Prepared by and
Upon recording return to:
G. Xxxx Xxxxxx, Esq.
Xxxxx & Xxxxxx, P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT is made on 23rd day of May, 2002 by
BANSGROVE LIMITED, a company organized under the laws of the British Virgin
Islands having an address c/o Xxxx Xxxxxxxxx, Esq., Xxxxxxxxx Xxxxxxxxx &
Magolnick, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000
("Mortgagor"), and delivered to UNIVERSAL BEVERAGES HOLDINGS CORPORATION, a
Florida corporation having an address at: 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
00000 ("Mortgagee").
Background
Mortgagor is the holder, by assignment of certain foreclosure judgments
("Judgments") against Mortgagee. Rather than exercising its right of
foreclosure, Mortgagor has this date entered into a Purchase and Sale Agreement
(the "Purchase Agreement") pursuant to which it has acquired the Mortgage
Property (as defined below) from Mortgagee. As consideration therefor, Mortgagor
has cancelled the Judgment and executed and delivered to Mortgagee a promissory
note in the principal sum of ONE MILLION SIXTY ONE THOUSAND ONE HUNDRED THREE
AND 00/100 ($1,061,103.00) DOLLARS as evidenced by that certain Promissory Note
("Note") of even date herewith made by Mortgagor payable to the order of
Mortgagee, in the original principal amount of $1,061,103.00, maturing June 1st,
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2004, which Note, together with any and all renewals, replacements, extensions,
modifications, substitutions, consolidations, and any and all other certificates
or evidences of the indebted-ness evidenced by such Note, are herein jointly and
severally called "the Note." Mortgagor's payment of the Note is secured by this
Mortgage.
1. DEBT. In addition, Mortgagor, as Landlord, and Mortgagee, as Tenant, have
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entered into a Lease of even date herewith (the "Lease"), pursuant to which
Mortgagor has leased the Mortgage Property to Mortgagee. The obligations secured
by this Mortgage are as follows (jointly and severally, the "Indebtedness"):
(a) NOTE. Payment of all sums from time to time evidenced by the Note; and
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(b) ADVANCES. Any sums properly advanced by Mortgagee in the manner provided in,
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or for the protection of the security of, this Mortgage, including all sums
advanced pursuant to Paragraphs 7 or 8 of this Mortgage; and
(c) COSTS. All costs, expenses, losses, and damages sustained or incurred by
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Mortgagee because of any default in payment or performance as the case may be,
of any provision contained in the Note, or in realizing on, protecting,
perfecting, defending, or enforcing, or any combination, the security of this
Mortgage, including reasonable Attorneys' Fees in connection with enforcement of
this Mortgage or in response to any request for any action on the part of
Mortgagee by Mortgagor regardless of whether a lawsuit is brought, and for all
administrative, trial, and appellate proceedings, if any.
As used in this Mortgage, the term "this Mortgage" includes any and all
amendments, modifications, extensions, renewals, replacements, substitutions,
and consolidations of this Mortgage. Mortgagor will pay the Indebtedness and
perform other covenants, as the case may be, in accordance with the terms and
provisions of this Mortgage, the Note, and the Lease executed between Mortgagor
and Mortgagee of even date herewith.
2. SECURITY. In consideration of the indebtedness evidenced by the Note and
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other valuable considerations, the receipt and sufficiency of which are hereby
jointly and severally acknowledged, Mortgagor does hereby grant, bargain, sell,
alien, remise, release, convey, assign, and confirm to Mortgagee and its
successors and assigns, and does hereby grant to Mortgagee and its successors
and assigns, the benefit of a lien on, and a security interest in, Mortgagor's
fee simple ownership interests in all of the following property, whether real,
personal, or mixed, tangible or intangible, and whether now or hereafter
existing, to the extent and on the terms and conditions set forth in this
Mortgage:
(a) LAND. The Land referred to in this Mortgage and Security Agreement described
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as follows:
SEE EXHIBIT "A"
(b) IMPROVEMENTS. All buildings, structures, betterments, and other improvements
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owned by Mortgagor of any nature now or hereafter situated in whole or in part
on the Land, regardless of whether physically affixed to the Land or severed or
capable of severance from the Land (the "Improvements").
