Mortgage and Security Agreement
Exhibit
10.140
This
instrument prepared by
and
return recorded instrument to:
Xxxxx
X.
Xxxxxx, Xx., Esquire
Xxxxxx
& Tudhope, P.A.
0000
Xxxxxxxx Xxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
XX 00000
Phone
Number: 000-000-0000
Fax
Number 000-000-0000
THIS
MORTGAGE AND SECURITY AGREEMENT
(the
“Mortgage”),
dated
January
3, 2006,
is
executed and delivered by
Xxxxx Creek Acquisition Company, LLC, a Florida Limited Liability
Company,
having a
mailing address of 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
XX
00000 (referred to herein as “Mortgagor”
or as “Borrower”),
to and
in favor of does hereby assign to Bankers
Credit Corporation, a Florida Corporation, (the
“Mortgagee”),
having its principal place of business at 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, XX 00000 (referred to herein as “Mortgagee”),
under
the circumstances summarized in the following recitals:
A Mortgagor
has executed and delivered to Mortgagee a certain Real Estate Promissory Note
of
even date herewith in the principal amount of Seven
Million and 00/100 dollars ($7,000,000.00) (hereinafter
referred to as the “Note”).
B This
Mortgage is intended to secure the payment of the unpaid principal balance
of
the Note, together with interest as therein provided and any other obligations
of the Borrower pursuant to the Note, this Mortgage or any other documents
executed simultaneously or contemporaneously therewith of even date herewith
between Borrower and Mortgagee (the “Loan
Documents”).
C It
is
intended that this Mortgage may secure unpaid balances of loan advances made
after this Mortgage is delivered to the Osceola
County
Clerk’s
Office; provided, however, that the maximum amount of the unpaid indebtedness
secured hereby (exclusive of interest thereon, and advances for the payment
of
taxes, assessments, insurance premiums or costs for the protection of the
Mortgaged Property as hereinafter defined), shall not exceed twice the face
amount of the Note secured hereby.
NOW,
THEREFORE,
in
consideration of the loan made by Mortgagee to Mortgagor, as evidenced by the
Note, and for other valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, and for the purpose of securing:
(i)
all
payments to be made by Mortgagor pursuant to the Note and this Mortgage, (ii)
any
amounts advanced or costs incurred by Mortgagee for the protection of the
Mortgaged Property (as hereinafter defined) or the enforcement of this Mortgage,
the Note or the Loan Documents, (iii)
the
repayment of any future advances, with interest thereon, made to Mortgagor
by
Mortgagee pursuant hereto, (iv)
the
performance and observance of each covenant and agreement of Mortgagor contained
in this Mortgage, the Note or the Loan Documents, and (v)
the
payment and performance of Mortgagor under any other loans or agreements between
Mortgagor and Mortgagee, Mortgagor does hereby grant, bargain, sell, convey,
mortgage, assign, grant a security interest in and transfer unto Mortgagee,
its
successors and assigns, the following property (the “Mortgaged
Property”):
(a) the
land
described in Exhibit
“A”
attached
hereto, together with all buildings, structures, additions, improvements,
facilities and fixtures and other property, now or hereafter located in, upon
or
under or based at, such land (the “Premises”);
(b) all
easements, rights of way or use, licenses, privileges, franchises, servitudes,
tenements, hereditaments and appurtenances now or hereafter belonging or in
anywise appertaining thereto, including, without limitation, all rights, title
and interest of Mortgagor in any street, alley or sidewalk, open or proposed,
and in front of, adjoining or adjacent or contiguous thereto;
(c) the
proceeds from any insurance or condemnation award pertaining thereto or
compensation in lieu thereof, including, but not limited to, any award or
compensation for the alteration of the grade of any street or any other injury
to or decrease in the value of the Mortgaged
Property;
(d) all
of
Mortgagor’s right, title, interest, estate, claim or demand, either at law or in
equity, in and to all architectural, engineering and similar plans,
specifications, drawings, renderings, profiles, studies, shop drawings, reports,
plats, permits and allocations, agreements for utilities, bonds and sureties,
relating to the Premises or the improvements or appurtenant facilities erected
or to be erected upon or about the Premises;
(e) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including, without limitation, the proceeds
of
insurance;
(f) all
contracts and other agreements for the sale of all or any part of the Premises
or the improvements thereon now or hereafter entered into by Mortgagor, and
all
rights, title
and
