Exhibit 10.152
Resort Finance/Bluegreen
Vacations Unlimited, Inc.
01/07/05
This Instrument Prepared by
(with the assistance of Florida
counsel and after recording,
please mail to):
Xxxxxx X. Xxxxxxx
Xxxxx & XxXxxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
CONSTRUCTION MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
THIS CONSTRUCTION MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
("Mortgage"), dated as of January 10, 2005, made and executed by BLUEGREEN
VACATIONS UNLIMITED, INC., a Florida corporation ("Borrower"), in favor of
RESORT FINANCE LLC, a Massachusetts limited liability company ("Mortgagee");
WITNESSETH:
WHEREAS by reason of that certain loan (the "Loan") being made by
Mortgagee pursuant to that certain Loan Agreement dated even date herewith
between Borrower and Mortgagee (the "Loan Agreement"), the provisions of which
are incorporated herein by reference and made a part hereof, Borrower is justly
indebted to Mortgagee up to the principal sum of Fifty Million and No/100
Dollars ($50,000,000.00), as evidenced by a revolving promissory note (the
"Note") executed on behalf of Borrower, and bearing interest (the rate of which
may change from time to time if, as, and when the LIBOR rate, as defined in the
Note, changes) and repayable on the terms set forth in the Note, and which shall
be due and payable in full on the Maturity Date (as that term is defined in the
Note, as the same may be accelerated pursuant to the terms of the Loan
Agreement, whereby Borrower promises to pay the aforesaid principal sum, or so
much thereof as shall from time to time be disbursed to or for the benefit of
Borrower, pursuant to the Loan Agreement. Notwithstanding anything to the
contrary contained herein, Mortgagee agrees to limit its right of recovery under
this Mortgage for repayment of principal to Fourteen Million Six Hundred
Sixty-Two Thousand Five Hundred Forty-Two and No/100 Dollars ($14,662,542.00).
Accordingly, documentary stamp tax and intangible taxes are calculated based
upon the principal amount of Fourteen Million Six Hundred Sixty-Two Thousand
Five Hundred Forty-Two and No/100 Dollars ($14,662,542.00);
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NOW, THEREFORE, in order to secure the payment of the indebtedness
evidenced by the Note and the payment of all amounts due under and the
performance and observance of all covenants and conditions contained in this
Mortgage, the Note, the Loan Agreement, any and all other mortgages, security
agreements, assignment of leases and rents, guaranties, indemnity agreements,
letters of credit and any other documents and instruments now or hereafter
executed by Borrower to evidence or secure the payment of all or any portion of
the indebtedness under the Note and any and all renewals, extensions, amendments
and replacements of this Mortgage, the Note and any such other documents and
instruments (the Note, this Mortgage, such other documents and instruments now
or hereafter executed and delivered by Borrower to Mortgagee pursuant to the
Loan Agreement in connection with the loan evidenced by the Note, and any and
all amendments, renewals, extensions and replacements hereof and thereof, being
sometimes herein referred to collectively as the "Loan Documents" and
individually as a "Loan Document", and all indebtedness and liabilities secured
hereby being hereinafter sometimes referred to as "Borrower's Liabilities"),
Borrower does hereby mortgage, assign, pledge and collaterally assign to
Mortgagee all of Borrower's right, title and interest, if any, in, to and under
the following described property, subject to the terms and conditions herein
specified:
(A) The land legally described in Exhibit A attached hereto and made a
part hereof (the "Land");
(B) All and whatever right, title and interest Borrower has in and to all
buildings constructed (or being constructed) on the Land (the "Buildings") and
all other structures, improvements and fixtures of every kind or nature now or
hereafter situated on the Land, and all machinery, appliances, equipment,
furniture and all other personal property of every kind or nature 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, improvements or fixtures now
or hereafter located or to be located on the Land, or in connection with any
construction being conducted or which may be conducted thereon, and all
extensions, additions, improvements, substitutions and replacements to any of
the foregoing (collectively, the "Improvements");
(C) All building materials and goods which are procured or to be procured
for use on or in connection with the Improvements or the construction of
additional Improvements, whether or not such materials and goods have been
delivered to the Land ("Materials");
(D) To the extent assignable without the consent of another party, all:
(i) unexpired claims, warranties, guaranties and sureties in connection with the
construction, furnishing and equipping of the Mortgaged Property (hereinafter
defined), (ii) all plans, specifications, architectural renderings, drawings,
(iii) licenses, permits, certificates of occupancy, (iv) soil test reports,
other reports of examinations or analyses of the Land, Buildings or other
Improvements, (v) contracts for services to be rendered to Borrower or otherwise
in connection with the Improvements, (vi) all other property, contracts,
including, without limitation, general contracts, subcontracts and material
supply contracts relating to the construction of the Buildings and other
Improvements relating thereto, including tenant improvements, reports, proposals
and other materials in any way relating to the Land or the Improvements or the
construction of additional Improvements, (vii) any and all other intangible
property used solely in connection with or otherwise related to the acquisition,
development, and marketing of the Mortgaged Property, and
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(viii) all trade styles, trademarks and service marks used in connection
therewith (other than the name Bluegreen or Bluegreen Vacation Club or any
variation thereof);
(E) All easements, including, but not limited to, all easements and other
rights for the benefit of, and running with, the Land, tenements, rights-of-way,
vaults, gores of land, streets, ways, alleys, passages, sewer rights, water
courses, water rights and powers and appurtenances in any way belonging,
relating or appertaining to any of the Land or Improvements, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired ("Appurtenances");
(F) To the extent payable to Mortgagee hereunder, all judgments, insurance
proceeds, awards of damages and settlements which may result from any damage to
all or any portion of the Land, Improvements or Appurtenances or any part
thereof or to any rights appurtenant thereto;
(G) To the extent payable to Mortgagee hereunder, all compensation,
awards, damages, claims, rights of action and proceeds of or on account of (i)
any damage or taking, pursuant to the power of eminent domain, of the Land,
Improvements, Appurtenances or Materials or any part thereof, or (ii) the
alteration of the grade of any street or highway abutting the Land, and, except
as otherwise provided herein, Mortgagee is hereby authorized to collect and
receive said awards and proceeds and to give proper receipts and acquittances
therefor and, except as otherwise provided herein, to apply the same toward the
payment of the indebtedness and other sums secured hereby;
(H) All contract rights, general intangibles, actions and rights in
action, including, without limitation, to the extent payable to Mortgagee
hereunder all rights to insurance proceeds and unearned premiums arising from or
relating to damage to the Land, Improvements, Appurtenances or Materials;
(I) All proceeds, products, replacements, additions, substitutions,
renewals and accessions of and to the Land, Improvements, Appurtenances or
Materials;
(J) All rents, issues, profits, income and other benefits now or hereafter
arising from or in respect of the Land, Improvements or Appurtenances (the
"Rents"), it being intended that this granting clause shall constitute an
absolute and present assignment of the Rents pledged on a parity with the Land
and Improvements and not secondarily;
(K) Any and all leases, licenses and other occupancy agreements now or
hereafter affecting the Land, Improvements, or Appurtenances, together with all
security therefor and guaranties thereof and all monies payable thereunder, and
all books and records owned by Borrower which contain evidence of payments made
under the leases and all security given therefor, (collectively, the "Leases");
(L) Any and all after-acquired right, title or interest of Borrower in and
to any of the property described in the preceding granting clauses; and
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(M) To the extent payable to Mortgagee hereunder, the proceeds from the
sale, transfer, pledge or other disposition of any or all of the property
described in the preceding grant clauses;
(All of the property described in the preceding granting clauses (A) through (M)
in this granting paragraph, together with all real and personal, tangible and
intangible property pledged in, or to which a security interest attached
pursuant to, any of the Loan Documents, being sometimes referred to herein
collectively as the "Mortgaged Property");
TO HAVE AND TO HOLD the same unto the Mortgagee and its successors and
assigns forever, for the purposes and uses herein set forth subject, however, to
the Permitted Encumbrances (as hereinafter defined);
PROVIDED, HOWEVER, that if the Borrower shall pay the principal and all
interest as provided in the Note, and shall pay all other sums herein provided
for, or secured hereby, then this Mortgage shall be released without charge to
the Borrower, and Mortgagee shall execute any and all documents reasonably
requested by Mortgagor, in recordable form to so evidence such release,
otherwise to remain in full force and effect.
BORROWER FURTHER COVENANTS and agrees as follows:
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COVENANTS, WARRANTIES AND REPRESENTATIONS
1.1 Performance under Note, Mortgage and other Loan Documents. Borrower
shall perform, observe and comply with or cause to be performed, observed and
complied with in a complete and timely manner all provisions hereof and of the
Note, every other Loan Document, and will promptly pay or cause to be paid to
Mortgagee when due the principal with interest thereon and all other sums
required to be paid by Borrower pursuant to the Note, this Mortgage, and every
other Loan Document. For purposes herein project related documents shall mean
the Plans and Specifications, Project Commitment and Project Documents ("Project
Related Documents).