(c) APPURTENANCES. The benefit of all easements, tenements, hereditaments, and
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appurtenances and other rights of any nature whatsoever in the Land or the
Improvements or both, including the benefit of all rights of way, streets,
alleys, passages, railroad sidings, drainage rights, sewer rights, and rights of
ingress and egress to the Land and all adjoining property, whether now existing
or hereafter arising, together with the reversion or reversions, remainder or
remainders, rents, issues, incomes, and profits of any of the foregoing.
(d) TANGIBLE PROPERTY. All of Mortgagor's right, title, and interest in and to
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all fixtures, equipment, and tangible personal property of any nature whatsoever
owned by Mortgagor that is hereafter (i) attached or affixed to the Land, the
Improve-ments, or both, (ii) situated on or about the Land, the Improvements, or
both, regardless of whether physically affixed to the Land, severed, or capable
of severance from the Land, or (iii) used, usable, and intended to be used in
connection with any present or future use or operation of or on the Land,
regardless of where situated. The foregoing includes without limitation all
signs and displays; all machinery and equipment used by Mortgagor or any
affiliate and/or subsidiary as the case may be in the operation of the
Mortgagor's business,-- all heating, air conditioning, lifting, incinerating,
and power equipment; all engines, compressors, pipes, pumps, tanks, motors,
conduits, wiring, and switchboards; all plumbing, lighting, cleaning, fire
prevention, fire extinguishing, refrigerating, ventilating, and communications
apparatus; all boilers, furnaces, oil burners, vacuum cleaning systems,
elevators, and escalators; all stoves, ovens, ranges, disposal units,
dishwashers, water heaters, exhaust systems, refrigerators, cabinets, and
partitions; all rugs, draperies, and carpets; all laundry equipment; all
building materials; all furniture, furnishings, office equipment, and office
supplies (including stationery, letterheads, xxxx heads, and items of a similar
nature); and all additions, accessions, renewals, replacements, and
substitutions of any or all of the foregoing. The items of property encumbered
by this subparagraph are individually and collectively referred to as the
"Tangible Property."
(e) PROCEEDS. Subject to the provisions of Paragraphs 11 and 12 of this
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Mortgage, all proceeds of the conversion, voluntary or involuntary, of any of
the property encumbered by this Mortgage into cash or other liquidated claims,
or that are otherwise payable for injury to, or the taking or requisitioning of,
any such property, including all insurance and condemnation proceeds as provided
in this Mortgage.
(f) CONTRACT RIGHTS AND ACCOUNTS. All of Mortgagor's right, title and interest
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in and to any and all assignable contracts, written or oral, express or implied,
now existing or hereafter entered into or arising in any manner related to the
improvement, use, operation, sale, conversion, or other disposition of any
interest in the Land, Improvements, Tangible Property, or any combination,
including any and all deposits, prepaid items, and payments due and to become
due thereunder, and including construction contracts, service contracts,
advertising contracts, purchase orders, and equipment leases; but reserving to
Mortgagor the use and benefit of all such contracts, deposits, prepaid items,
payments, and proceeds, unless and until Mortgagor defaults under this Mortgage.
Notwithstanding the foregoing, Mortgagee will not be bound by any of Mortgagor's
obligations under any of the foregoing contracts unless and until Mortgagee
elects to assume them in writing.
(g) OTHER INTANGIBLES. All contract rights, accounts, instruments, and general
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intangibles, as such terms from time to time are defined in the Uniform
Commercial Code as adopted in Florida, in any manner related to the use,
operation, sale, conversion, or other disposition (voluntary or involuntary) of
the Land, Improvements, Tangible Property, including all permits, licenses,
insurance policies, rights of action, and other choses in action.
The Land, Appurtenances, Improvements, and Tangible Property are jointly and
severally called the "Mortgage Property" in this Mortgage. The portion of the
property encumbered by this Mortgage that from time to time consists of
intangible personal property, is referred to as the "Intangible Collateral." All
such Mortgage Property, Intangible Collateral, and all other security described
in this section are sometimes hereinafter and in the Note referred to as the
"Security." Wherever used in this Mortgage, the use of the terms "Security,"
"Mortgage Property," and "Intangible Collateral" means and includes all or any
portion thereof that may be or is applicable in the context in which such term
is used.