interest of Mortgagor thereunder, including, without limitation, all rights,
title and interest of Mortgagor in cash or securities deposited thereunder
to
secure performance by the contract purchasers of their obligations thereunder,
and including, without limitation, the right to receive and collect the proceeds
thereof;
(g) all
of
Mortgagor’s rights, powers and privileges (but not the burdens and obligations)
under any construction contract or architect’s (or engineer’s) agreement now or
hereafter entered into by Mortgagor, and all bonds and surety agreements, if
any, related thereto;
(h) all contracts and other agreements, if any, relating to the sale, lease, brokerage, development, management, maintenance and/or operation of the Mortgaged Property (or of any part thereof) or otherwise pertaining thereto;
(i) all
rights of Mortgagor under any commitment for any other loan secured by the
Mortgaged Property;
(j) all
rights, title and interest of Mortgagor in all trade names, trademarks and/or
service marks hereinafter used in connection with Mortgaged Property and all
contract rights and contracts, general intangibles, actions and rights of
action, deposits, prepaid expenses, permits, licenses owned by Mortgagor and
used in connection with or related to the Mortgaged Property;
(k) all
machinery, apparatus, equipment, fittings, fixtures and articles of personal
property of every kind and nature whatsoever, other than consumable goods,
now
or hereafter located in or upon the Premises or any part thereof owned by
Mortgagor and used or usable in connection with any present or future operation
of the Premises (hereinafter collectively called “Equipment”),
including, but without limiting the generality of the foregoing, all heating,
lighting, laundry, incinerating, plumbing, lifting, cleaning, fire-prevention,
fire-extinguishing, refrigerating, ventilating, communications, recreation,
air
conditioning and air cooling equipment or apparatus, engines, pipes, pumps,
tanks, motors, conduits, shades, awnings, screens, storm doors and windows,
stoves, wall beds, refrigerators, attached cabinets, partitions, ducts and
compressors, and all of the right, title and interest of Mortgagor in and to
any
equipment which may be subject to any conditional xxxx of sale, chattel mortgage
or security interest superior to the lien and security interest
established
by this Mortgage;
(l) all
proceeds, additions, replacements and substitutions of and to any of the
foregoing.
TO
HAVE AND TO HOLD
the
Mortgaged Property unto Mortgagee, its successors and assigns,
forever.
AND
IT IS HEREBY COVENANTED,
that
this Mortgage is given and the Mortgaged Property is to be held upon and subject
to the terms, provision and conditions herein set forth.
Section
2
Representations
and Warranties.
Mortgagor represents and warrants that (i)
Mortgagor is lawfully seized with good and marketable title in fee simple
absolute to the Premises free and clear of all liens and encumbrances
whatsoever, except taxes and assessments, general and special, not delinquent,
zoning ordinances, and except for those matters set forth in the title insurance
commitment issued incidental to the making of the loan (hereinafter
“Permitted
Prior Encumbrances”),
and
has good and marketable title to all personal property included in the Mortgaged
Property, subject only to the Permitted Prior Encumbrances; (ii)
it has
full right, power and authority to bargain, sell, mortgage and convey the
Mortgaged Property as herein provided; and (iii)
except
as expressly provided above, it will warrant and defend to Mortgagee such title
to the Mortgaged Property and the lien and interest of Mortgagee therein and
thereon against all claims and demands whatsoever and will maintain the priority
of the lien of, and the security interest granted by, this Mortgage upon the
Mortgaged Property until the Note is fully paid. Mortgagor further warrants
that
construction of the improvements and the use and operation of the Mortgaged
Premises as contemplated by Mortgagor’s loan application and the Loan Documents
are permitted by all applicable building, environmental and zoning laws,
statutes, resolutions and ordinances.
Section
3
After-acquired
Property.
All
property of every kind acquired by Mortgagor after the date hereof, and located
at, on or under the Premises, shall, without further mortgage, conveyance or
assignment, become subject to the lien of this Mortgage as fully as though
now
owned by Mortgagor and specifically described herein. Nevertheless, Mortgagor
shall take such actions and execute and deliver such additional instruments
as
Mortgagee shall reasonably require to further evidence or confirm the subjection
to the lien of this Mortgage of any such property.