1.2 Compliance with Laws, Insurance and Other Requirements. Borrower
covenants that the Land and the Improvements and the use thereof shall, upon
completion thereof, comply with, and will during the full term of this Mortgage,
subject to the right to contest in accordance with the penultimate sentence of
this Section 1.2, continue to comply with, all applicable restrictive covenants,
zoning and subdivision ordinances and building codes, licenses, health,
Environmental Laws (as hereinafter defined), and civil rights laws (including,
but not limited to, The Americans With Disabilities Act of 1990), and
regulations and all other applicable laws, ordinances, rules and regulations,
and shall observe and comply with all conditions and requirements necessary to
maintain in force the insurance required under Section 1.6 hereof, and to
preserve and extend any and all rights, licenses, permits (including, but not
limited to, zoning variances, special exceptions, and nonconforming uses),
privileges, franchises, and concessions which are applicable to the Mortgaged
Property and necessary for the operation of the Mortgaged Property as then being
operated or which have been granted to or contracted for by Borrower in
connection with any existing or presently contemplated use of the Mortgaged
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Property. In the event that any building or other improvement on the Mortgaged
Property must be altered or removed to enable Borrower to comply with the
foregoing provisions of this Section 1.2, Borrower shall not commence any such
alterations or removals without Mortgagee's prior approval of the need therefor
and the plans and specifications pertaining thereto excepting only such
alterations or removals as may be required urgently in connection with an
emergency affecting the Mortgaged Property, with respect to which Borrower shall
do what is reasonably required under the circumstances and notify Mortgagee
thereof promptly thereafter. After such approval, which shall not be
unreasonably withheld or delayed, Borrower, at its sole cost and expense, shall
effect the alterations or removal so required and approved by Mortgagee. Except
as otherwise contemplated under the Project Related Documents and Loan
Documents, Borrower shall not by act or omission permit any building or other
improvement on land not subject to the lien of this Mortgage to rely on the Land
or any part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Borrower hereby assigns to Mortgagee any and all
rights to give consent for all or any portion of the Land or any interest
therein to be so used. Similarly, no Building or other Improvement on the Land
shall rely on any land not subject to the lien of this Mortgage or any interest
therein to fulfill any governmental or municipal requirement, except as
contemplated by the Project Related Documents and OE Agreement. Any act or
omission by Borrower which would result in a violation of any of the provisions
of this Section 1.2 shall be void. If any federal, state or other governmental
body or any court issues any notice or order to the effect that the Mortgaged
Property or any part thereof is not in compliance with any such covenant,
ordinance, code, law or regulation, Borrower will promptly provide Mortgagee
with a copy of such notice or order and will immediately commence and diligently
perform all such actions as are necessary to comply therewith or otherwise
correct such non-compliance. Borrower may in good faith, by appropriate
proceedings timely commenced and thereafter diligently pursued, contest the
validity or applicability of any such notice or order of non-compliance or the
underlying covenant, ordinance, code, law or regulation; provided, that Borrower
complies with all applicable laws with respect to any such contest. Borrower
agrees, with respect to the construction, operation and leasing of the Land and
Improvements, that persons otherwise entitled to any right, benefit, facility or
privilege shall not be denied such right, benefit, facility or privilege in any
manner or for any purpose nor be discriminated against on the basis of race,
religion, marital status, age, color, sex, disability, national origin or
ancestry.
1.3 Taxes, Assessments and Other Charges. Borrower shall pay, or cause to
be paid by the party responsible therefor under any Lease, promptly when due all
taxes, assessments, rates, dues, charges, fees, levies, fines, impositions,
liabilities, obligations, liens and encumbrances of every kind and nature
whatsoever now or hereafter imposed, levied or assessed upon or against the
Mortgaged Property or any part thereof, or upon or against this Mortgage or
Borrower's Liabilities or upon or against the interest of Mortgagee in the
Mortgaged Property, as well as all taxes, assessments and other governmental
charges levied and imposed by the United States of America or any state, county,
municipality or other taxing authority upon or in respect of the Mortgaged
Property or any part thereof. Upon Mortgagee's request, Borrower will promptly
file, if it has not theretofore filed, such petition, application or other
instrument as is necessary to cause the Land and Improvements to be taxed as a
separate parcel or parcels which include no property not a part of the Mortgaged
Property. Subject to the provisions of Section 1.4 hereof, nothing in this
Section 1.3 shall require Borrower to pay any income, franchise or excise tax
imposed upon Mortgagee. Borrower shall pay when due all charges incurred for the
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benefit of the Mortgaged Property (and not charged directly to tenants of the
Mortgaged Property) for utilities, such as, but not limited to, energy, fuel,
gas, electricity, water, sewer, and garbage removal, whether or not such charges
are liens against the Mortgaged Property.
1.4 Taxes Affecting Mortgagee's Interest. If any state, federal, county,
municipal or other governmental law, order, rule or regulation, which becomes
effective subsequent to the date hereof, in any manner changes or modifies
existing laws governing the taxation of mortgages or debts secured by mortgages,
or the manner of collecting taxes, so as to impose on Mortgagee a tax by reason
of its ownership of any or all of the Loan Documents or measured by the
principal amount of the Note, or which requires or has the practical effect of
requiring Mortgagee to pay any portion of the real estate taxes levied in
respect of the Mortgaged Property or to pay any tax levied in whole or in part
in substitution for real estate taxes, Borrower's Liabilities and all interest
accrued thereon shall, upon one hundred eighty (180) days' notice, become due
and payable forthwith at the option of Mortgagee, whether or not there shall
have occurred an Event of Default, but without any prepayment premium or
penalty, provided, however, that, if Borrower may, without violating or causing
a violation of such law, order, rule or regulation, pay such taxes or other sums
as are necessary to eliminate such adverse effect upon the rights of Mortgagee
and does pay such taxes or other sums when due, Mortgagee shall not elect to
declare due Borrower's Liabilities by reason of the provisions of this Section
1.4.
1.5 Mechanics' and Other Liens. Borrower shall not permit or suffer any
mechanic's, laborer's, materialman's, commercial real estate broker's, statutory
or other lien or encumbrance (other than any lien for taxes and assessments not
yet due) to be perfected upon or against the Mortgaged Property, except for
matters approved in writing by Mortgagee.
1.6 Insurance Required. Borrower shall, at its sole expense, obtain or
cause to be obtained and maintain for the benefit of Mortgagee, until Borrower's
Liabilities are paid in full, the insurance specified in the Loan Agreement. In
the event of the foreclosure of this Mortgage or any other transfer of title to
the Mortgaged Property in full or partial satisfaction of Borrower's
Liabilities, all right, title and interest of Borrower in and to all insurance
policies and renewals thereof then in force shall pass to the purchaser or
grantee.
1.7 Claims under Casualty Insurance. In the event of loss to or affecting
the Mortgaged Property in an amount likely to exceed Twenty-Five Thousand
Dollars ($25,000.00), Borrower will give immediate notice thereof to Mortgagee,
and Mortgagee may make proof of loss if not made promptly by Borrower (for which
purpose Borrower hereby irrevocably appoints Mortgagee as its attorney-in-fact).
Except as otherwise provided in the Project Related Documents, Mortgagee is
hereby authorized, if, at the time of such occurrence an Event of Default exists
and Mortgagee so elects by giving Borrower notice thereof within thirty (30)
days after being notified of such loss, to process, enforce, adjust or
compromise claims of any loss under any insurance policies covering or related
to the Mortgaged Property, and if Mortgagee is not so authorized or does not so
elect, Borrower shall do so, subject to Mortgagee's right of approval of any
proposed settlement of any such claim which shall not be unreasonably withheld
or delayed. Each insurance company is hereby authorized and directed to make
payment of all such loss proceeds in excess of Fifty Thousand Dollars
($50,000.00) directly to Mortgagee alone. After deducting from such insurance
proceeds any expenses incurred by Mortgagee in the collection and settlement
thereof, including without limitation reasonable attorneys' and
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adjusters' fees and charges, Mortgagee shall apply the net proceeds as specified
in Section 1.9 hereof. Mortgagee shall not be responsible for any failure to
collect any insurance proceeds due under the terms of any policy regardless of
the cause of such failure except in the event of Mortgagee's negligence or
willful misconduct.
1.8 Condemnation Awards. Except as otherwise provided in the Project
Related Documents, Mortgagee shall be entitled to all compensation, awards,
damages, claims, rights of action and proceeds of, or on account of, (i) any
damage or taking, pursuant to the power of eminent domain, of the Mortgaged
Property or any part thereof, (ii) damage to the Mortgaged Property by reason of
the taking, pursuant to the power of eminent domain, of other property, or (iii)
the alteration of the grade of any street or highway on or about the Mortgaged
Property. Mortgagee is hereby authorized, if at the time of such occurrence an
Event of Default exists and Mortgagee so elects, to commence, appear in and
prosecute in its own or Borrower's name any action or proceeding relating to any
such compensation, awards, damages, claims, rights of action and proceeds and to
settle or compromise any claim in connection therewith, and if Mortgagee does
not so elect, Borrower shall do so, subject to Mortgagee's right of approval of
any proposed settlement of any such claim. Borrower hereby irrevocably appoints
Mortgagee as its attorney-in-fact for the purposes set forth in the preceding
sentence. Mortgagee after deducting from such compensation, awards, damages,
claims, rights of action and proceeds all its expenses, including reasonable
attorneys' fees, shall apply such net proceeds as specified in Section 1.9
hereof. Borrower agrees to execute such further assignments of any compensation
awards, damages, claims, rights of action and proceeds as Mortgagee may
reasonably require.
1.9 Proceeds of Insurance and Eminent Domain. Except as otherwise
specified in the Project Related Documents, and at Mortgagee's election, to be
exercised by written notice to Borrower within ten (10) days following
Mortgagee's receipt in cash or the equivalent thereof of such insurance
proceeds, awards or other compensation as described in Sections 1.7 and 1.8
hereof (hereinafter generically referred to as "Proceeds"), the entire amount of
said Proceeds shall either (i) be applied to Borrower's Liabilities in such
order and manner as Mortgagee may elect, except that this option shall not be
exercised (A) with respect to any restoration reasonably estimated to cost less
than one hundred thousand dollars ($100,000.00), or (B) if the conditions
specified in the next sentence are satisfied, or (C) if such Proceeds pertain to
damage to Improvements subject to or governed by any of the Project Related
Documents or the Loan Document, or any other Lease and Borrower is legally
obligated under the applicable agreement pertaining thereto to make such
Proceeds available for restoration of the subject Improvements or (ii) be made
available to Borrower on the terms and conditions set forth in this Section 1.9
to finance the cost of restoration or repair of the Mortgaged Property with any
excess to be applied to Borrower's Liabilities. The conditions referred to in
clause (B) in the preceding sentence are as follows: (i) Borrower shall have
submitted to Mortgagee evidence reasonably satisfactory to Mortgagee that
complete restoration of the Mortgaged Property (or the portion thereof remaining
in the event the Proceeds result from a condemnation) (A) can be completed on or
before the Maturity Date, and (B) at a total cost not in excess of the amount of
Proceeds available for such restoration, or, if a deficiency shall exist,
Borrower shall have deposited the amount of such deficiency with Mortgagee
(which evidence shall include a certificate of an architect reasonably
acceptable to Mortgagee pertaining to time and cost to complete such
restoration), (ii) none of the Project Related Documents shall have been
terminated as a result of such casualty or taking, or be terminable by any party
thereto so long as Borrower is in the process of restoring the
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Mortgaged Property, and (iii) if the Proceeds result from a taking through
condemnation of a portion of the Mortgaged Property, the portion remaining, if
any, shall, in Mortgagee's reasonable judgment, be capable of being restored to
an economically viable property having the same use as existed prior to such
taking. If Mortgagee elects, or is obligated, to make Proceeds available for
restoration, the amount thereof which is to be made so available to Borrower,
together with any deposits made by Borrower hereunder, shall be held by
Mortgagee, or such other party as designated by Mortgagee, to be disbursed to
pay the cost of repair or restoration either, at Mortgagee's option, to Borrower
or directly to contractors and other persons entitled to payment all in
accordance with and subject to such conditions to disbursement as are
substantially the same as those specified in the Loan Agreement with respect to
disbursement of Loan proceeds. Mortgagee or such other depository may commingle
any such Proceeds held by it with its other general funds. Mortgagee, at
Borrower's written request, shall invest or authorize such other depository to
invest such Proceeds in a money market (or then comparable) interest bearing
account, or at Mortgagee's election, short term obligations of, or insured by,
the United States of America, the income from which, less any reasonable
investment charges, shall be added to such Proceeds and reported as income to
Borrower, and otherwise neither Mortgagee nor such other depository shall be
obligated to pay interest in respect of any such Proceeds held by it, and in no
event shall Borrower be entitled to a credit against any of Borrower's
Liabilities except and to the extent the funds are applied thereto pursuant to
this Section 1.9. The net proceeds of business interruption and rental insurance
shall be paid to Mortgagee for interest payments as and when due and shall
otherwise be paid to Mortgagor. Notwithstanding any other provision of this
Section 1.9, if an Event of Default shall be existing at the time of such
casualty, taking or other event or if an Event of Default occurs thereafter,
Mortgagee shall have the right to apply immediately all insurance proceeds,
awards or compensation to the payment of Borrower's Liabilities in such order
and manner as Mortgagee may determine. Mortgagee shall have the right at all
times to apply such net proceeds to the cure of any Event of Default or the
performance of any obligations of Borrower under the Loan Documents.
