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Exhibit 10.45
Prepared By: Xxxxx X. Xxxxxxxxx, Esq.
Winick & Rich, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MORTGAGE AND SECURITY AGREEMENT
LENDER: FINOVA CAPITAL CORPORATION, A DELAWARE CORPORATION, HAVING AN ADDRESS
AT 000 XXXX XXXXXXX XXXX, XXXXXXX, XX 00000
BORROWER: ROADHOUSE GRILL, INC., A FLORIDA CORPORATION, HAVING AN ADDRESS AT
0000 X. XXXXXXX XXXXXX, XXXXX 000, XX. XXXXXXXXXX, XXXXXXX 00000
1. DEFINITION OF TERMS. As used in this Mortgage and Security Agreement, the
following terms shall have the following meanings:
1.1 LAND: The land described in Exhibit A attached hereto, together with
all right, title and interest of Borrower thereto.
1.2 IMPROVEMENTS: (a) All buildings, structures and other improvements now
or hereafter existing or erected on the Land, (b) all fixtures of every kind and
nature now or hereafter owned by Borrower and used in connection with such
improvements, and (c) all of Borrower's interest in personal property of any
kind or nature whatsoever, which is or will be used on or in connection with,
the Land or any of the foregoing, including, without limitation, all equipment,
machinery, and furniture, together with all present and future attachments,
accessions, replacements and additions located on the Land.
1.3 PROPERTY: The Land, Improvements, Easements or any portion thereof or
interest therein.
1.4 LEASE(S): All leases and other occupancy or use agreements, now or
hereafter existing, which cover or relate to all or any portion of the Property.
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1.5 OBLIGATIONS: All principal, interest, late charges, other charges,
prepayment and other premiums, indemnification amounts due or to become due by
Borrower to Lender and all other liabilities of Borrower to Lender due or to
become due under the Loan Documents.
1.6 NOTE: A Promissory Note made by Borrower in favor of Lender of even
date herewith in the principal amount of $15,000,000.
1.7 INDENTURE: This Mortgage and Security Agreement and all modifications
or amendments thereto or extensions thereof.
1.8 LOAN AGREEMENT: The Loan and Security Agreement of even date herewith
executed by and between Borrower and Lender.
1.9 LOAN DOCUMENTS: The Indenture, the Note, the Loan Agreement, Uniform
Commercial Code financing statements and amendments, other mortgage and security
agreements executed in connection with the Note, and any and all other documents
or instruments related to or evidencing any portion of the Obligations, whether
now or hereafter given or made by or on behalf of Borrower to Lender.
1.10 FRANCHISE: Roadhouse Grill, Inc.
1.11 EASEMENTS: All easements, rights xx xxx, xxxxx xx xxxx, xxxxxxx, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and all
appurtenances whatsoever, in any way, now or in the future, belonging, or
relating to the Land, whether now owned or hereafter acquired by Borrower.
1.12 MAXIMUM AMOUNT: For purposes of recording this Indenture only, the
maximum amount of the Obligations secured by this Indenture shall be
$15,000,000.
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2. GRANTING CLAUSES. Borrower hereby irrevocably and absolutely grants,
assigns, mortgages, bargains, sells and conveys to Lender, with all POWERS OF
SALE AND STATUTORY RIGHTS AND COVENANTS, and grants to Lender a security
interest in all of Borrower's estate, right, title and interest in the Property,
together with all proceeds thereof (including but not limited to Insurance
Proceeds and Taking Proceeds as hereinafter defined) FOR THE PURPOSE OF SECURING
payment of the Obligations and the due, prompt and complete observance,
performance and fulfillment of each and every obligation, covenant, condition,
warranty, agreement and representation of Borrower contained in the Loan
Documents, together with all and singular the rights, members, hereditaments,
and appurtenances to the same belonging or in any way incident or appertaining,
and of all rents, issue and profits which may arise or be had therefrom, and all
improvements and fixtures now or hereafter attached thereto. TO HAVE AND TO HOLD
all in singular the said Property unto the Lender its successors and assigns
forever. This Indenture is also intended to be a security agreement under the
Uniform Commercial Code as in force, from time to time, in the state where the
Property is located (the "State").