Section
4
Payment
of Indebtedness.
Borrower will pay the indebtedness secured hereby in the manner and at the
times
provided in the Note, and, until the Note is fully paid, will comply with all
the covenants, terms and provisions contained herein, in the Loan Documents
and
in the loan application and conditions of approval (or any modification or
amendments thereto).
Section
5
Future
Advance Mortgage.
This
Mortgage is intended to secure the unpaid balances of loan advances to be made
under the Note after this Mortgage has been delivered to the Office of the
Xxxxxx
County
Clerk
for recordation. The maximum amount of the unpaid indebtedness secured hereby,
exclusive of interest thereon and advances made for the payment of taxes,
assessments, insurance premiums and costs incurred for the protection of the
Mortgaged Property, which may be outstanding at any time is the amount set
forth
in Paragraph C on page 1 hereof.
Section
6
Commercial
Code and Financing Statement.
This
Mortgage constitutes a security agreement and creates a security interest as
to
all or any part of the Mortgaged Property which is of a nature that a security
interest therein can be perfected under the Uniform Commercial Code from time
to
time in effect in the State in which the Mortgaged Property is located. This
Mortgage also constitutes a financing statement with respect to any and all
property included in the Mortgaged Property which are or may become
fixtures.
Section
7
Maintenance
and Use of Mortgaged Property.
Mortgagor , at its expense, shall keep the Mortgaged Property in good order
and
in a clean and safe condition (ordinary wear and tear excepted) and shall make
all necessary or appropriate repairs, replacements and renewals thereof,
interior, exterior, structural and non-structural, ordinary and extraordinary,
foreseen and unforeseen. Mortgagor will not do, or permit to be done, any act
or
thing which might impair the value or usefulness of the Mortgaged Property
or
any part thereof, will not commit or permit any waste of the Mortgaged Property
or any part thereof, and will not permit any unlawful occupation, business
or
trade to be conducted on the Mortgaged Property or any part thereof. Mortgagor
shall also, at its expense, promptly comply with all rights of way, privileges,
franchises, servitudes, licenses, easements, tenements, hereditaments, and
appurtenances being a part of, or burdening, the Mortgaged
Property.
Section
8
Compliance
with Legal and Insurance Requirements.
Mortgagor, at its expense, shall promptly comply with all Legal Requirements
and
Insurance Requirements, and shall procure, maintain and comply with all permits,
licenses and other authorizations required for the construction, installation,
operation, maintenance and use of the Mortgaged Property. As used in this
Section 8, “Legal
Requirements”
means
all laws, statutes, codes, acts, ordinances, resolutions, orders, judgments,
decrees, injunctions, rules, regulations, permits, licenses, authorizations,
directions and requirements of all governmental entities, departments,
commissions, boards, courts, authorities, agencies, officials and officers,
which now or at any time hereafter may be applicable to the Mortgaged Property
or any part thereof, or any use or condition of the Mortgaged Property or any
part thereof, and “Insurance
Requirements”
means
all provisions of any insurance policy covering or applicable to the Mortgaged
Property or any part thereof, all requirements of the issuer of any such policy,
and all orders, rules, regulations and other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) applicable
to or affecting the Mortgaged Property or any part thereof, or any use or
condition thereof. Mortgagor may, at its expense, and after prior written notice
to Mortgagee, contest in good faith by appropriate legal proceedings any Legal
Requirement and postpone compliance therewith pending the resolution or
settlement of such contest provided that (i)
such
postponement does not, in the opinion of Mortgagee, adversely affect the
condition, or value of, or the lien of this Mortgage as to any part of the
Mortgaged Property, and (ii)
Mortgagor shall deposit in escrow with Mortgagee pending such contest monies
sufficient in amount to cover the cost of compliance of any Legal Requirement
so
contested.
Section
9
Alteration,
Additions and Demolition.
Mortgagor may, at its expense, make from time to time any additions,
modifications or improvements to the Mortgaged Property to the extent and in
the
manner set forth in the Loan Documents. All additions, modifications and
improvements so made by Mortgagor shall become or be deemed to constitute a
part
of the Mortgaged Property. No building or improvements or any part thereof
may
be removed or demolished without the prior written consent of
Mortgagee.