1.10 Tax and Insurance Deposits. Borrower shall, in order to secure the
performance and discharge of Borrower's obligations under Sections 1.3 and 1.6
hereof, but not in lieu of such performance, deposit with Mortgagee on the first
day of each calendar month throughout the term of this Mortgage, deposits, in
amounts set by Mortgagee from time to time by written notice to Borrower, in
order to accumulate funds sufficient to permit Mortgagee to pay all annual ad
valorem taxes, assessments and charges of the nature described in said Sections
1.3 and 1.6 hereof at least thirty (30) days prior to the date or dates on which
they shall become delinquent, or due and payable, as the case may be. Borrower
shall procure and deliver to Mortgagee when issued all statements or bills for
such obligations. Upon demand by Mortgagee, Borrower shall deliver to Mortgagee
such additional monies as are required to satisfy any deficiencies in the
amounts necessary to enable Mortgagee to pay such taxes, assessments and
insurance charges thirty (30) days prior to the date they become delinquent, or
due and payable, as the case may be. Mortgagee shall pay such taxes, assessments
and insurance charges as they become due to the extent of the funds on deposit
with Mortgagee from time to time and provided Borrower has delivered to
Mortgagee the statements or bills therefor. In making any such payments,
Mortgagee shall be entitled to rely on any xxxx issued in respect of any such
taxes, assessments or charges without inquiry into the validity, propriety or
amount thereof and whether delivered to Mortgagee by Borrower or otherwise
obtained by Mortgagee. Any deposits received pursuant to this Section 1.10 shall
not be, nor be deemed to be, trust funds, but may be commingled with the
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general funds of Mortgagee and Mortgagee shall have no obligation to pay
interest on amounts deposited with Mortgagee pursuant to this Section 1.10. If
any Event of Default occurs any part or all of the amounts then on deposit or
thereafter deposited with Mortgagee under this Section 1.10 may at Mortgagee's
option be applied to payment of Borrower's Liabilities in such order as
Mortgagee may determine. Upon assignment of this Mortgage, any funds on hand
with Mortgagee, pursuant to this Section 1.10, shall be turned over to the
assignee and, provided the assignee shall assume Mortgagee's responsibilities
with respect to such funds, any responsibility of Mortgagee with respect to such
funds shall terminate. As of the date hereof, Mortgagee has suspended the
application of this Section 1.10, however, Mortgagee may later reinstate and
suspend, the application of this Section 1.10 as often as it may determine, and
unless and until Mortgagee notifies Borrower that Mortgagee has determined,
based on what Mortgagee considers, in good faith, to be a materially adverse
change in the financial condition of Borrower or the Mortgaged Property, to
reinstate said requirement, the same shall be deemed so suspended by Mortgagee
as aforesaid.
1.11 Preservation, Restoration and Use of Mortgaged Property. Borrower
shall complete, within a reasonable time but in all events not later than
twenty-four (24) months from the date hereof, any building or buildings or other
improvements now or at any time in the process of being constructed by Borrower
upon the Land. No building or other improvement on the Land shall (except as
required by law) be altered (except as otherwise required or permitted under
Leases made in accordance with Section 1.16 hereof and except for alterations,
the aggregate cost of which does not exceed One Hundred Thousand Dollars
($100,000.00)), removed, or demolished nor shall any fixtures or appliances on,
in or about said buildings or Improvements be severed, removed, sold or
mortgaged, without the prior written consent of Mortgagee, and in the event of
the demolition or destruction in whole or in part of any of the fixtures,
chattels, or articles of personal property covered hereby or by any separate
security agreement given in conjunction herewith, the same shall be replaced
promptly by similar fixtures, chattels, and articles of personal property at
least equal in quality and condition to those replaced, free from any security
interest in or encumbrances thereon or reservation of title thereto except to
the extent otherwise authorized under the Loan Agreement. If all or any part of
the Mortgaged Property shall be damaged or destroyed by fire or other casualty
or shall be damaged or taken through the exercise of the power of eminent domain
or other cause described in Section 1.8 hereof, Borrower shall promptly and with
all due diligence restore and repair the Mortgaged Property whether or not the
proceeds, award or other compensation are sufficient to pay the cost of such
restoration or repair, provided that Mortgagee makes proceeds of insurance
available for such restoration pursuant to Section 1.9 hereof. The buildings and
Improvements shall be so restored or rebuilt so as to be of at least equal value
as prior to such damage or destruction, Borrower shall not permit, commit, or
suffer any waste or impairment of the Mortgaged Property or any part or
improvement thereof, reasonable wear and tear excepted, without Mortgagee's
prior consent which shall not be unreasonably withheld and shall keep and
maintain the Mortgaged Property and every part thereof in good repair and
condition and effect such repairs as Mortgagee may reasonably require, and, from
time to time, make all needful and proper replacements and additions thereto so
that said buildings, fixtures, machinery, and appurtenances will, at all times,
be in good condition, fit and proper for the respective purposes for which they
were originally erected or installed. Borrower shall not, after the date hereof,
subject the Mortgaged Property to any use covenants or restrictions and shall
not initiate, join in or consent to any change in any existing private
restrictive covenant, zoning ordinance, or other public or
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private restriction limiting or defining the uses which may be made of or the
kind of improvements which can be constructed or placed on the Land or any part
thereof (including, but not limited to, the Project Related Documents), which
would materially adversely effect its current use and shall promptly notify
Mortgagee of, and appear in and defend, at Borrower's sole cost and expense, any
such proceedings seeking to effect any of the foregoing. Borrower shall not
subdivide the portion of the Land owned by it, except as first approved by
Mortgagee, which shall not be unreasonably withheld, shall not subject the Land
and Improvements to the provisions of the condominium laws of the State of
Florida provided Mortgagee acknowledges that it is the intent of the parties
that the Mortgaged Property shall be subject to condominium and timeshare
regimes and the Property made a part of Mortgagor's "Vacation Clubs" timeshare
interests may be sold to third parties in the ordinary course of business. No
improvement on the Land or on land adjoining the Land which is owned or
controlled by Borrower shall be constructed unless plans and specifications
therefor have been first submitted to Mortgagee and approved by it, in the
exercise of its reasonable judgment, as entailing no prejudice to the
indebtedness secured hereby or the security therefor.
1.12 Transfer or Encumbrance of the Mortgaged Property. Except as
otherwise expressly permitted under the Loan Agreement, Borrower shall not
permit or suffer to occur any sale, assignment, conveyance, transfer, mortgage,
lease (other than Leases made in accordance with the provisions of this
Mortgage) or encumbrance of or any contract for any of the foregoing on an
installment basis pertaining to the Mortgaged Property, any part thereof, any
interest therein, or in any trust holding title to the Mortgaged Property or any
direct or indirect interest in a corporation, limited liability company,
partnership or other entity which owns all or part of the Mortgaged Property or
any such beneficial interest, whether by operation of law (excluding, however,
transfers which occur by reason of death) or otherwise (each hereinafter
referred to as a "Transfer or Encumbrance") without the prior written consent of
Mortgagee having been obtained (i) to any such Transfer or Encumbrance and (ii)
to the form and substance of any instrument evidencing or contracting for any
such Transfer or Encumbrance. Borrower shall not, without the prior written
consent of Mortgagee, further assign or permit to be assigned the Rents from the
Mortgaged Property, except to further secure Borrower's Liabilities, and any
such assignment without the prior express written consent of Mortgagee shall be
null and void. Borrower shall not permit any interest in any Lease of the
Mortgaged Property to be subordinated to any encumbrance on the Mortgaged
Property other than the Loan Documents and any such subordination shall be null
and void. Borrower agrees that in the event the ownership of the Mortgaged
Property, any interest therein or any part thereof becomes vested in a person
other than Borrower, Mortgagee may, without notice to Borrower, deal in any way
with such successor or successors in interest with reference to this Mortgage,
the Note, the Loan Documents and Borrower's Liabilities without in any way
vitiating or discharging Borrower's liability hereunder or Borrower's
Liabilities. No sale of the Mortgaged Property, no forbearance to any person
with respect to this Mortgage, and no extension to any person of the time for
payment of the Note or any other Borrower's Liabilities given by Mortgagee shall
operate to release, discharge, modify, change or affect the original liability
of Borrower, either in whole or in part, except to the extent specifically
agreed in writing by Mortgagee.