3. SECURITY AGREEMENT. To the extent any of the property encumbered by this
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Mortgage from time to time constitutes personal property subject to the
provisions of the Uniform Commercial Code as adopted in Florida, this Mortgage
constitutes a "Security Agreement" for all purposes under the Code. Without
limitation, Mortgagee, at its election, on any Event of Default under this
Mortgage, will have all rights, powers, privileges, and remedies from time to
time available to a secured party under the provisions of the Code with respect
to such property. Notwithstanding any provision of this Mortgage to the
contrary, Mortgagor may remove, dispose of, or both remove and dispose of, in
any manner, any portion of the Tangible Property and have and retain the
proceeds from any such disposition to Mortgagor's exclusive use and benefit, as
long as (i) such removal and/or disposition will not materially and adversely
affect the operation of the Mortgage Property for its intended purposes; and
(ii) Mortgagor immediately furnishes Mortgagee with substitute collateral of
equal or better quality and value; and (iii) an Event of Default has not
occurred under this Mortgage; and (iv) any and all damage to the Land,
Improvements, and other Tangible Property resulting from such removal and/or
substitution, is promptly repaired at Mortgagor's cost; and (v) such disposition
is not as security for the performance of an obligation; and (vi) Mortgagee's
prior written consent is obtained for any removal that requires any structural
alterations or repairs to the Land, the Improvements, or both, or any removal of
any Tangible Property that, singly or in the aggregate, has a replacement cost
of more than $5,000.00 or $20,000.00 in the aggregate except in connection with
direct substitutions or replacements requiring no structural alterations or
repairs.
3.1 SECURITY. Notwithstanding the foregoing or any other provision of this
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Mortgage to the contrary, Mortgagor and Mortgagee intend and agree that, unless
and until Mortgagee affirmatively elects otherwise, all right, title, and
interest of Mortgagor in and to the Security (excepting only furniture,
furnishings, office equipment, and office supplies) constitutes an interest in
real property for all purposes, regardless of whether (i) any or all such
property is physically attached to the Land or Improvements; (ii) serial numbers
are used to identify certain items thereof; or (iii) such items are referred to,
generally or specifically, in any financing statement filed or recorded at any
time. Without limitation, the parties intend and agree that the inclusion of the
Security or any rights therein or proceeds thereof in any such financing
statement will not operate to alter any of Mortgagee's rights as determined by
this Mortgage or otherwise available at law or in equity, or to impair the
priority of the lien or security interest granted by this Mortgage. The parties
instead intend and agree that, unless and until Mortgagee affirmatively elects
otherwise, the inclusion of any or all such items in any such financing
statement is for the sole purpose of Mortgagee's protection only if, as, and
when it is or may be deter-mined that notice of Mortgagee's priority of interest
in any or all such property, to be effective against a particular class of
persons (including the federal government and any subdivisions or entity of the
federal government), must be perfected in the manner required by the Uniform
Commercial Code as adopted in Florida.
4. AFTER-ACQUIRED PROPERTY. Without the necessity of any further act of
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Mortgagor or Mortgagee, the lien of, and security interest created by, this
Mortgage automatically will extend to and include (a) any and all renewals,
replacements, substitutions, accessions, proceeds, products, or additions of or
to the Security; and (b) any and all money and other property that from time to
time, either by delivery to Mortgagee or by any instrument (including this
Mortgage), may be subjected to such lien and security interest by Mortgagor, or
by anyone on behalf of Mortgagor, or with the consent of Mortgagor, or that
otherwise may come into the possession or otherwise be subject to the control of
Mortgagee pursuant to this Mortgage.
5. TITLE WARRANTIES. Mortgagor covenants with Mortgagee and its successors and
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assigns (including any person who acquires all or any portion of the Security by
foreclosure of the lien of this Mortgage or by deed or other proceeding in lieu
thereof) that (a) Mortgagor has good and marketable title to the Security, and
is indefeasibly seized of the Improvements and such of the Tangible Property as
constitutes, or is or may be determined to be, fixtures or equipment, in fee
simple; (b) Mortgagor has full power, lawful right, and authority to convey such
estate and title as set forth in this Mortgage and to encumber the same with the
lien of this Xxxx-xxxx; (c) Mortgagor has the full power, lawful right, and full
authority to grant Mortgagee a prior perfected security interest in all portions
of the property described in this Mortgage that may constitute property subject
to the pro-visions of the Uniform Commercial Code as adopted in Florida; and (d)
other than those liens, encumbrances and security interests of record or
otherwise previously disclosed to Mortgagee the Security is free and clear of
all liens, encumbrances, and security interests of any nature except for the
lien of taxes and assessments not yet due and payable.