3. ASSIGNMENT OF LEASES AND RENTS. As additional collateral for the payment of
the Obligations, Borrower hereby assigns to Lender the Leases, including the
rents, income and profits of the Property, and grants the Lender the right to
enter upon and take possession of the Property for the purpose of collecting the
same and to let the Property or any part thereof, and to apply the rents, income
and profits (after payment of all necessary charges and expenses) on account of
the Obligations. Until an Event of Default as hereinafter defined shall occur,
Borrower shall be entitled to collect and receive said rents, income and
profits. Borrower warrants that: (a) Borrower is or will be the sole owner of
the entire lessor's interest in the Leases; (b) the Leases are or will be valid
and enforceable and have not been and will not be altered, modified, or amended
in any manner whatsoever except as herein set forth; (c) no rents reserved in
the Leases have been or will be assigned or anticipated; and (d) no rents for
any period subsequent to the date of this assignment have been or will be
collected in advance of the time when the same shall become due under the terms
of the Leases. Borrower will not (i) execute any other assignment of its
interest in the Leases or assignment of rents arising or accruing from any Lease
or from the Property; (ii) alter, modify or change the terms of any Lease or
give any consent to exercise any option required or permitted by such terms
without the prior written consent of ; (iii) consent to any assignment or
subletting under any Lease not in accordance with its terms, without the prior
written consent of Lender. If an Event of Default shall occur and be continuing,
Borrower will, upon Lender's demand, to the extent Borrower is using or
occupying the Property, pay monthly in advance to Lender
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or to any receiver appointed to collect said rents, income and profits, the fair
and reasonable rental value for the use and occupation of the Property. The
exercise by Borrower of any right or remedy available under applicable law with
respect to any Lease including without limitation, the collection of the rents,
income and profits and the application thereof as herein provided shall not be
considered a waiver of any default by Lender under this Indenture or any Lease
or this assignment. Lender shall not be liable for any loss sustained by
Borrower resulting from Lender's failure to let the Property after default or
from any other act or omission of Lender in managing the Property after default
unless such loss is caused by the willful misconduct or bad faith of Lender.
Lender shall not be obligated to perform or discharge any obligation, duty, or
liability under any Lease or under or by reason of this assignment. Should
Lender incur any such liability under any Lease or under or by reason of this
assignment, or in defense of any such claims or demands, the amount thereof,
including costs, expenses and reasonable attorneys' fees, shall be Obligations.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants to
Lender that the following are true, correct and complete as of date of the
Indenture:
4.1 ORGANIZATION AND QUALIFICATION. Borrower is duly organized, validly
existing and in good standing as a limited liability company under the Laws of
the State of Florida with full power and authority to own its properties and to
transact its business as now transacted and as contemplated to be transacted.
Borrower is qualified and in good standing to transact business in each
jurisdiction where the ownership of its properties or the transaction of its
business requires such qualification.
4.2 EXECUTION, DELIVERY AND EFFECT OF LOAN DOCUMENTS. The Loan Documents
have each been duly authorized, executed and delivered by Borrower, and each of
the Loan Documents is a legal, valid and binding obligation of Borrower,
enforceable in accordance with its terms.
4.3 NO VIOLATION; REQUIRED APPROVALS. Borrower is not in material violation
of any term or provision of any document governing its organization or existence
or in default under any material instruments or obligations relating to
Borrower's business, assets or the Property and no claim or default relating to
such instruments, assets, business, or the Property has been asserted against
Borrower. The execution and performance by Borrower of the Loan Documents and
the consummation of the transactions contemplated thereby will not result in any
material breach of, or constitute a material default under, any contract,
agreement, document or other instrument to which Borrower is a
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party or by which Borrower may be bound or affected. No approval by,
authorization of, or filing with any federal, state or municipal or other
governmental commission, board or agency or other governmental authority is
required in connection with the authorization, execution and delivery of the
Loan Documents.
4.4 CONSTRUCTION AND COMPLETION OF IMPROVEMENTS. The Improvements have been
completed and installed in a good and workmanlike manner, in compliance with the
Laws as such term is hereinafter defined. There are no contracts or agreements
of any kind, either oral or in writing, now in existence covering labor or
materials heretofore furnished or to be furnished in connection with the
Property which are incomplete nor is any indebtedness outstanding for labor and
materials in connection with the Property.