1.13 Further Assurances. At any time and from time to time, upon
Mortgagee's request, and provided that Borrower's Liabilities are not thereby
increased and Borrower incurs no cost in connection therewith, Borrower shall
make, execute and deliver, or cause to be made,
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executed and delivered, to Mortgagee, and where appropriate shall cause to be
recorded, registered or filed, and from time to time thereafter to be
re-recorded, re-registered and refiled at such time and in such offices and
places as shall be deemed reasonably necessary by Mortgagee, any and all such
further mortgages, security agreements, financing statements, instruments of
further assurance, certificates and other documents as may be reasonably
necessary in order to effectuate or perfect, or to continue and preserve the
obligations under, the Note, this Mortgage, any other Loan Document and any
instrument evidencing or securing Borrower's Liabilities, and the lien of this
Mortgage as a lien upon all of the Mortgaged Property, whether now owned or
hereafter acquired by Borrower. Upon any failure by Borrower to do so, Mortgagee
may if Borrower has failed to execute the same within ten (10) business days
after request, make, execute, record, register, file, re-record, re-register or
re-file any and all such mortgages, instruments, certificates and documents for
and in the name of Borrower, and Borrower hereby irrevocably appoints Mortgagee
the agent and attorney-in-fact of Borrower to do so.
1.14 Security Agreement and Fixture Filing. Borrower (as debtor) hereby
grants to Mortgagee (as creditor and secured party) a security interest under
the Florida Uniform Commercial Code ("UCC") in all fixtures, machinery,
appliances, equipment, furniture and personal property of every nature
whatsoever constituting part of the Mortgaged Property. Borrower shall execute
any and all documents, or shall permit the filing of such documents, including
without limitation financing statements pursuant to the UCC, as Mortgagee may
request to evidence, establish, protect, preserve, maintain and perfect the
priority of the first lien and security interest created hereby on property
which may be deemed personal property or fixtures, and shall pay to Mortgagee on
demand any reasonable expenses incurred by Mortgagee in connection with the
preparation, execution and filing of any such documents. Borrower hereby
authorizes and empowers Mortgagee and irrevocably appoints Mortgagee the agent
and attorney-in-fact of Borrower to execute and file, on Borrower's behalf, all
financing statements and refilings and continuations thereof as Mortgagee deems
necessary or advisable to create, preserve and protect such lien. To the extent
permitted by applicable law, Borrower covenants and agrees that the filing of
this Mortgage in the real estate records of the county in which the Mortgaged
Property is locates shall also operate from the time of filing as a fixture
filing with respect to all goods constituting part of the Mortgaged Property
which are or are to become fixtures related to the real estate described herein.
For such purpose, the following information is set forth:
(a) Name and Address of debtor:
Bluegreen Vacations Unlimited, Inc.
c/o Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
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(b) Name and Address of secured party:
Resort Finance LLC
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
(c) This document covers goods which are or are to become
fixtures.
Borrower makes the following representations and warranties, and agrees to the
following covenants, each of which representations, warranties and covenants
shall be continuing and in force so long as this Mortgage is in effect: (i) the
name of the Borrower set forth on the first page hereof is the true and correct
legal name of the Borrower, and the Borrower has not done business as or used
any other name, (ii) Borrower's Federal Employer Identification Number is
00-0000000, (iii) Borrower will not change its name, identity or organizational
structure or merge into or consolidate with any other entity, unless otherwise
permitted hereunder only then unless the Borrower shall have given the Mortgagee
at least thirty (30) days' prior written notice thereof and shall have delivered
to Mortgagee such documentation as may be necessary or required by Mortgagee to
ensure the continued perfection and priority of the security interests granted
by this Mortgage. When and if Borrower and Mortgagee shall respectively become
the debtor and secured party in any UCC financing statements affecting the
Mortgaged Property (or Mortgagee takes possession of personal property delivered
by Borrower where possession is the means of perfection of the security
interest), then, at Mortgagee's sole election, this Mortgage shall be deemed a
security agreement as defined in such UCC, and the remedies for any violation of
the covenants, terms and conditions of the agreements herein contained shall be
as prescribed herein or by general law, or, as to such part of the security
which is also reflected in such financing statement, by the specific statutory
consequences now or hereafter enacted and specified in the UCC. If an Event of
Default occurs, Mortgagee shall be entitled immediately to exercise all remedies
available to it under the UCC and this Section 1.14. Borrower shall, in such
event and if Mortgagee so requests, assemble the tangible personal property at
Borrower's expense, at a convenient place designated by Mortgagee. During an
Event of Default Borrower shall pay all expenses incurred by Mortgagee in the
collection of such indebtedness, including reasonable attorneys' fees and legal
expenses, and in the repair of any real estate or other property to which any of
the tangible personal property may be affixed. If any notification of intended
disposition of any of the personal property is required by law, such
notification shall be deemed reasonable and proper if given at least thirty (30)
days before such disposition. Any proceeds of the disposition of any of the
personal property may be applied by Mortgagee to the payment of the reasonable
expenses of retaking, holding, preparing for sale and selling the personal
property, including reasonable attorneys' fees and legal expenses, and any
balance of such proceeds may be applied by Mortgagee toward the payment of such
of Borrower's Liabilities, and in such order of application, as Mortgagee may
from time to time elect.
1.15 Collections and Payments of Rents. Notwithstanding the present
assignment of Rents, income and other benefits specified in clause (J) of the
granting paragraph of this Mortgage, so long as, and on the condition that, no
Event of Default then exists, Borrower shall have the right and authority to
continue to collect, and, except as hereinafter specified, dispose of as
Borrower determines, the Rents, income and benefits from the Mortgaged Property
as they
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become due and payable. The existence or exercise of such right of Borrower to
collect such Rents, income and other benefits shall not operate to subordinate
the assignment thereof under this Mortgage to any subsequent assignment of such
Rents, income or other benefits, in whole or in part, by Borrower, and any such
subsequent assignment by Borrower shall be subject to the rights of Mortgagee
hereunder. Except as otherwise expressly provided in Leases approved by
Mortgagee, and except for (i) security deposits and (ii) prepaid expense
estimates, Borrower shall not permit any Rent under any Lease of the Mortgaged
Property to be collected more than thirty (30) days in advance of the due date
thereof and, as to Mortgagee, anyone claiming by, through or under Mortgagee,
any receiver, or any purchaser at a foreclosure sale coming into possession of
the Mortgaged Property, no tenant shall be given credit for any rent paid more
than thirty (30) days in advance of the due date thereof. Any cancellation
penalties or other consideration paid to the Borrower in excess of Twenty-Five
Thousand Dollars ($25,000.00) per Lease on account of any tenant vacating all or
any portion of the Premises before the expiration date of any Lease, or on
account of any claim, demand, action, suit or proceeding, including, without
limitation, any claim, contested matter or adversary proceeding under the
Bankruptcy Code, relating to the breach or rejection of any of the Leases by any
tenant thereunder, or trustee of any such tenant under the Bankruptcy Code,
including, without limitation, all damages arising out of such breach or
rejection, all rights to charges payable by such tenant or trustee in respect of
the premises demised under such Leases following the entry of an order for
relief under the Bankruptcy Code in respect of such tenant and all rentals and
other charges outstanding under the Lease as of the date of entry of such order
for relief, shall be deposited into an interest bearing account with an escrow
agent acceptable to Mortgagee. Escrowed funds plus accrued interest shall be
released to the Borrower.
1.16 Leases. Borrower shall act promptly to attempt to enforce all
available remedies against any delinquent tenant in a commercially reasonable
manner commensurate with the magnitude of the default involved, so as to protect
the interest of the landlord under the Leases and to preserve the value of the
Mortgaged Property. Borrower shall comply with and perform in a complete and
timely manner all of its material obligations as landlord under all Leases.
Borrower shall send Mortgagee a copy of any and each written claim received by
Borrower from any tenant of an alleged default by the landlord under any Lease
affecting the Mortgaged Property, promptly upon receipt of such notice, but, in
any event, in such time to afford Mortgagee an opportunity to cure any such
default prior to the tenant having any right to terminate the Lease. Borrower
shall furnish promptly to Mortgagee upon request (i) copies of all such Leases
now existing or hereafter created, as amended, and (ii) a current rent roll in
form reasonably satisfactory to Mortgagee certified by Borrower. The assignment
contained in clause (K) of the granting paragraph of this Mortgage shall not be
deemed to impose upon Mortgagee any of the obligations or duties of the landlord
or Borrower provided in any Lease prior to Mortgagee owning or controlling the
Mortgaged Property, including, without limitation, any liability under the
covenant of quiet enjoyment contained in any Lease in the event that any tenant
shall have been joined as a party defendant in any action to foreclose this
Mortgage. Borrower hereby acknowledges and agrees that Borrower is and will
remain liable under such Leases to the same extent as though the assignment
contained in clause (K) of said granting paragraph had not been made. Mortgagee
disclaims any assumption of the obligations imposed upon the landlord or
Borrower under the Leases, except as to such obligations which arise after such
time as Mortgagee shall have exercised the rights and privileges conferred upon
it by the assignment contained in clause (K) of said granting paragraph or
otherwise possesses or controls
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the Mortgaged Property. Except as otherwise expressly authorized under the Loan
Agreement, Borrower shall not permit any Leases to be made of the Mortgaged
Property without the prior written consent of Mortgagee which consent shall not
be unreasonably withheld, conditioned or delayed. Following approval by
Mortgagee of any Lease requiring Mortgagee's prior approval, Borrower shall not
modify the approved Lease in any material respect without Mortgagee's prior
written consent. Borrower shall not permit any Lease affecting the Mortgaged
Property requiring Mortgagee's prior approval to be modified, renewed or
extended (except pursuant to options in Leases previously approved by
Mortgagee). In the event of the enforcement by Mortgagee of the remedies
provided for by law or by this Mortgage, the tenant under each Lease of all or
any part of the Mortgaged Property made after the date of recording this
Mortgage shall, at the option of the Mortgagee, attorn to any person succeeding
to the interest of Borrower, as a result of such enforcement and shall recognize
such successor in interest as landlord under such Lease without change in the
terms or other provisions thereof, provided, however, that said successor in
interest shall not be bound by any payment of rent or additional rent for more
than one month in advance or any material amendment or modification to any Lease
made without the prior consent of Mortgagee or said successor in interest,
except to the extent permitted herein. Each tenant, upon request by Mortgagee or
any such successor in interest, shall execute and deliver an instrument or
instruments confirming such attornment, provided that Mortgagee agrees not to
name such tenant in a foreclosure action or not to otherwise disturb such tenant
if not in default of its Lease, and Borrower shall cause each such Lease to
contain a covenant on the tenant's part evidencing its agreement to such
attornment, which obligation shall be conditioned on Mortgagee agreeing to
similarly attorn to said tenant and not disturb said tenant's possession so long
as there is no default by the tenant under said Lease beyond any applicable
notice, grace or cure period. At the option of Mortgagee, this Mortgage shall
become subject and subordinate, in whole or in part (but not with respect to
priority of entitlement to insurance proceeds or any award in condemnation) to
any and all Leases of all or any part of the Mortgaged Property upon the
execution by Mortgagee and recording thereof, at any time hereafter, in the
Office of the Recorder of Deeds in and for the county wherein the Land is
situated, of a unilateral declaration to that effect.