6. LIENS. Other than those liens, encumbrances and security interests of record
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or created by Mortgagee, or otherwise previously disclosed to Mortgagee,
Mortgagor will not create, or permit to be created or remain, without
Mortgagee's prior written consent, and will promptly discharge, any and all
liens or encumbrances on, or security interests in, the Security or any
combination or part thereof created by Mortgagor, whether consensual, common
law, statutory, voluntary, involuntary, or arising by operation of law.
Notwithstanding the foregoing, Mortgagor may contest the amount, validity, and
enforceability of any involuntary or nonconsensual lien, encumbrance, or
security interest, including those arising by operation of law, in the manner
provided in Paragraph 10, with the exception of such liens as are in existence
as of the date hereof or are created by the action or inaction of Mortgagee.
7. FURTHER ASSURANCES. Mortgagor from time to time will execute, acknowledge,
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-------------------
subscribe, and deliver to or at the direction of Mortgagee such further
assurances as Mortgagee may require for the purpose of evidencing, perfecting,
or confirming the lien and security interest created by this Mortgage. Without
limitation of the foregoing, Mortgagor will defend, indemnify, and hold
Mortgagee harmless with respect to any lawsuit or proceeding in which the
validity, enforceability, or priority of the lien or security interest or both,
created by this Mortgage is endangered or attacked, directly or indirectly. If
Mortgagor fails to undertake the defense of any such claim in a timely manner,
or fails to furnish Mortgagee with reasonable security for such defense, or, in
Mortgagee's sole determination, fails to prosecute such defense with due
diligence and by appropriate proceedings, Mortgagee is authorized to take, at
the expense of Mortgagor, all necessary and proper action in defense of any such
claim, including the retention of legal counsel, the prosecution or defense of
litigation, and the compromise or discharge of claims, including payment of all
costs and reasonable attorneys' and legal assistants' fees. Any costs, expenses,
and losses so incurred by Mortgagee, including reasonable attorneys' fees and
legal assistants' fees, regardless of whether a lawsuit is brought, and for all
administrative trial and appellate proceedings, if any, will constitute advances
by Mortgagee as provided in the following paragraph.
8. REMEDIAL ADVANCES. If Mortgagor defaults in the observance or performance of
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any of the provisions of this Mortgage, Mortgagee, without waiving or otherwise
impairing any other right or remedy of Mortgagee, at its sole option but without
obligation to do so, and without demand on Mortgagor, may make such payment or
take such action as Mortgagee deems necessary or appropriate to correct such
default or to protect the security of this Mortgage. All payments so made,
together with all costs and expenses so incurred, will be added to the principal
amount due under the Note and thereafter will bear interest at the rate then
payable as provided for in the Note, and will be secured by the lien and
security interest granted by this Mortgage. For the foregoing purposes,
Mortgagee is authorized to enter onto the Mortgage Property; to appear in and
defend any action or proceeding purporting to affect the security of this
Mortgage, or of Mortgagee's rights or powers thereunder; to pay, purchase,
contest, or compromise any encumbrance, charge, or lien that in the reasonable
judgment of Mortgagee appears to adversely affect the Security; and to take
whatever other action Mortgagee in its discretion deems necessary or appropriate
in exercising any such rights. Mortgagor immediately and without demand will pay
all sums so expended by Mortgagee, with interest from the date of each such
expenditure at the rate then payable as provided in the Note.
9. IMPOSITIONS. Mortgagee will pay or cause to be paid when due (a) all property
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taxes, assessments, water, sewer, utility, and other rents, rates, and charges,
including all excises, taxes, levies, license fees, permit fees, and other fees
and charges, whether general or special, ordinary or extraordinary, foreseen or
unforeseen, that may be assessed, levied, or imposed on the Security, or any
combination, or otherwise arising with respect to the occupancy, use,
possession, or disposition thereof, whether or not the failure to pay the same
might result in the creation of a lien on the Security; (b) all franchise,
excise, and other taxes, fees, and charges assessed, levied, or imposed with
respect to Mortgagor's right to do business on or from the Mortgage Property;
(c) all taxes and fees (except for state and federal income taxes and state
intangible taxes on the Indebtedness levied by any state other than Florida,
unless any such tax is in lieu of, or a credit against, any other tax payable by
Mortgagor) that may be levied by the United States or any state or political
subdivision of the United States on Mortgagee in connection with or on this
Mortgage, or the Indebtedness, or its payment, or collection, or any
combination; and (d) all lawful claims and demands of mechanics, laborers,
material suppliers, and others that, if unpaid, might result in the creation of
a lien on the Security. The items payable under this paragraph are individually
and collectively called "Impositions"; and except as hereinafter provided,
nothing contained in this paragraph will require the payment of any Imposition
as long as the amount, validity, or enforceability thereof is contested by
appropriate proceedings, as provided in the following paragraph. Mortgagee will
pay the state and local real and tangible personal property taxes.