4.5 LITIGATION. Except as previously disclosed, there are no pending suits,
judgments, executions, condemnation, proceedings, zoning changes or any other
proceedings pending or of record in any court of any nature or before or by any
governmental or administrative agency which could in any manner now or hereafter
affect the Borrower's title to, possession of or use of the Property, or which
could now be or hereafter constitute a lien thereon or materially or adversely
affect the Property or Borrower or change the Property. To the best of
Borrower's knowledge there are not threatened suits against Borrower or the
Property. No petitions or cases have been filed by or against Borrower under any
federal or state insolvency law. No portion of the Property is subject to any
right of redemption in favor of any third party under the foreclosure laws of
State.
4.6 TITLE TO PROPERTY. Borrower has good and clear, record and marketable
title to the Property, free of all liens, encumbrances or restrictions, except
as set forth in the title policy issued in connection with this Indenture.
4.7 COMPLIANCE WITH THE LAW. The Improvements and the use to which the
Borrower makes thereof, comply with all applicable restrictive covenants, zoning
ordinances, building codes and flood disaster laws; that Borrower has obtained
or will obtain when required to do so, all requisite zoning, utility and
building permits from all governmental entities or authorities having
jurisdiction over the Property.
4.8 FLOOD PLAIN. The Property is not located in an area designated as a
Flood Plain or if so located Borrower has obtained Federal Flood Plain insurance
coverage and delivered a certificate of such coverage to Lender.
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5. COVENANTS OF BORROWER.
5.1 PAYMENTS.
(a) OBLIGATIONS. Borrower shall pay promptly to Lender, when due, the
Obligations at the times and in the manner provided in the Loan Documents. Time
is of the essence with respect to payment of the Obligations.
(b) PROPERTY TAXES AND CHARGES. (i) Borrower shall, pay, prior to
delinquency, all real estate taxes and personal property taxes, assessments,
levies, utility and sewer charges, and any and all taxes and other charges,
imposed upon or assessed against Borrower or the Property, or upon the rents,
income and profits of use or possession thereof, and any stamp or other taxes
which may be required to be paid with respect to any of the Loan Documents
("Property Taxes and Charges"). Upon Lender's request Borrower shall furnish
Lender with receipts showing payment of the Property Taxes and Charges prior to
such Property Taxes and Charges becoming delinquent.
(ii) Upon notice to Borrower after the occurrence of any Event of
Default, and without limiting any other remedies available to Lender under this
Mortgage, in equity or at law, Lender shall be entitled to require Borrower to
pay monthly in advance to Lender the equivalent of 1/12th of the annual Property
Taxes and Charges, as estimated by Lender in its sole discretion. Lender shall
apply such funds against the next accruing installments of Property Taxes and
Charges. Lender shall have the right to make any payment of Property Taxes and
Charges out of such funds notwithstanding that Borrower is then protesting or
contesting such Property Taxes and Charges. Lender may commingle such funds with
its own funds, and Borrower shall not be entitled to interest thereon. If the
Property is sold in foreclosure or otherwise acquired by the Lender after
default, any remaining balance of such funds shall be applied to the Obligations
as of the date of the commencement of foreclosure proceedings or as of the date
title to the Property is otherwise acquired, whichever is earlier. If the
Property is sold or conveyed, Borrower's right, title and interest in and to
such funds will automatically, and without necessity of further assignments, be
held for the account of the new owner.
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(c) TAXES ON LENDER. If the Laws impose upon Lender the obligation
to pay the whole or any part of the Property Taxes and Charges or changes in any
way the Laws relating to taxation so as to adversely affect the Loan Documents,
then Borrower shall pay such Property Taxes and Charges or reimburse Lender for
such adverse affect immediately therefor, unless in the opinion of counsel to
Lender, it might be unlawful to require Borrower to pay the same or such payment
might result in the imposition of interest prohibited by the Laws.
(d) LIABILITIES. Borrower shall pay, prior to delinquency, all
debts and liabilities incurred in the construction, operation, development, use,
enjoyment, repair, maintenance, replacement, restoration and management of the
Property including, without limitation, utility charges, sums due mechanics and
materialmen and other sums secured or which might if unpaid become liens on the
Property.