1.17 Management of Mortgaged Property. Borrower shall cause the Mortgaged
Property to be managed at all times in accordance with sound business practice
by Borrower, or any competent and reputable managing agent reasonably acceptable
to Mortgagee pursuant to a management agreement reasonably approved by Mortgagee
in writing in advance of execution thereof by Borrower, or anyone acting on its
behalf. Following such approval, Borrower shall not permit the management
agreement to be terminated (except for good cause after notice to Mortgagee),
modified or amended in any material respect, or extended, or permit a change in
the identity of the management agent, without Mortgagee's prior written consent
which will not be unreasonably withheld or delayed, provided, however, that it
shall not be deemed unreasonable if Mortgagee requires as a condition to giving
such consent that the proposed property manager fully subordinate to the lien of
this Mortgage, or at Mortgagee's election, waive, any lien for past, present or
prospective services to which said property manager might otherwise be entitled
by reason of any provision of the Florida Mechanics' Lien Law. Each management
agreement shall be subject in all respects to the lien of this Mortgage and the
rights of Mortgagee hereunder, and each management agreement shall so provide.
14
1.18 Books and Records; Financial Statements. Borrower shall keep and
maintain at all times complete, true and accurate books of account and records
reflecting the results of the operation of the Mortgaged Property as specified
in the Loan Agreement.
1.19 Estoppel Certificate. Borrower, within ten (10) business days after
written request from Mortgagee, but not more than twice a year, shall furnish a
written statement executed by Borrower setting forth to the best of Borrower's
knowledge the unpaid principal of, and interest on, the Note, and any other
unpaid sums secured hereby, and whether or not any offsets or defenses are
claimed to exist against the payment of such principal and interest or other
sums and, if any such offsets or defenses are claimed, the specific basis and
amount of each such claim. Borrower shall have the right to request from
Mortgagee a written statement executed by Mortgagee setting forth the
information specified in the foregoing sentence; provided, however, that
Mortgagee shall not be obligated to furnish Borrower any such statement more
than twice a year. If Borrower objects to the principal, interest or escrow
amount or the application of any payment shown on any written statement,
receipt, invoice or other written notice received by Borrower or any officer of
Borrower, Borrower shall raise such objection by written notice to Mortgagee
within sixty (60) days following receipt of such statement, receipt, invoice or
other written notice or else such objection shall be deemed waived by Borrower
and such other parties. If Mortgagee fails to respond to any such written
objection received from Borrower within sixty (60) days following receipt of
such written objection, then Mortgagee shall be deemed to have agreed to such
objection and shall modify its records to correctly reflect the amounts stated
in Borrower's written objection.
1.20 Expenses. Borrower shall pay when due and payable, and otherwise on
demand made by Mortgagee to the extent required hereunder, all reasonable
out-of-pocket appraisal fees, recording and filing fees, taxes, brokerage fees
and commissions, abstract and survey fees, title insurance fees, escrow fees,
fees and expenses of attorneys retained by Mortgagee (excluding attorneys who
are employees of Mortgagee), court costs, documentary and expert evidence, fees
of inspecting architects and engineers, costs of environmental investigations,
and all other costs and expenses of every character which have been incurred or
which may hereafter be incurred by Mortgagee in connection with any of the
following: (i) the preparation, execution, delivery and performance of the Loan
Documents; (ii) the funding of the loan evidenced by the Note; (iii) any court
or administrative proceeding involving Borrower, the Mortgaged Property or the
Loan Documents to which Mortgagee is made a party or is subject to subpoena by
reason of its being a holder of any of the Loan Documents, including without
limitation bankruptcy, insolvency, reorganization, probate, eminent domain,
condemnation, tort, environmental, civil rights, building code and zoning
proceedings; (iv) any court or administrative proceeding or other action
undertaken by Mortgagee to enforce any remedy or to collect any indebtedness due
under this Mortgage or any of the other Loan Documents following an Event of
Default, as defined herein, including without limitation a foreclosure of this
Mortgage or a public or private sale under the UCC; (v) any remedy exercised by
Mortgagee following an Event of Default including foreclosure of this Mortgage
and actions in connection with taking possession of the Mortgaged Property or
collecting Rents assigned hereby and by any of the other Loan Documents; (vi)
any activity in connection with any request by Borrower, or anyone acting on
behalf of Borrower, that the Mortgagee consent to a proposed action which,
pursuant to this Mortgage or any of the other Loan Documents, may be undertaken
or consummated only with the prior consent of Mortgagee, whether or not such
consent is granted; or (vii) any negotiation undertaken between
15
Mortgagee and Borrower, or anyone acting on behalf of Borrower, pertaining to
the existence or cure of any default under or the modification or extension of
any of the Loan Documents. If Borrower fails to pay said costs and expenses as
above provided within thirty (30) days after demand therefor, Mortgagee may
elect, but shall not be obligated, to pay the costs and expenses described in
this Section 1.20, and if Mortgagee does so elect, the Borrower will, upon
demand by Mortgagee, reimburse Mortgagee for all such expenses which have been
or shall be paid or incurred by it. The amounts paid by Mortgagee in respect of
such expenses, together with interest thereon at the Default Rate (hereinafter
defined) from the date paid by Mortgagee until paid by Borrower, shall be added
to Borrower's Liabilities, shall be immediately due and payable and shall be
secured by the lien of this Mortgage and the other Loan Documents. In the event
of foreclosure hereof, Mortgagee shall be entitled to add to the indebtedness
found to be due by the court a reasonable estimate of such expenses to be
incurred after entry of the decree of foreclosure. To the extent permitted by
law, Borrower agrees to hold harmless Mortgagee against and from, and reimburse
it for, all claims, demands, liabilities, losses, damages, judgments, fines,
penalties, costs and expenses, including without limitation reasonable
attorneys' fees, which may be imposed upon, asserted against, or incurred or
paid by it by reason of or in connection with any personal injury or death or
property damage occurring in or upon or the Mortgaged Property through any cause
whatsoever prior to the issuance of a deed following a foreclosure sale or the
delivery of a deed in lieu of foreclosure, other than Mortgagee's, its agents',
employees' or contractors' negligence or willful misconduct, or asserted against
it on account of any act performed or omitted to be performed hereunder, or on
account of any transaction arising out of or in any way connected with the
Mortgaged Property, this Mortgage, the other Loan Documents, any of the
indebtedness evidenced by the Note or any of Borrower's Liabilities.
1.21 Mortgagee's Performance of Borrower's Obligations. If Borrower fails
to pay any tax, assessment, encumbrance or other imposition, or to furnish
insurance hereunder, or to perform any other covenant, condition or term in this
Mortgage, the Note or any other Loan Document, after the expiration of any
applicable cure period, Mortgagee may, after giving written notice to Borrower,
but shall not be obligated to, pay, obtain or perform the same. All payments
made, whether such payments are regular or accelerated payments, and reasonable
costs and expenses incurred or paid by Mortgagee in connection therewith, shall
be due and payable immediately upon demand. The amounts so incurred or paid by
Mortgagee, together with interest thereon at the Default Rate from the date
demand for payment is made by Mortgagee until reimbursed by Borrower, shall be
added to Borrower's Liabilities and secured by the lien of this Mortgage and the
other Loan Documents. Mortgagee is hereby empowered to enter and to authorize
others to enter upon the Mortgaged Property or any part thereof for the purpose
of performing or observing any covenant, condition or term that Borrower has
failed to perform or observe, after the expiration of any applicable grace or
cure period, without thereby becoming liable to Borrower or any person in
possession holding under Borrower. Performance or payment by Mortgagee of any
obligation of Borrower shall not relieve Borrower of such obligation or of the
consequences of having failed to perform or pay the same and shall not effect
the cure of any Event of Default.
1.22 Payment of Superior Liens. To the extent that Mortgagee, after the
date hereof, pays in accordance with Section 1.21 hereof any sum due under any
provision of law or instrument or document creating any lien superior or equal
in priority in whole or in part to the
16
lien of this Mortgage, Mortgagee shall have and be entitled to a lien on the
Mortgaged Property equal in parity with that discharged, and Mortgagee shall be
subrogated to all liens possessed, held or enjoyed by the holder of such lien,
which shall remain in existence and benefit Mortgagee to secure the Note and all
obligations and liabilities secured hereby. Mortgagee shall be subrogated,
notwithstanding their release of record, to mortgages, trust deeds, superior
titles, vendors' liens, mechanics' and materialmen's liens, charges, and
encumbrances on the Mortgaged Property to the extent that any obligation under
any thereof is paid or discharged with proceeds of disbursements or advances
under the Note or other indebtedness secured hereby.
1.23 Prevention of Prescription Rights. Borrower shall not permit the
Mortgaged Property, or any portion thereof, to be used by the public, as such,
without restriction or in such manner as might reasonably tend to impair
Borrower's title to the Mortgaged Property or any portion thereof, or in such
manner as might reasonably make possible a claim or claims of easement by
prescription or adverse possession by the public, as such, or of implied
dedication of the Mortgaged Property or any portion thereof.
1.24 Litigation Involving Mortgaged Property. Borrower shall promptly
notify Mortgagee of any litigation other than any suit for money damages in an
amount not exceeding Two Million Five Hundred Thousand Dollars ($2,500,000.00)
which, together with the cost of defending the same, is covered by insurance,
and administrative proceeding initiated against Borrower or the Mortgaged
Property or in which the Mortgaged Property is directly or indirectly affected
including any proceedings which seek to (i) enforce any lien against the
Mortgaged Property, (ii) correct, change or prohibit any existing condition,
feature or use of the Mortgaged Property, (iii) condemn or demolish the
Mortgaged Property, (iv) take, by the power of eminent domain, any portion of
the Mortgaged Property or any property which would damage the Mortgaged
Property, (v) modify the zoning applicable to the Mortgaged Property, or (vi)
otherwise adversely affect the Mortgaged Property. Borrower shall initiate or
appear in any legal action or other appropriate proceedings when necessary to
protect the Mortgaged Property from damage. Borrower shall, upon written request
of Mortgagee, represent and defend the interests of Mortgagee in any proceedings
described in this Section 1.24 or, if Mortgagor is not defending with due
diligence after notice from Mortgagee and the expiration of thirty (30) days, at
Mortgagee's election, pay the reasonable fees and expenses of any counsel
retained by Mortgagee to represent the interest of Mortgagee in any such
proceedings.