10. CONTESTS. Mortgagee may contest, by any and all appropriate administrative,
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trial, or appellate proceedings, or any combination, and in Mortgagor's name, if
required by law, the amount, validity, enforceability, or application of any
Imposition, legal requirement, or other obligation that Mortgagor is required to
pay or perform to any person or entity other than Mortgagee by any provision of
this Mortgage if and only for as long as (a) such contest suspends the
collection or enforcement of the items contested; (b) no part of the Security
will be subject to loss, sale, or forfeiture before final determination of any
such contest; (c) neither Mortgagor nor Mortgagee will be subject to any
criminal liability; (d) Mortgagor furnishes such security as may be required by
law in connection with each such contest; (e) the value, usefulness, and
marketability of the Mortgage Property will not be adversely impaired by any
such contest; (f) Mortgagor otherwise continues to pay or perform, as the case
may be, the Indebtedness as required by this Mortgage; (g) Mortgagor otherwise
is not in default under any provision of this Mortgage; (h) each such contest is
continuously prosecuted diligently to final determination; (i) Mortgagor pays,
or causes to be paid, and defends, indemnifies, and holds Mortgagee harmless
against and from, any and all losses, judgments, decrees, and costs (including
all reasonable attorneys' fees) incurred in connection with each such contest;
(j) Mortgagor, promptly following final determination of each such contest,
fully pays and discharges all amounts that may be levied, assessed, charged,
imposed, or otherwise determined to be payable, together with all penalties,
fines, interest, costs, and expenses, and otherwise complies with such final
determination at Mortgagor's sole cost and expense; and (k) if Mortgagor has
failed to comply with the requirements of clause (d) hereof, or if Mortgagor is
not required by law to furnish security pursuant to clause (d) hereof, Mortgagor
furnishes Mortgagee with such security as Mortgagee reasonably may require to
ensure Mortgagor's compliance with all of the foregoing requirements. As long as
Mortgagor complies with the foregoing and Mortgagee is promptly reimbursed for
all costs and expenses incurred, Mortgagee will cooperate with Mortgagor in
connection with any such contest.
11. CONDEMNATION. If all or any part of the Security or any interest in or right
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accruing to it, or any combination, is taken as a result of, or in lieu or in
anticipation of, the exercise of the right of condemnation or eminent domain, or
by reason of the temporary requisition of the use or occupancy of the Mortgage
Property, in any event by any govern-mental or quasi-governmental authority,
civil or military, or any other party entitled to exercise such powers by law,
general or special, or if it is devalued or otherwise adversely affected by any
of the foregoing actions, all proceeds payable with respect to any such action
shall be disbursed in accordance with the schedule set forth in paragraph 8 of
the Note.
12. PROCEEDS. All proceeds payable with respect to any casualty loss or
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condemnation involving the Mortgage Property, as provided in the preceding two
paragraphs, or for any private trespass or other injury to, or devaluation of,
the Security or any combination, shall be disbursed in accordance with the
schedule set forth in paragraph 8 of the Note.
13. CONDITION. Intentionally omitted.
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14. DEFAULT. The occurrence of any of the following (time being of the essence
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as to this Mortgage and all of its provisions) constitutes a default by
Mortgagor under this Mortgage:
(a) Scheduled Payment . Mortgagor's failure to make any payment required by the
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Note within 10 days of the date such payment is due, without notice or demand.
(b) Monetary Default. Mortgagor's failure to make any other payment required by
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this Mortgage within 10 days after demand.