(e) EXPENSES. Borrower shall, to the extent allowed by the Laws,
pay, on demand and without counterclaim, setoff, deduction, defense, or
reduction, all fees (including, without limitation, reasonable attorneys' fees
and disbursements), taxes, recording fees, commissions and other liabilities,
costs and expenses incurred in connection with (i) the making or enforcement of
the Loan Documents; (ii) Lender's exercise and enforcement of its rights and
remedies hereunder; and (iii) Lender's protection of the Property and its
interest therein. Borrower shall not be entitled to any credit against or in
reduction of the Obligations by reason of the payment of any sums required to be
paid under Paragraph 5.1 (b) through (e) hereof. Lender may at its option pay on
behalf of Borrower all sums required hereunder and all such sums shall be deemed
to be part of the Obligations.
5.2 OPERATION OF THE PROPERTY.
(a) MAINTENANCE; ALTERATIONS. Borrower shall maintain and preserve the
Property in good repair and condition and shall not commit, permit or suffer any
demolition or waste of the Property or any use or occupancy which constitutes a
nuisance or violation under the Laws, except as set forth in the Loan Documents.
(b) LIENS. Borrower shall promptly discharge any mechanics', laborers',
materialmen's or similar or other lien, charge, attachment, or LIS PENDENS filed
or recorded which relates to Borrower or the Property and otherwise keep the
Property free and clear of all Liens (as defined in the Loan Agreement).
(c) COMPLIANCE WITH LAWS AND PRIVATE COVENANTS. Borrower shall keep,
observe, and satisfy, and not suffer
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violations of any, Federal, regional, State and local laws (including, without
limitation, all environmental laws), ordinances, rules, regulations, statutes,
decisions, order, judgments, directives or any governmental or regulatory
authority, court or arbitrator (collectively "Laws") and private covenants
materially affecting the Property.
(d) INSPECTION. Borrower shall permit Lender and Trustee to enter upon
and inspect the Property at reasonable times without delay, hinderance or
restriction.
(e) OPERATION AS RESTAURANT. Borrower shall operate (or cause its
tenants to operate) the Property as a Franchise restaurant and shall not cease
nor permit the tenant to close such operation without Lender's prior written
consent.
5.3 INSURANCE. Borrower shall obtain and keep in force, with one or
more insurers acceptable to Lender, such insurance as Lender may from time to
time require by notice to Borrower, including, as a minimum, insurance providing
(i) comprehensive general liability (including bodily injury and property damage
coverage) with a broad form coverage endorsement and a combined single limit of
at least $2,000,000.00, and (ii) protection against fire, "extended coverage"
and other "All Risk" perils, including, if specifically required by Lender,
earthquake and flood, to the full replacement value of the Property, with a
waiver of subrogation endorsement. All property insurance policies shall include
the standard mortgagee clause in use in the State naming Lender as the first
mortgagee with loss payable to Lender as such mortgagee and all other policies
shall name Lender as an additional insured. All insurance policies shall not be
cancelable or modifiable without 30 days' prior written notice to Lender and
shall provide for a deductible of not more than $1,000.00 for any single
"Casualty" as hereinafter defined. Borrower shall provide Lender with evidence
of compliance with this Paragraph in such forms as required from time to time by
Lender, or at least 15 days prior to the expiration date of any policy required
hereunder, each bearing notations evidencing the prior payment of premiums.
5.4 SALES; LEASES AND ENCUMBRANCES. Borrower shall not, without the
prior written consent of Lender, (a) convey, assign, sell, mortgage, encumber,
pledge, hypothecate, grant a security interest in, grant options with respect
to, lease or otherwise dispose of all or any part of any legal or beneficial
interest in any part or all of the Property, or any interest therein; or (b)
convey, assign, transfer or otherwise dispose of a material portion of the
assets of Borrower (other than the Property), including but not limited to any
currently existing or hereafter acquired Franchise of Borrower and any assets
used by Borrower in connection with such Franchise, other than in the ordinary
course of business of Borrower.