1.25 Environmental Matters. The rights and obligations of Borrower and
Mortgagee respecting environmental matters affecting the Mortgaged Property are
specified in a separate Environmental Indemnity Agreement from Borrower to
Mortgagee dated even date herewith which is one of the Loan Documents.
1.26 Inspections; Access to Mortgaged Property. Mortgagee shall have the
right, but no obligation, at any reasonable time upon reasonable prior notice
during normal business hours to enter upon the Mortgaged Property for the
purpose of (i) inspecting the same; (ii) conducting an environmental audit and
taking samples and/or tests in connection therewith (but not more frequently
than once a year, as to audits, unless (and in the case of sampling and/or
testing, only if,) there is a reasonable basis to believe that an environmental
problem has arisen in regards to the Mortgaged Property); (iii) reviewing
Borrower's books and records; (iv) interviewing Borrower's employees and
officers; and (v) conducting similar activities reasonably
17
related to Mortgagee's assessment of Borrower's compliance with the requirements
of this Mortgage. Borrower shall cooperate in the conduct of any such inspection
or environmental audit and Borrower reserves the right to escort Mortgagee on
the Property. Such access and inspections shall be conducted with as little
interference to tenants, licenses or occupants as reasonably practicable. Damage
to the Mortgaged Property caused by Mortgagee in conducting any environmental
audit shall be repaired by Mortgagee, except for any damage resulting from
drilling, coring, or other invasive activities reasonably required under
circumstances in which Mortgagee had a reasonable basis for suspecting that a
violation of any Environmental Law existed. Mortgagee shall use reasonable
efforts to keep the information contained in such reports confidential, subject
to Mortgagee's disclosure rights specified in Section 1.18 of the Loan
Agreement.
1.27 Right to Contest Taxes and Mechanics' Liens. The obligations of
Borrower under Sections 1.3, 1.4, and 1.5 hereof, and the rights of Mortgagee
under Section 1.21 hereof, are subject to the right Borrower shall have to
contest in good faith the validity or amount of any tax or assessment or lien
arising from any work performed at or materials furnished to the Mortgaged
Property which right, however, is conditional upon (i) such contest having the
effect of staying the lien so contested and the sale or forfeiture of the
premises or any part thereof or interest therein to satisfy the same, (ii)
Borrower giving Mortgagee written notice of its intention to contest the same in
a timely manner, which, with respect to any contested tax or assessment, shall
mean before any such tax, assessment or lien has been increased by any penalties
or costs, and with respect to any contested mechanic's lien claim, shall mean
within thirty (30) days after Borrower receives actual notice of the filing
thereof, (iii) to the extent not bonded over or action commerced to set aside
any foreclosure of tax lien Borrower making and thereafter maintaining with
Mortgagee or such other depositary as Mortgagee may designate, a deposit of cash
(or United States government securities, in discount form, or other security, as
may, in Mortgagee's sole discretion, be acceptable to Mortgagee, and in either
case having a present value equal to the amount herein specified) in an amount
not less than One Hundred Twenty-Five Percent (125%) of the amount which, in
Mortgagee's reasonable opinion, determined from time to time, shall be
sufficient to pay in full such contested tax, assessment or lien and penalties,
costs and interest that may become due thereon in the event of a final
determination thereof adverse to Borrower or in the event Borrower fails to
prosecute such contest as herein required (or in lieu thereof, Borrower
obtaining an endorsement, in form and substance satisfactory to Mortgagee, in
its sole discretion, to the loan policy of title insurance insuring the lien to
this Mortgage issued to Mortgagee insuring over such tax, assessment or lien),
and (iv) Borrower diligently prosecuting such contest by appropriate legal
proceedings. Borrower shall pay or bond over the disputed or contested tax,
assessment or lien and all interest and penalties due in respect thereof
promptly after any adjudication of the validity or amount thereof becomes final
and non-appealable and in any event not less than thirty (30) days prior to any
forfeiture or sale of the Mortgaged Property by reason of such non-payment. In
the event Borrower shall fail to prosecute such contest with reasonable
diligence or shall fail to maintain sufficient funds, or other security as
aforesaid, on deposit as hereinabove provided, or shall fail to pay any sum
adjudicated to be due within ten (10) business days after such adjudication,
Mortgagee may, at its option, liquidate the securities deposited with Mortgagee,
and apply the proceeds thereof and other monies deposited with Mortgagee in
payment of, or on account of, such taxes, assessments, or liens or any portion
thereof then unpaid, including the payment of all penalties and interest
thereon.
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II
DEFAULTS AND REMEDIES
2.1 Events of Default. The term "Event of Default", wherever used in this
Mortgage, shall mean any one or more of the following events: (i) an Event of
Default under (and as defined in) the Loan Agreement, the Note, or any of the
other Loan Documents shall have occurred, or (ii) the failure by Borrower to pay
or deposit when due any deposit for taxes and/or insurance due hereunder, or any
other sums to be paid by Borrower hereunder, which shall not have been cured, by
the payment of all amounts then owing, within ten (10) days after notice of such
default is given to Borrower; (ii) the failure of Borrower to keep, perform or
observe any other covenant, condition or agreement on the part of Borrower in
this Mortgage, and with respect to failures capable of being cured (in contrast
to, by way of example and not limitation, a failure to comply with the
provisions of Section 1.12 hereof, respecting a Transfer or Encumbrance made
without Mortgagee's prior consent, for which no notice shall be required and no
right to cure shall exist), such failure shall continue for thirty (30) days
following the delivery of a written notice to Borrower, or within such longer
period, not exceeding an additional one hundred fifty (150) days, as may
reasonably be required for any such default which cannot reasonably be cured
within such thirty (30) days, subject to the same provisos specified in Section
8.1(a) of the Loan Agreement applicable to any extended cure period.
2.2 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 any other of Borrower's Liabilities to be
immediately due and payable, and upon such declaration such principal and
interest and other Borrower's Liabilities shall be due and payable without
further demand or notice.
2.3 Foreclosure and Other Remedies. In addition to any other remedy herein
specified, if an Event of Default occurs, Mortgagee may proceed to protect and
enforce the rights of the Mortgagee hereunder (i) by the foreclosure of this
Mortgage pursuant to Florida Mortgage Foreclosure law (the "Act") or as
otherwise permitted by law, with respect to either (and at Mortgagee's option)
the entire amount of Borrower's Liabilities, or any delinquent installment or
installments of the indebtedness secured hereby (in an amount not to exceed the
principal sum of Fourteen Million Six Hundred Sixty-Two Thousand Five Hundred
Forty-Two and No/100 Dollars ($14,662,542.00) to the extent advanced under the
Note plus (i) any protection advances which may hereafter be made pursuant to
this Mortgage and (ii) any expenses incurred by Lender in protecting its rights
under or in the enforcement of this Mortgage including, but not limited to,
attorneys' fees, court and legal costs) without accelerating the due date of the
entire indebtedness, in which case any sale of the Mortgaged Property under such
a foreclosure proceeding shall be subject to and shall not affect the unmatured
part of the indebtedness secured hereby and this Mortgage shall be and continue
as a lien on the Mortgaged Property securing such unmatured indebtedness, or
(ii) by any action at law or suit in equity, whether of the specific performance
of any agreement contained herein, or for an injunction against the violation of
any of the terms hereof, or in aid of the exercise of any power granted hereby
or by law.
2.4 Appointment of Receiver. If an Event of Default occurs, Mortgagee
shall, as a matter of right, with notice and without giving bond to Borrower or
anyone claiming by, under or
19
through it, and without regard to the solvency or insolvency of Borrower or the
then value of the Mortgaged Property, be entitled to have a receiver appointed
of all or any part of the Mortgaged Property and the Rents, issues and profits
thereof, with such power as the court making such appointment shall confer, and
Borrower hereby consents to the appointment of such receiver and shall not
oppose any such appointment. Any such receiver may, to the extent permitted
under applicable law, with notice and process of law, enter upon and take
possession of the Mortgaged Property or any part thereof and may remove Borrower
or other persons as provided by law and any and all property therefrom, and may
hold, operate and manage the same and receive all earnings, income, Rents,
issues and proceeds accruing with respect thereto or any part thereof, whether
during the pendency of any foreclosure or until any right of redemption shall
expire or otherwise.
2.5 Mortgagee's Right to Enter and Take Possession, Operate and Apply
Income. During an Event of Default, upon demand by Mortgagee, whether before or
after institution of legal proceedings to foreclose the lien of this Mortgage or
before or after the sale thereunder, Borrower shall surrender to Mortgagee and
Mortgagee may with process of law enter and take possession of the Mortgaged
Property or any part thereof personally, by its agent or attorneys or be placed
in possession pursuant to court order as mortgagee in possession or receiver,
and Mortgagee, in its discretion, personally, by its agents or attorneys or
pursuant to court order as mortgagee in possession or receiver, may enter upon
and take and maintain possession of all or any part of the Mortgaged Property,
together with all Leases, documents, books, records, papers, and accounts of
Borrower relating thereto, and may exclude Borrower and any agents and servants
thereof wholly therefrom and may, on behalf of Borrower, or in its own name as
Mortgagee and under the powers herein granted: (i) hold, operate, manage and
control all or any part of the Mortgaged Property and conduct the business, if
any, thereof, either personally or by its agents, with full power to use such
measures, legal or equitable, as in its discretion may be deemed proper or
necessary to enforce the payment or security of the Rents, issues, deposits,
profits, and avails of the Mortgaged Property, including without limitation
actions for recovery of rent, actions in forcible detainer, and actions in
distress for rent, all without notice to Borrower; (ii) cancel or terminate any
Lease or sublease of all or any part of the Mortgaged Property for any cause or
on any ground that would entitle Borrower to cancel the same; (iii) to the
extent permitted by law, elect to disaffirm any Lease or sublease of all or any
part of the Mortgaged Property made subsequent to this Mortgage without
Mortgagee's prior written consent; (iv) extend or modify any then existing
Leases and make new Leases of all or any part of the Mortgaged Property, which
extensions, modifications, and new Leases may provide for terms to expire or for
options to tenants to extend or renew terms to expire, beyond the Maturity Date
and the issuance of a deed or deeds to a purchaser or purchasers at a
foreclosure sale, it being understood and agreed that any such Leases, and the
options or other such provisions to be contained therein, shall be binding upon
Borrower, all persons whose interests in the Mortgaged Property are subject to
the lien hereof, and the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption from sale, discharge of the indebtedness hereby
secured, satisfaction of any foreclosure decree, or issuance of any certificate
of sale or deed to any such purchaser; (v) make all necessary or proper repairs,
decoration renewals, replacements, alterations, additions, betterments, and
improvements in connection with the Mortgaged Property as are reasonably
necessary, to insure and reinsure the Mortgaged Property and all risks
incidental to Mortgagee's possession, operation and management thereof, and to
receive all Rents, issues, deposits, profits, and avails therefrom; and (vi)
apply the net income,
20
after allowing a reasonable fee for the collection thereof and for the
management of the Mortgaged Property, to the payment of taxes, premiums and
other charges applicable to the Mortgaged Property, or in reduction of the
indebtedness hereby secured in such order and manner as Mortgagee shall select.