Section
10
Payment
of Taxes and Other Governmental Charges.
Mortgagor shall pay promptly when due all taxes, assessments (whether general
or
special), and other governmental charges of any kind whatsoever, foreseen or
unforeseen, ordinary or extraordinary, that now or may at any time hereafter
be
imposed, assessed or levied against or with respect to the Note, this Mortgage,
or the Mortgaged Property or any part thereof (including, without limitation,
any taxes levied upon or with respect to the revenues, income or profits of
Mortgagor from the Mortgaged Property) or upon Mortgagee’s interest therein
(without regard to any law heretofore or hereafter enacted imposing payment
of
the whole or any part thereof upon Mortgagee).
Mortgagor
may, at its expense, and after prior notice to Mortgagee, by appropriate
proceedings, diligently prosecute, contest in good faith the validity or amount
of any such taxes, assessments and other charges and, during the period of
such
contest, permit the items so contested to remain unpaid. However, if at any
time
Mortgagee shall notify Mortgagor that, in its opinion, by nonpayment of any
such
items the lien of the Mortgage as to any part of the Mortgaged Property will
be
adversely affected, Mortgagor shall promptly pay such taxes, assessments or
charges. During the period when the taxes, assessments or other charges so
contested remain unpaid, Mortgagor shall deposit in escrow with Mortgagee monies
equal in amount to the amount of such contested taxes, assessments or
charges.
Section
11
Required
Insurance Coverage.
a Mortgagor
shall keep the buildings, improvements and Equipment constituting the Mortgaged
Property continuously insured for the benefit of Mortgagee against loss or
damage by fire and other hazards included in a standard fire insurance policy
with extended coverage endorsement in an amount equal to the greater of
(i)
the then
replacement value of the Mortgaged Property with an inflation rider (excluding
such amounts as are not insured by standard fire insurance policies, such as
excavations, underground foundations, piping, underground utilities, footings
below ground level and architects’ fees relating to repair or restoration
resulting from damage covered by such insurance), or (ii)
the sum
of the total unpaid principal balance of the Note outstanding plus interest
for
the next succeeding twelve month period; but in no event shall the amount of
such insurance be less than that required to avoid co-insurance. The loss
deductible provision for any such insurance shall not exceed One Thousand and
no/100 Dollars ($1,000.00).
b Mortgagor
shall obtain and continuously maintain single limit comprehensive general
accident and public liability insurance in minimum amounts of One Million and
no/100 Dollars ($1,000,000.00) with a loss deductible clause not to exceed
Five
Thousand and no/100 Dollars ($5,000.00) and naming Mortgagee as an additional
insured, and Mortgagee may, in its discretion, require such increases in
coverage as it deems necessary or advisable as a result of the operations
conducted by Mortgagor on the Mortgaged Property and/or the insurance coverage
carried by other entities conducing similar operations.
c All
insurance required to be obtained and maintained pursuant to this Mortgage
shall
be obtained from generally recognized, responsible insurance companies qualified
or licensed to transact business in the State in which the Mortgaged Property
is
located and otherwise satisfactory to Mortgagee. Each policy of insurance shall
not be subject to cancellation or substantial modification without at least
thirty (30) days prior written notice to Mortgagee.
d Mortgagor
shall deposit with Mortgagee all such policies of insurance or, at the option
of
Mortgagee, binders, certificates or other evidence satisfactory to Mortgagee
that (i)
the
insurance required hereby has been obtained and is in full force and effect,
and
(ii)
all
premiums thereon have been paid in full. Prior to the expiration of any such
insurance, Mortgagor shall furnish Mortgagee with evidence satisfactory to
Mortgagee that such insurance has been renewed or replaced and that all premiums
thereon have been paid in full, and all insurance policies required hereby
are
in full force and effect.
e Mortgagor
hereby assigns to Mortgagee all of Mortgagor’s rights, title and interest in and
to all such policies of insurance and in and to any insurance proceeds resulting
therefrom to the full extent of the indebtedness secured hereby, and further
authorizes and directs the insurer to pay any and all such proceeds directly
to
Mortgagee. Mortgagee may, at its option, collect, adjust and compromise any
claims under any such insurance policies. In the event of a foreclosure of
the
Mortgage, the purchaser of the Mortgaged Property shall succeed to all the
rights of Mortgagor (including any right to unearned premiums) in and to all
policies of insurance assigned to Mortgagee pursuant hereto.
f Mortgagor
shall maintain or cause to be maintained in connection with the Mortgaged
Property any worker’s compensation coverage required by the laws of the State of
Florida.