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5.5 FURTHER ASSURANCES. Borrower shall promptly upon request of Lender
(a) correct any defect, error or omission which may be discovered in the
contents of any Loan Document or in the execution or acknowledgment thereof; (b)
as to the Property, execute, acknowledge, deliver and record or file such
further instruments (including, without limitation, mortgages, deeds of trust,
security agreements, financing statements and specific assignments of rents or
leases) and do such further acts, in either case as may be necessary, desirable
or proper in Lender's opinion to (i) protect and preserve the first and valid
lien and security interest of this Indenture on the Property or to subject
thereto any property intended by the terms thereof to be covered thereby; and
(ii) protect the interest and security interest of Lender in the Property
against the rights or interests of third parties. Borrower hereby appoints
Lender as its attorney-in-fact, coupled with an interest, to take such actions
to protect and preserve its valid liens and security interests in the Property
and to perform such obligations on behalf of the Borrower, at Borrower's sole
expense, if Borrower fails to comply fully with this Paragraph.
5.6 INDEMNITY. Borrower shall indemnify, defend and hold harmless
Lender from and against, and, upon demand, reimburse Lender for, all claims,
demands, liabilities, losses, damages, judgments, penalties, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements,
which may be imposed upon, asserted against Lender on account of any act
performed or omitted to be performed under the Loan Documents or on account of
any transaction arising out of or in any way connected with the Property or the
Loan Documents, including but not limited to any brokerage fees.
5.7 NOTICES. Borrower shall deliver to Lender at Lender's address set
forth herein promptly upon receipt of the same, copies of all notices,
certificates, documents and instruments received by Borrower which materially
and adversely affect Borrower, the Property or the Leases.
5.8 ESTOPPEL CERTIFICATES. Borrower shall promptly furnish to Lender
from time to time, on the request of Lender, written statements signed and, if
so requested, acknowledged, setting forth the then unpaid principal and interest
on the Note and specifying any claims, offsets or defenses which Borrower
asserts against the Obligations or any obligations to be paid or performed by
Borrower under the Loan Documents, together with any other information
reasonably requested by Lender.
5.9 DEFENSE. Borrower shall, without liability, cost or expense to
Lender, protect, preserve and defend title to the Property and the security
interest of Lender, against all adverse
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claimants to title or any possessory or non-possessory interests therein.
5.10 PERSONALTY. Borrower shall use the portion of the Improvements
which constitutes personalty ("Personalty") solely at the Property. Borrower
shall from time to time when requested by Lender, provide Lender with a current,
accurate inventory of the Personalty.
6. CASUALTIES AND TAKINGS.
6.1 NOTICE TO LENDER. In the case of any act or occurrence of any kind
or nature which results in damage, loss or destruction to the Property (a
"Casualty"), or commencement of any proceedings or actions which might result in
a condemnation or other taking for public or private use of the Property or
which related to injury, or damage thereto (a "Taking"), Borrower shall
immediately notify Lender describing the nature and the extent of the Taking or
the Casualty, as the case may be. Borrower shall promptly furnish to Lender
copies of all notice, pleadings, determinations and other papers in any such
proceedings or negotiations.
6.2 REPAIR AND REPLACEMENT. In case of a Casualty or Taking, Borrower
shall promptly (at Borrower's sole cost and expense and regardless of whether
the insurance or other proceeds, if any, shall be sufficient or made available
by Lender for the purpose) restore, repair, replace and rebuild the Property as
nearly as possible to its quality, utility, value, condition and character
immediately prior to the Casualty or the Taking, as the case may be.
6.3 PROCEEDS.
(a) COLLECTION. Borrower shall use its best efforts to collect the
maximum amount of insurance proceeds payable on account of any Casualty
("Insurance Proceeds"), and the maximum award or payment or compensation payable
on account of any Taking ("Taking Proceeds"). In the case of a Casualty, Lender
may, at its sole option, make proof of loss to the insurer if not made promptly
by Borrower. Borrower shall not settle or otherwise compromise any claim for
Insurance Proceeds or Taking Proceeds without Lender's prior written consent.
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(b) ASSIGNMENT TO LENDER. Borrower hereby assigns, sets over and
transfers to Lender all Insurance Proceeds and Taking Proceeds and authorizes
payment of such Proceeds to be made directly to Lender. Lender may, in its sole
discretion, apply such Proceeds to either of the following, or any combination
thereof:
(i) payment of the Obligations, in any order that Lender
determines and with respect to the Notes as provided
therein; or
(ii) repair or replacement of any part of the Property so
destroyed, damaged or taken, in which case Lender may
impose such terms, conditions and requirements for
the disbursement of proceeds for such purposes as it,
in its sole discretion, deems advisable.