(c) Other. Mortgagor's continued failure to perform any other obligation imposed
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on Mortgagor by this Mortgage, or the occurrence or nonoccurrence of any other
event that expressly constitutes a default under any provision of this Mortgage,
except those specified in the following sub-paragraphs, for a period of twenty
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20 days after demand; provided (i) if Mortgagor reasonably cannot perform within
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such twenty 20-day period, and Mortgagee's security reasonably will not be
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impaired, Mortgagor may have such additional time to perform as Mortgagor
reasonably may require, provided and for so long as Mortgagor proceeds with due
diligence; and (ii) if Mortgagee's security reasonably will be materially
impaired if Mortgagor does not perform in less than twenty 20 days, Mortgagor
will have only such period following demand in which to perform as Mortgagee
reasonably may specify.
(d) Representation. If any representation or warranty of Mortgagor or Guarantor
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(as hereinafter defined) contained in this Mortgage, or in any certificate
delivered pursuant hereto or thereto, or in any other instrument or statement
furnished in connection with the Loan, herewith or therewith, proves to be
incorrect or misleading in any material respect as of the time when the same
shall have been made, including, without limitation, any and all financial
statements furnished by Mortgagor to Mortgagee as an inducement to Mortgagee's
making the loan evidenced by the Note or hereafter furnished pursuant to any
provision of this Mortgage or the Loan Agreement.
(e) Bankruptcy. If Mortgagor, any of its Affiliates or Subsidiaries-, or any
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guarantor of the Indebtedness (hereinafter "Guarantor") files a voluntary
petition in bankruptcy or for reorganization or an arrangement pursuant to the
Federal Bankruptcy Code or any similar law, federal or state, now or hereafter
in effect, or makes an assignment for the benefit of creditors, or admits in
writing its inability to pay its debts as they become due, or suspends payment
of its obligations, or takes any action in furtherance of the foregoing; or if
Mortgagor, Affiliates or Subsidiaries, or Guarantor consents to the appointment
of a receiver, trustee, liquidator, or other similar representative of
Mortgagor, Affiliates or Subsidiaries, or Guarantor or of the Mortgage Property,
or any of them; or if a petition or an answer proposing an adjudication of the
Mortgagor, Affiliates or Subsidiaries, or Guarantor as a debtor, or proposing
Mortgagor's or Affiliates or Subsidiaries or Guarantor's reorganization pursuant
to the Federal Bankruptcy Code or any similar law, federal or state, now or
hereafter in effect, is filed in and approved by any court of competent
jurisdiction and the order approving it is not vacated or stayed within 60 days
from entry; or if Mortgagor, Affiliates or Subsidiaries, or Guarantor consents
to the filing of any such petition or answer, or fails to deny the material
allegations of the same in a timely manner.
(f) Judgments. With the exception of judgments on liens against the Mortgage
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Property existing of record as of the date hereof, if (i) final judgment, other
than a final in connection with any condemnation, and including any judgment or
other final determination of any contest permitted by Paragraph 10 of this
Mortgage, is entered against Mortgagor that in the sole opinion of Mortgagee (a)
adversely affects the value, use, or operation of the Security, or (b) adversely
affects, or reasonably may tend to adversely affect, the validity,
enforceability, or priority of the lien or security interest created by this
Mortgage; or (ii) execution or other final process issues thereon with respect
to Security; and (iii) Mortgagor does not discharge the same or provide for its
discharge in accordance with its terms or procure a stay of execution thereon,
in any event, within 60 days from entry of execution, or shall not within such
period, or such longer period during which execution on such judgment shall have
been stayed, appeal therefrom or from the order, decree, or process on or
pursuant to which such judgment shall have been entered and cause its execution
to be stayed during such appeal, or if on appeal such order, decree, or process
shall be affirmed and Mortgagor shall not discharge such judgment or provide for
its discharge in accordance with its terms within 60 days after the entry of
such order or decree of affirmation, or if any stay of execution on appeal is
released or otherwise discharged.
(g) Liens. Other than liens of record as of the date hereof, if any federal,
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state, or local tax lien or any claim of lien for labor or materials, or any
other lien or encumbrance of any nature whatsoever is recorded against Mortgagor
or the Security, and is not removed by payment or transferred to substitute
security in the manner provided by law within fifteen 15 days by Mortgagee, or
contested by Mortgagor in the manner provided by Paragraph 10.
15. REMEDIES. Upon the occurrence of any default under this Mortgage, as
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provided in the preceding paragraph, and continuation beyond any applicable
curative period (an "Event of Default"), but not before, Mortgagee without
notice may, subject to the provisions of the Note and Lease, exercise any one or
more of the following rights and remedies, in addition to all other rights and
remedies otherwise available at law or in equity, including statutes enacted
after the effective date of this Mortgage:
(a) Acceleration. Declare the entire unpaid amount of the Indebtedness
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immediately due and payable.
