #CC522234
EXPIRES: January 2, 2000
Bonded thru Notary Public Underwriters
(Notary Seal)
Exhibit "A"
(Attach Legal Description of the Property)
Xxxx 00 xxx 00, XXXX XXXXXX XXXXXXXXXX XXXX, according to the map or
plat thereof as recorded in Plat Book 10, at Page 114, of the Public
Records of Xxxxxxx County, Florida.