Notwithstanding the foregoing, Borrower has a right to rebuild, provided that no
Event of Default exists, and Borrower exhibits to Lender proof of sufficient
resources to rebuild, inclusive of Insurance Proceeds.
If any portion of the Obligations shall thereafter be unpaid, Borrower shall not
be excused from the payment thereof in accordance with the terms of the Loan
Documents. Lender shall not, in any event or circumstance, be liable or
responsible for failure to collect or exercise diligence in the collection of
any Insurance Proceeds or Taking Proceeds.
70 DEFAULTS; REMEDIES OF LENDER.
7.1 EVENTS OF DEFAULT. Any Event of Default, as defined in the Loan
Agreement, shall be an Event of Default under this Indenture.
7.2 REMEDIES. In case of an Event of Default, Lender may, at any time
thereafter, at its option and without notice, exercise any or all of the
following remedies:
(a) ACCELERATION. Declare the entire Obligations immediately due and
payable after five (5) days when due, without notice, and it shall thereupon be
immediately due and payable; or
(b) JUDICIAL FORECLOSURE AND OTHER ACTION. Commence and maintain an
action or actions in any court of competent jurisdiction to foreclose this
Indenture pursuant to the Laws of the State to obtain possession of the Property
or to obtain specific enforcement of the covenants of Borrower hereunder.
Borrower agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy; or
(c) OFFSET RIGHTS. Apply in satisfaction of the Obligations or any
amount at any time to become due or payable in connection with the ownership,
occupancy, use, restoration or repair of the Property, any deposits or other
sums credited by or
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due from Lender to Borrower, including, without limitation,
Insurance Proceeds and the Taking Proceeds; or
(d) CURE A DEFAULT. Without releasing Borrower from any obligation
hereunder or under the Loan Documents, cure any default by Borrower. In
connection therewith, Lender may enter upon the Property and do such acts and
things as Lender deems necessary or desirable to protect the Property or the
Leases; or
(e) POSSESSION OF PROPERTY. Take physical possession of the Property
and of all books, records, documents and accounts relating thereto and exercise,
without interference from Borrower, any and all rights which Borrower has with
respect to the Property, including, without limitation, the right at Borrower's
expense, to rent and lease the same and to hire a professional property manager
for the Property. If necessary to obtain possession as provided for above,
Lender may, without liability to Borrower or other persons, invoke any and all
legal remedies to dispossess Borrower, including, without limitation, one or
more actions for forcible entry and detainer, trespass and restitution. In
connection with any action taken by Lender pursuant to this Paragraph Lender
shall not be liable for any loss sustained by Borrower resulting from any
failure to let the Property or from any other act or omission of Lender in
managing the Property unless caused by the willful misconduct or gross
negligence of Lender, nor shall Lender be obligated to perform or discharge any
obligation, duty or liability under any Lease or by reason of any Loan Document.
Should Lender incur any such liability, the amount thereof shall be secured
hereby and Borrower shall reimburse Lender therefor immediately upon demand.
Lender shall have full power to make, from time to time, all alterations,
renovations, repairs and replacements to the Property as may seem proper to
Lender; or
(f) RECEIVER. Secure the appointment of a receiver for the Property
whether such receivership be incident to a proposed sale of such Property or
otherwise, and without regard to the value of the Property or the solvency of
Borrower. Borrower hereby consents to the appointment of such receiver or
receivers, waives any and all defenses to such appointment and agrees not to
oppose any application therefor by Lender. The appointment of such receiver,
trustee or other appointee by virtue of any court order, or laws shall not
impair or in any manner prejudice the rights of Lender to receive payment of
rents and income; or
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(g) UNIFORM COMMERCIAL CODE REMEDIES. Exercise any and all rights of a
secured party with respect to that portion of the Indenture which constitutes
personal property under the Uniform Commercial Code of the State. Written notice
mailed to Borrower, as provided herein, 10 days prior to the date of public sale
of the Personalty or prior to the date, after which private sale of such
Personalty will be made, shall constitute reasonable notice. Any sale made
pursuant to the provisions of this Paragraph shall be deemed to have been a
public sale conducted in a commercially reasonable manner, if held
contemporaneously with the sale of the remainder of the Property. In the event
of a foreclosure sale, whether made by Lender under the terms hereof, or under
judgment of a court, such Personalty and the other parts of the Property may, at
the option of Lender, be sold in parts or as a whole; or
(h) SUBROGATION. Have and exercise all rights and remedies of any
person, entity or body politic to whom Lender renders payment or performance in
connection with the exercise of its rights and remedies under the Loan
Documents; or
(i) OTHER. Take such other actions or commence such other proceedings
under the Laws as Lender deems necessary or advisable to protect its interest in
the Property and/or collect the Obligations.