(b) Foreclosure. Foreclose the lien of this Mortgage or obtain possession of the
-----------
Mortgage Property or both, by any lawful procedure.
(c) Code Rights. Exercise any right or remedy available to Mortgagee as a
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secured party under the Uniform Commercial Code as it is from time to time in
force and effect in Florida, with respect to any portion of the Security then
constituting property subject to the provisions of such Code; or, at Mortgagee's
option, treat the Security or any combination as real property or an interest
therein for remedial purposes.
(d) Other Security. Proceed to realize on any and all other security for the
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Indebtedness in such order as Mortgagee may elect; and no such action, lawsuit,
proceeding, judgment, levy, execution, or other process will constitute an
election of remedies by Mortgagee, or will in any manner alter, diminish, or
impair the lien and security interest created by this Mortgage.
(e) Advances. Advance such money and take such other action as is authorized by
Paragraphs 7 and 8.
16. WAIVER OF CERTAIN RIGHTS. To the extent permitted by law, Mortgagor agrees
------------------------
that it will not at any time insist on, plead, or in any manner whatever claim
or take any benefit or advantage of, any applicable present or future stay,
extension, or moratorium law that may affect Mortgagor's performance of the
provisions of this Mortgage, or any of Mortgagee's rights or remedies. Mortgagor
will not claim, take, or insist on any benefit or advantage of any present or
future law providing for the valuation or appraisal of the Security, or any
portion, before any sale or sales that may be made under or by virtue of this
Mortgage. To the extent permitted by law Mortgagor expressly waives all benefit
or advantage of any such law or laws, and agrees not to hinder, delay, or impede
the exercise of any right or remedy permitted to be executed by Mortgagee but to
suffer and permit the exercise of every such right or remedy as though no such
law or laws were in effect. Mortgagor, for itself and all who may claim under
it, waives, to the extent permitted by law, all rights to have the Security, and
any other security for the Indebtedness, marshaled upon any foreclosure or
otherwise.
17. OTHER RIGHTS. No right or remedy conferred on or reserved to Mortgagee by
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this Mortgage is intended to be exclusive of any other right or remedy; and each
and every right and remedy is cumulative and in addition to any other right or
remedy otherwise available. Every right, power, privilege, and remedy granted
Mortgagee by this Mortgage, or otherwise available at law or in equity, may be
exercised by Mortgagee from time to time as often as Mortgagee deems expedient
until the Indebtedness is paid in full. Mortgagee's failure to insist at any
time on the strict observance or performance by Mortgagor of any of the
provisions of this Mortgage, or to exercise any right or remedy provided for in
this Mortgage, will not impair any such right or remedy, nor be construed as a
waiver or relinquishment thereof for the future, unless agreed otherwise by
Mortgagee in writing. Receipt by Mortgagee of any payment required to be made
pursuant to this Mortgage, with knowledge of the breach of any provision of this
Mortgage, will not constitute a waiver of such breach unless agreed otherwise by
Mortgagee in writing. In addition to all other remedies provided in this
Mortgage, Mortgagee will be entitled, to the extent permitted by applicable law,
to injunctive relief in the case of a violation, or attempted or threatened
violation, of any of the provisions of this Mortgage, or to an order coercing
performance of any of the provisions of any of the foregoing.
18. RELEASE BY MORTGAGEE. Mortgagee from time to time without notice to any
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person and without affecting the liability of Mortgagor or of any other person
(other than any person expressly released by Mortgagee in writing) for the
payment of any of the indebtedness, and without affecting the priority or extent
of the lien and security interest of this Mortgage (except as to property
specifically released by the Mortgagee in writing), may do any or all of the
following: (a) release in whole or in part any person liable for payment of any
or all of the Indebtedness; (b) extend the time for payment of the Indebtedness,
in whole or in part; (c) accept additional or substitute security of any kind;
(d) consent to the creation of any easement in, on, or over the Security or any
covenant restricting the use or occupancy of the Security; or (e) release or
otherwise deal with the Security.
19. ESTOPPEL LETTERS. As and when from time to time requested by Mortgagee,
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Mortgagor will execute and deliver, or cause to be executed and delivered, to or
at the direction of Mortgagee such estoppel letters, certifying such matters
relating to this Mortgage, as Mortgagee may require. Upon 5 days' prior request
by Mortgagor, Mortgagee from time to time will execute and deliver to or at the
direction of Mortgagor an estoppel letter, certifying such matters relating to
this Mortgage as Mortgagor reasonably may request.