Nothing herein contained shall be construed as constituting Mortgagee a
mortgagee in possession in the absence of the actual taking of possession of the
Mortgaged Property. The right to enter and take possession of the Mortgaged
Property and use any personal property therein, to manage, operate, conserve and
improve the Mortgaged Property, and to collect the Rents, issues and profits
thereof, shall be in addition to all other rights or remedies of Mortgagee
hereunder or afforded by law, and may be exercised concurrently therewith or
independently thereof. Mortgagee shall not be liable to account to Borrower for
any action taken pursuant hereto other than to account for any Rents actually
received by Mortgagee. During an Event of Default, in the event the Mortgaged
Property becomes vacant or are abandoned, Mortgagee may, without taking
possession of the Mortgaged Property, take such steps as it reasonably deems
appropriate to protect and secure the Mortgaged Property, including hiring
watchmen therefor, and all costs incurred in so doing shall constitute so much
additional indebtedness hereby secured payable upon demand with interest thereon
at the Default Rate provided in the Note.
2.6 Waiver of Appraisement, Valuation, Stay; Extension and Redemption
Laws. Borrower shall not apply for or avail itself of any appraisement,
valuation, stay, extension or exemption laws, or any so-called "Moratorium
Laws," now existing or hereafter enacted in order to prevent or hinder the
enforcement or foreclosure of this Mortgage, and hereby waives the benefit of
such laws. To the fullest extent permitted by law, Borrower hereby voluntarily
and knowingly waives any and all rights of redemption as allowed under Florida
law, and to the fullest extent permitted by law, the benefits of all present and
future valuation, appraisement, homestead, exemption and moratorium laws under
any state or federal law, all on behalf of Borrower, and each and every person
acquiring any interest in or title to the Mortgaged Property described herein
subsequent to the date of this Mortgage, and on behalf of all other persons.
2.7 Costs and Expenses of Foreclosure. In any suit to foreclose the lien
hereof, there shall be allowed and included as additional indebtedness hereby
secured in the decree of sale all expenditures and expenses authorized by law
and all other expenditures and expenses specified in Section 1.20 hereof.
2.8 Sale of Mortgaged Property. Borrower for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Mortgaged Property marshalled upon any foreclosure of the lien
hereof and agrees that any court having jurisdiction to foreclose such lien may
order the Mortgaged Property sold as an entirety. In the event of any sale made
under or by virtue of this instrument, the whole of the Mortgaged Property may
be sold in one parcel as an entirety or in separate lots or parcels at the same
or different times, all as the Mortgagee may determine. Mortgagee shall have the
right to become the purchaser at any sale made under or by virtue of this
instrument and Mortgagee so purchasing at any such sale shall have the right to
be credited upon the amount of the bid made therefor by Mortgagee with the
amount payable to Mortgagee out of the net proceeds of such sale. Any real
estate or any interest or estate therein sold pursuant to any court order or
decree obtained pursuant to this Mortgage shall be sold in one parcel, as an
entirety, or in such parcels
21
and in such manner or order as Mortgagee, in its sole discretion, may elect, to
the maximum extent permitted by the Act.
2.9 Application of Proceeds. The proceeds of any foreclosure sale of the
Mortgaged Property or of any sale of property pursuant to this Mortgage shall be
distributed in the following order of priority: First, on account of all costs
and expenses incident to the foreclosure or other proceedings including all such
items as are mentioned in this Mortgage; Second, to all other items which under
the terms hereof constitute indebtedness hereby secured in addition to that
evidenced by the Note with interest thereon as herein provided; Third, to all
interest on the Note; Fourth, to all principal on the Note; Fifth, any surplus
to whomsoever shall be lawfully entitled to such surplus.
2.10 Remedies Cumulative and Concurrent. No remedy or right of Mortgagee
hereunder, or under any other Loan Document or otherwise available under
applicable law, shall be exclusive of any other right or remedy, but each such
remedy or right shall be in addition to every other remedy or right now or
hereafter existing at law or in equity under any such document or under
applicable law. No delay in the exercise of, or omission to exercise, any remedy
or right accruing on any Event of Default shall impair any such remedy or right
or be construed to be a waiver of any such Event of Default or any acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or a
different nature. Every such remedy or right may be exercised concurrently or
independently, and when and as often as may be deemed expedient by Mortgagee.
All obligations of the Borrower, and all rights, powers and remedies of the
Mortgagee expressed herein, shall be in addition to, and not in limitation of,
those provided by law or in the Note or any other Loan Documents.
2.11 Partial Payments. Acceptance by Mortgagee of any payment which is
less than payment in full of all amounts due and payable at the time of such
payment shall not constitute a waiver of Mortgagee's right to demand payment of
the balance due, or any other rights of the Mortgagee at that time or any
subsequent time.
2.12 Tender of Payment After Acceleration. In the event, after legal
proceedings are instituted to foreclose the lien of this Mortgage, tender is
made of the entire indebtedness due hereunder, Mortgagee shall be entitled to
reimbursement for expenses incurred in connection with such legal proceedings,
including such expenditures as are enumerated above, and such expenses shall be
so much additional indebtedness secured by this Mortgage, and no such suit or
proceedings shall be dismissed or otherwise disposed of until such fees,
expenses, and charges shall have been paid in full.
2.13 Delays and Omissions. No course of dealing and no delay in the
exercise of or failure to exercise any remedy or right accruing by reason of any
Event of Default under this Mortgage shall impair any such remedy or right or be
construed to be a waiver of any such Event of Default or acquiescence therein,
nor shall it affect any subsequent default of the same or of a different nature.
2.14 Rescission of Election. Any Event of Default for which Mortgagee has
not exercised any remedies, may, at the option of Mortgagee be waived on such
conditions as Mortgagee specifies, any acceleration of maturity, by reason of an
Event of Default, once made
22
by Mortgagee, may at the option of Mortgagee be rescinded, and any proceedings
brought to enforce any rights or remedies hereunder may, at Mortgagee's option,
be discontinued or dismissed, whereupon, in any such event, Borrower and
Mortgagee shall be restored to their former positions, and the rights, remedies
and power of Mortgagee shall continue as if such Event of Default had not
occurred, such acceleration had not been made or such proceedings had not been
commenced, as the case may be.
2.15 No Liability on Mortgagee. Notwithstanding anything contained herein
to the contrary, the Mortgagee shall not be obligated to perform or discharge
any obligation, duty or liability of Borrower, whether under any of the Leases
or otherwise, and Borrower shall and does hereby agree to indemnify and hold the
Mortgagee harmless of and from any and all liability, claim, expense, loss or
damage which Mortgagee may or might incur with respect to the Mortgaged
Property, or under or by reason of its exercise of rights hereunder, and of and
from any and all claims and demands whatsoever which may be asserted against
Mortgagee by reason of any obligations or undertakings on its part to be
performed or discharged unless due to the negligence or willful misconduct of
Mortgagee, its agents or employees. The Mortgagee shall not have responsibility
for the control, care, management or repair of the Mortgaged Property nor shall
the Mortgagee be responsible or liable for any negligence in the management,
operation, upkeep, repair or control of the Mortgaged Property resulting in loss
or injury or death to any Tenant, licensee, employee or stranger, unless and
until Mortgagee takes possession or control of the Mortgaged Property. No
liability shall be enforced or asserted against the Mortgagee in its exercise of
the powers herein granted to it, and Borrower expressly waives and releases any
such liability except in the event of the gross negligence or willful misconduct
of Mortgagee following Mortgagee's obtaining of title to or possession of the
Mortgaged Property. Should the Mortgagee incur any such liability, loss or
damage, under any of the Leases, or in the defense of any claims or demands,
Borrower, to the fullest extent permitted by law, agrees to reimburse the
Mortgagee within ten (10) days of demand for the amount thereof, including
costs, expenses and reasonable attorneys' fees, and if not so paid then with
interest thereon from date of such payment at the Default Rate.
2.16 Extent of Remedies. In the event that any provision in this Mortgage
shall be inconsistent with any provision of the Act, the provisions of the Act
shall take precedence over the provisions of this Mortgage, but shall not
invalidate or render unenforceable any other provision of this Mortgage that can
be construed in a manner consistent with the Act. If any provision of this
Mortgage shall grant to Mortgagee any rights or remedies upon an Event of
Default of the Borrower which are more limited than the rights that would
otherwise be vested in Mortgagee under the Act, Mortgagee shall be vested with
the rights granted in the Act to the full extent permitted by law. Without
limiting the generality of the foregoing, all expenses incurred by Mortgagee to
the extent reimbursable under Florida law, whether incurred before or after any
decree or judgment of foreclosure, and whether or not enumerated in this
Mortgage, shall be added to the indebtedness secured by this Mortgage or by the
judgment of foreclosure.