Any sums advanced by Lender under this Paragraph or Paragraph 5.1
hereof shall bear interest at the Default Rate as specified in the Loan
Agreement (but in no event more than the maximum rate permitted by law); and
shall be payable by Borrower on demand and such sums together with such interest
thereon shall constitute a part of the Obligations.
7.3 HOLDING OVER. Should Borrower, after an Event of Default, continue
in possession of any part of the Property unlawfully, Borrower shall be a tenant
from day to day, terminable at the will of either Borrower or Lender, at a
reasonable rental per diem, such rental to be due and payable daily to Lender.
7.4 GENERAL PROVISIONS RELATING TO REMEDIES.
(a) CUMULATIVE REMEDIES. All of the rights, remedies and options set
forth herein or otherwise available at law or in equity are cumulative and
concurrent and may be exercised without regard to the adequacy of or exclusion
of, any other right, remedy, option or security held by Lender.
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(b) RIGHT TO PURCHASE. At any sales of the Property pursuant hereto,
Lender shall have the right to purchase the Property being sold, and in such
cases the right to credit against the amount of the bid made therefor (to the
extent necessary) all or any of the Obligations then due. If Lender acquires the
Property Borrower shall not be entitled to any proceeds of the further sale of
the Property by Lender.
(c) NO WAIVER OR RELEASE BY LENDER. Lender may resort to any remedies
and the security given by the Loan Documents in whole or in part, and in such
portions and in such order as may seem best to Lender in its sole discretion,
and any such action shall not in any way be considered as a waiver of any of the
rights, benefits or remedies evidenced by the Loan Documents. The failure of
Lender to exercise any right, remedy or option provided for in the Loan
Documents shall not be deemed to be a waiver of any of the covenants or
obligations secured by the Loan Documents. No sale of all or any of the
Property, no forbearance on the part of Lender and no extension of the time for
the payment of the whole or any part of the Obligations or any other indulgence
given by Lender to Borrower or any other person or entity including, without
limitation, any surrender, compromise, release, renewal, extension, exchange or
substitution which Lender may grant in respect of the Property or any interest
therein or any release or indulgence granted to any maker, endorser, guarantor
or surety of any of the Obligations, shall operate to release or in any manner
affect Lender's interest in the Property or the liability of Borrower to pay the
Obligations, except to the extent that such liability shall be reduced by
proceeds of sale of all or any of the Property received by Lender.
(d) WAIVER BY BORROWER. Borrower hereby waives the benefit of any laws
providing for appraisal or redemption, waives any right to bring or utilize any
defense, counterclaim or setoff, other than one in good faith which denies the
existence or sufficiency of the facts upon which the foreclosure action is
grounded or which is based on Lender's wrongful actions. If any defense,
counterclaim or setoff (other than one permitted by the preceding sentence) is
timely raised in such foreclosure action, such defense, counterclaim or setoff
shall be dismissed. If such defense, counterclaim or setoff is based on a claim
which could be tried in an action for money damages, the foregoing waiver shall
not bar a separate action for such damages (unless such claim is required by
Laws or applicable rules of procedure to be pleaded in or consolidated with the
action initiated by Lender) but such separate action shall not thereafter be
consolidated with Lender's foreclosure action. The bringing of such separate
action for money damages shall not be deemed to afford any grounds for staying
Lender's foreclosure action. Borrower waives any and all right to trial by jury
in any action or proceeding based hereon.
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8 GENERAL.
8.1 AMENDMENTS. The Loan Documents may not be waived, changed or
discharged orally, but only by an agreement in writing and signed by Lender.