20. NO TRANSFER. Intentionally omitted.
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21. SATISFACTION. The lien and security interest provided by this Mortgage will
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continue unimpaired and in full force and effect unless and until the
Indebtedness is paid in full, or the Security has been fully released by
Mortgagee, whereupon such lien and security interest will be without further
force or effect.
22. ATTORNEY-IN-FACT. Mortgagor hereby irrevocably appoints Mortgagee and its
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successors and assigns, as its attorney-in-fact, which agency is coupled with an
interest, (a) to execute and/or record any notices of completion, cessation of
labor or any other notices that Mortgagee deems appropriate under the terms of
this Mortgage, the Note and the Lease, to protect Mortgagee's interest, if
Mortgagor shall fail to do so within ten (10) days after written request by
Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this
Mortgage or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment, conveyance or further assurance with respect to the
Leases, Personalty, Fixtures, Plans and Property Agreements in favor of the
grantee of any such deed and as may be necessary or desirable for such purpose,
(c) to prepare, execute and file or record financing statements, continuation
statements, applications for registration and like papers necessary to create,
perfect or preserve Mortgagee's security interests and rights in or to any of
Security, and (d) while any Event of Default exists, to perform any obligation
of Mortgagor hereunder; however: (i) Mortgagee shall not under any circumstances
be obligated to perform any obligation of Mortgagor; (ii) any sums advanced by
Mortgagee in such performance shall be added to and included in the Indebtedness
and shall bear interest at the Default Rate; (iii) Mortgagee as such
attorney-in-fact shall only be accountable for such funds as are actually
received by Mortgagee; and (iv) Mortgagee shall not be liable to Mortgagor or
any other person or entity for any failure to take any action which it is
empowered to take under this Section.
23. MISCELLANEOUS.
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(a) Time of the Essence. Time is of the essence with respect to this Mortgage
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and Security Agreement.
(b) Successors and Assigns. This Mortgage and Security Agreement shall be
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binding upon and inure to the benefit of Mortgagor and Mortgagee and their
respective successors and assigns, provided that Mortgagor shall not assign any
rights, duties or obligation hereunder.
(c) Singular and Plural. Words used in this Mortgage in the singular, where the
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context so permits, shall be deemed to include the plural and vice versa. The
definitions of words in the singular in this Mortgage shall apply to such words
when used in the plural where the context so permits and vice versa.
(d) Phrases. Except as otherwise expressly provided herein, when used in this
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Mortgage, the phrase "including" shall mean: including, but not limited to," the
phrase "satisfactory to Mortgagee" shall mean "in form and substance
satisfactory to Mortgagee in all respects," the phrase "with Mortgagee's
consent" or "with Mortgagee's approval" shall mean "such consent or approval at
Mortgagee's sole discretion", and the phrase "acceptable to Mortgagee" shall
mean "acceptable to Mortgagee at Mortgagee's sole discretion."
(e) Exhibits and Schedules. The exhibits and schedules attached to this Mortgage
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and Security Agreement are incorporated herein and shall be considered a part of
this Mortgage and Security Agreement for the purposes stated herein.
(f) Titles of Articles, Sections and Subsections. All titles or headings to
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articles, sections, subsections or other divisions of this Mortgage, are only
for the convenience of the parties and shall not be construed to have any effect
or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
(g) Governing Law. This Mortgage shall be governed by and construed in
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accordance with the laws of the State of Florida and the applicable laws of the
United States of America.
(h) Entire Agreement. This Mortgage, together with the Note, Lease and Purchase
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and Sale Agreement executed as of even date herewith, embodies the entire
agreement and understanding between Mortgagee and Mortgagor and supersede all
prior agreements and understandings between such parties relating to the subject
matter hereof. Accordingly, this Mortgage may not be contradicted by evidence of
prior, contemporaneous, or subsequent oral agreements of the parties. There are
no unwritten oral agreements between the parties.
IN WITNESS WHEREOF, Mortgagor has executed and delivered this Mortgage on the
date stated above.
WITNESSES: Bansgrove Limited
_______________________ By: /S/ Xxxxxxx Xxxxxxxx
Print Name ______________
_______________________
Print Name ______________