2.17 Limited Right of Recovery. Notwithstanding anything contained herein
to the contrary, Mortgagee hereby agrees to limit its rights of recovery under
this Mortgage to Fourteen Million Six Hundred Sixty-Two Thousand Five Hundred
Forty-Two and No/100 Dollars ($14,662,542.00) to the extent advanced under the
Note plus (i) any protection advances which may hereafter be made pursuant to
this Mortgage and (ii) any expenses incurred by Lender in
23
protecting its rights under or in the enforcement of this Mortgage including,
but not limited to, attorneys' fees, court and legal costs).
III
MISCELLANEOUS PROVISIONS
3.1 Heirs, Successors and Assigns Included in Parties. Whenever Borrower
or Mortgagee is named or referred to herein, heirs and successors and assigns of
such person or entity shall be included, and all covenants and agreements
contained in this Mortgage shall bind the successors and assigns of Borrower,
including any subsequent owner of all or any part of the Mortgaged Property, and
inure to the benefit of the successors and assigns of Mortgagee. This Section
3.1 shall not be construed to permit any Transfer or Encumbrance otherwise
prohibited by this Mortgage.
3.2 Notices. Each notice, request, demand, approval, consent, election, or
other communication permitted or required to be given hereunder (each being
herein referred to as a "Notice") shall be in writing, shall be effective for
all purposes if delivered by means of a service, including, but not limited to,
commercial courier or delivery services and the United States Postal Service,
which provides proof of delivery (or attempted delivery, as the case may be),
and shall conclusively be deemed given on the date of actual receipt by the
party to which it is directed, notwithstanding any further direction to the
attention of any individual or department, provided that where provision is made
for the attention of any individual or department, the Notice shall be effective
only if the wrapper in which it is sent is addressed in accordance with such
provision, or on the date such a delivery is attempted but cannot be made
because of a changed address of which no Notice was given, rejection, or other
refusal to accept said delivery. Each party hereto may from time to time
request, as shown below, or by Notice given in the manner aforesaid, that a copy
of any Notice given in accordance with this section be sent to no more than two
(2) additional representatives of the party making such request, addressed in
the manner indicated in such request, in which event the party to whom such
request is made shall send via regular mail, postage prepaid, on the day of
depositing for delivery via mail or courier service any Notice intended for the
party making such request, a copy thereof to the representative so designated,
provided, however, that the effectiveness and date of giving any Notice to any
party shall, for all purposes hereunder, be determined solely by the provisions
of the first sentence of this section. Notices shall be addressed to the
respective parties, as follows or such different addresses as a party shall
hereafter designate in a written notice to the other party:
24
If for Mortgagee: Resort Finance LLC
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx, Vice-President
Telephone No.: (000) 000-0000 x000
Telecopier No.: (000) 000-0000
With a copy to: Resort Finance LLC
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx - Counsel
Telephone No.: (000) 000-0000 x000
Telecopier No.: (000) 000-0000
With a copy to: Xxxxx & XxXxxxxx LLP
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
If for Borrower: Bluegreen Vacations Unlimited, Inc.
c/o Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to: Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to: Xxxxx XxXxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Each party hereto may, from time to time, change the address or name specified
above for it by giving Notice to the other party (or parties, as the case may
be) in accordance with this section.
3.3 Headings; Section References, and Consents. The headings of articles
and sections of this Mortgage are for convenience only, are not to be considered
a part hereof, and
25
shall not limit, expand or otherwise affect any of the terms hereof. Unless
specified otherwise herein, all Consents or approvals required herein shall not
be unreasonably withheld or delayed.
3.4 Invalid Provisions. In the event that any of the covenants,
agreements, terms or provisions contained in the Note, this Mortgage or in any
other Loan Document shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining covenants, agreements, terms or provisions
contained herein or in the Note or in any other Loan Document (or the
application of the covenant, agreement, term held to be invalid, illegal or
unenforceable, to persons or circumstances other than those in respect of which
it is invalid, illegal or unenforceable) shall be in no way affected, prejudiced
or disturbed thereby.
3.5 Amendments. Neither this Mortgage nor any term hereof may be released,
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 release, change, waiver, discharge or termination is sought.
To the extent permitted by law, any agreement hereafter made by Borrower and
Mortgagee relating to this Mortgage shall be superior to the rights of the
holder of any intervening lien or encumbrance. Any holder of a lien or
encumbrance junior to the lien of this Mortgage shall take its lien subject to
the right of Mortgagee to amend, modify or supplement this Mortgage, the Note or
any of the other Loan Documents, to extend the maturity of Borrower's
Liabilities or any portion thereof, to vary the rate of interest chargeable
under the Note and to increase the amount of the indebtedness secured hereby, in
each and every case without obtaining the consent of the holder of such junior
lien and without the lien of this Mortgage losing its priority over the rights
of any such junior lien.
3.6 Governing Law. The place of negotiation, delivery, and payment of this
Mortgage being the State of New York, this Mortgage and the other Loan Documents
shall be governed by and construed in accordance with the laws of that state,
without regard to principles of conflicts of laws, except that the creation,
perfection and enforcement of the liens and security interests with respect to
the Mortgaged Property granted in the Mortgage shall be construed, enforced and
governed by and in accordance with the laws of the State of Florida, without
regard to principles of conflicts of laws.
3.7 Releases. Mortgagee, without notice, and without regard to the
consideration, if any, paid therefor, and notwithstanding the existence at that
time of any inferior liens, may release any part of the Mortgaged Property or
any person liable for any indebtedness secured hereby, without in any way
affecting the liability of any party to the Note and this Mortgage or guaranty,
if any, given as additional security for the indebtedness secured hereby and
without in any way affecting the priority of the lien of this Mortgage, and may
agree with any party obligated on said indebtedness herein to extend the time
for payment of any part or all of the indebtedness secured hereby. Such
agreement shall not, in any way, release or impair the lien created by this
Mortgage, or reduce or modify the liability, if any, of any person or entity
personally obligated for the indebtedness secured hereby, but shall extend the
lien hereof as against the title of all parties having any interest in said
security which interest is subject to the indebtedness secured by this Mortgage.
Mortgagee shall issue one or more partial releases, to the extent specified in
the Loan Agreement.
26
3.8 Future Advances; Protective Advances. This Mortgage is given to secure
not only existing indebtedness, but also all future advances (whether such
advances are obligatory or are to be made at the option of Mortgagee, or
otherwise) as are made by Mortgagee within twenty (20) years of the date of this
Mortgage, to the same extent as if such future advances were made on the date of
the execution of this Mortgage, even though there may be no indebtedness
outstanding at the time any such advance is made. The total amount of
indebtedness that may be so secured may decrease or increase from time to time,
but all indebtedness secured hereby shall in no event, exceed the amount equal
to two (2) times the original principal sum of the Note as specified in the
preamble paragraph of this Mortgage. All advances, disbursements and
expenditures made by Mortgagee before and during a foreclosure, and before and
after judgment of foreclosure, and at any time prior to sale, and, where
applicable, after sale, and during the pendency of any related proceedings, for
the purposes authorized by this Mortgage or by the Act, shall have the benefit
of all applicable provisions of the Act.
3.9 Time is of the Essence. It is specifically agreed that time is of the
essence of this Mortgage.
3.10 Covenants to Run with the Land. All the covenants of this Mortgage
shall run with the Land.
3.11 Default Rate. The term "Default Rate," as used herein, means the same
as it does under, and as defined in, the Note.
3.12 Disbursements of Proceeds of the Note for Construction of
Improvements; Construction Mortgage. This Mortgage secures an obligation
incurred for the construction of an improvement on land and is a "construction
mortgage" as that term is used in the UCC. Under the Loan Agreement, Mortgagee
has bound itself to make advances up to the amount of the Note on the terms and
conditions therein specified. All advances made and indebtedness arising and
accruing under the Loan Agreement, from time to time, whether or not the total
amount thereof may exceed the face amount of the Note, shall be secured hereby.
3.13 Waiver of Jury Trial. MORTGAGOR AND MORTGAGEE EACH HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS
DOCUMENT, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN MORTGAGEE AND
MORTGAGOR. THIS PROVISION IS A MATERIAL INDUCEMENT TO MORTGAGEE TO PROVIDE THE
FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
3.14 JOINDER. Mortgagee agrees to join in by execution of documents as
reasonably requested by Borrower such as but not limited to declaration of
condominium, timeshare documentation, zoning or other governmental petitions all
made necessary for the contemplated Improvements and subject to such
documentation being in form and content reasonably acceptable to Mortgagee.
27
IN WITNESS WHEREOF, Borrower has caused this instrument to be executed by
its duly authorized officers as of the day and year first above written.
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
WITNESSES By:____________________________________
____________________________________ Name:_______________________________
(Name) Title:______________________________
____________________________________
(Name)
STATE OF ____________ )
) SS.
COUNTY OF __________ )
This instrument was acknowledged before me on ____________, 2005 by
_______________________________, as ____________________________, of Bluegreen
Vacations Unlimited, Inc., and by _____________________ and
________________________, as witnesses to the signature of such officer of
Bluegreen Vacations Unlimited, Inc.
__________________________________
Notary Public
28
EXHIBIT A
Legal Description of Land
Parcel A
Lots 10, 11, 12, 13 14 and 00, Xxxxx 00, XXXXX'X XXXXX XXXXX, as per Map in Map
Book 1, Page 115, in the Public Records of Volusia County, Florida.
Parcel B
A part of Section 35, Township 15 South, Range 33 East, Volusia County, Florida,
described as follows:
From the Southeast corner of Xxx 00, Xxxxx 00, XXXXX'X XXXXX XXXXX, as recorded
in Map Book 1, Page 115, of the Public Records of Volusia County, Florida, as
the Point of Beginning, run North 24(Degree) 53'20"West along the East line of
Lots 10 through 15, Block 12, said ROGER'S NORTH ORITA, a distance of 300.54
feet to the North line of said Xxx 00, Xxxxx 00; thence North 61(Degree)00'7"
East, along the Easterly projection of the North line of said Xxx 00, Xxxxx 00;
a distance of 66.36 feet to the Easterly edge of a concrete seawall; thence
South 25(Degree) 37'57" East, along the Easterly edge of the concrete seawall, a
distance of 300.52 feet; thence departing the Easterly edge of said concrete
seawall, run South 61(Degree) 11'41" West, along the Westerly projection of the
South line of said Xxx 00, Xxxxx 00, a distance of 70.24 feet to the Point of
Beginning.
PIN: 5334-02-12-0100
EXHIBIT B
Permitted Encumbrances
1. General taxes for the year 2005 and subsequent years.