Such permitted waiver, change or discharge shall be effective only in the
specific instances and for the purposes for which given and to the extent
therein specified. Reference to any of the Loan Documents in this Indenture
shall include all amendments, modifications, extensions and renewals thereof.
8.2 NOTICES. (a) Except as otherwise provided herein, all notices and
other communications required under the terms and provisions of this Indenture
shall be in writing and shall become effective when delivered by hand or
received by overnight courier, telex, facsimile, telegram or registered first
class mail, postage prepaid, addressed as follows:
If to Lender, at:
FINOVA Capital Corporation
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxxxx X. XxXxxxxx
Senior Vice President
with a copy to: Winick & Rich, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to Borrower, at:
Roadhouse Grill, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxxx Xxxxx, CFO
with a copy to: Xxxxx XxXxxxxx Xxxxx Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxx Xxxxxx, Esq.
or at such other address as either party may, from time to time, designate in
writing to the other party hereto.
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18
If any notice is given by telex, facsimile transmission, or telegram,
the party giving such notice shall confirm such notice by a writing delivered by
hand or overnight courier; PROVIDED, HOWEVER, that for all purposes hereunder,
notice shall be deemed effective at the time given by telex, telecopier or
telegram.
8.3 SUCCESSORS AND ASSIGNS. The terms, provisions, and conditions
hereof shall be binding upon Borrower, and any permitted successors and assigns
of Borrower, and shall inure to the Land. All references in this Indenture to
Borrower, Lender shall be deemed to include all such successors and assigns.
8.4 SEVERABILITY. A determination that any provision of the Loan
Documents is unenforceable or invalid shall not affect the enforceability or
validity of any other provision, and any determination that the application of
any provision of the Loan Documents to any person or circumstances is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to any other persons or circumstances.
8.5 JOINT AND SEVERAL LIABILITY. If there is more than one Borrower, the
obligations and covenants of each Borrower shall be joint and several.
8.6 GOVERNING LAWS. This Indenture shall be construed according to and
governed by the Laws of the State.
8.7 PUBLICITY. Lender is hereby authorized to issue appropriate press
releases and to cause a tombstone to be published announcing the consummation of
this transaction and the aggregate amount of thereof.
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19
8.8 CAPTIONS. All paragraph and subparagraph captions are for convenience
of reference only and shall not affect the construction of any provision herein.
8.9 THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGE
PROPERTY.
BORROWER:
ROADHOUSE GRILL, INC.
BY: /s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx, CFO
0000 X. Xxxxxx Xxxxxx, Xxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
LENDER:
FINOVA CAPITAL CORPORATION
BY: /s/ Xxxxxxx X. Xxxx
----------------------------------------
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
-17-
20
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD)
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgements, the
foregoing instrument was acknowledged before me by XXXXXX XXXXX, the Chief
Financial Officer of ROADHOUSE GRILL, INC., a Florida corporation, freely and
voluntarily under authority duly vested in him/her by said corporation and that
the seal affixed thereto is the true corporate seal of said corporation. He is
personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid
this 5th day of September, 1997:
/s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Xxxxx X. Xxxxxx
--------------------------------
Typed, printed or stamped name of Notary Public
My Commission Expires: [NOTARY SEAL] XXXXX X. XXXXXX
COMMISSION # CC 503072
EXPIRES NOV 9, 1999
BONDED THRU
ATLANTIC BONDING CO., INC.
-00-
00
XXXXX XX XXX XXXXXX )
) SS: PARAMUS
COUNTY OF BERGEN )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the State aforesaid and in the County aforesaid to take acknowledgements, the
foregoing instrument was acknowledged before me by Xxxxxxx X. Xxxx, the Vice
President of FINOVA CAPITAL CORPORATION, a Delaware corporation, freely and
voluntarily under authority duly vested in him/her by said corporation and that
the seal affixed thereto is the true corporate seal of said corporation. He is
personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid
this 8th day of September, 1997:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
Xxxxxx X. Xxxxxxxxx
--------------------------------
Typed, printed or stamped name of Notary Public
My Commission Expires: [NOTARY SEAL] XXXXXX X. XXXXXXXXX
Notary Public, State of New Jersey
No. # 2181034
Commission Expires 9/1/2000
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