Section
12
Taxes
and Insurance Premiums.
a In
order
to more fully protect the security of this Mortgage, if Mortgagee shall so
elect
at any time after the occurrence of any Event of Default or an event which
with
notice or lapse of time or both would constitute an Event of Default (as defined
in Section 20), Mortgagor shall pay to Mortgagee, together with and in addition
to each payment of interest required by the Note, one-twelfth (1/12th) of the
amount (as estimated by Mortgagee) of the annual taxes and annual insurance
premiums next becoming due and payable with respect to the Mortgaged Property
and the policies of insurance referred to in this Mortgage, and Mortgagor shall
also pay to Mortgagee on demand therefor the amount by which the actual taxes
and insurance premiums exceed payments actually made pursuant hereto. Any unpaid
balance of advances by Mortgagee for taxes and/or insurance premiums shall
bear
interest at the Default Rate (as hereinafter defined) and, together with such
interest, shall be secured by this Mortgage.
b So
long
as Mortgagor is not in default hereunder, Mortgagee shall apply all of the
payments received by it pursuant to this Section to the relevant taxes and
insurance premiums, but nothing herein shall obligate Mortgagee to apply such
payments more often than semi-annually on account of taxes or more often than
annually on account of insurance premiums; provided, however, that if, before
any such payments have been so applied to the payment of taxes and/or insurance
premiums, Mortgagor shall be in default hereunder, Mortgagee may, at its sole
option, apply any or all such amounts towards the payment of principal and/or
interest in default. Mortgagor shall transmit to Mortgagee all relevant bills,
notices or invoices for taxes and assessments or insurance premiums promptly
after receipt thereof by Mortgagor. Mortgagee shall not be considered to be
a
fiduciary with respect to any amounts paid to or received by it pursuant to
the
terms of this Section and shall not be liable for the payment of interest on
all
or any part of such funds.
Section
13
Disposition
of Mortgaged Property; Liens and Encumbrances.
Except
in the ordinary course of business (which includes the development and sale
of
residential lots), Mortgagor shall not sell, convey, assign, transfer, lease,
or
dispose of all or any part of the Mortgaged Property, or any interest therein,
or enter into any agreement for any of the foregoing, in each case without
the
prior written consent of Mortgagee. Mortgagor shall not directly or indirectly
create or permit to remain, and will promptly discharge, any mortgage, lien,
encumbrance or charge on, pledge or, security interest in or conditional sale
or
other title retention agreement with respect to all or any part of the Mortgaged
Property, or any interest therein, or any revenues, income or profit or other
sums arising from the Mortgaged Property or any part thereof (including, without
limitation, any lien, encumbrance or charge as a result of operation of law)
other than (i)
the lien
and security interest of this Mortgage; (ii)
liens
for taxes, assessments and other governmental charges which are not at the
time
required to be paid pursuant to Section 10 hereof; (iii)
liens
attaching thereto to the extent permitted by Section 16 hereof; (iv)
the
Permitted Prior Encumbrances specified in Section 1 hereof, if any; and
(v)
the
Permitted Prior Encumbrances.
Section
14
Mechanics’
and Other Liens.
Mortgagor shall not permit any mechanics’ or other liens to be filed or to exist
against the Mortgaged Property or any part thereof, and Mortgagor shall, within
forty-five (45) days after notice of the filing of any such lien, cause the
same
to be discharged of record by payment, deposit, bond, order of a Court of
competent jurisdiction or otherwise.
Section
15
No
Claims Against Mortgagee.
Nothing
contained in this Mortgage shall be construed as a request by Mortgagee,
expressed or implied, for the performance of any labor or services or the
furnishing of any materials or other property with respect to the Mortgaged
Property or any part thereof, or be construed to give Mortgagee any right,
power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property with respect to the
Mortgaged Property or any part thereof, or to be construed to give the Mortgagor
any right, power or authority to contract for or permit the performance of
any
labor or services or the furnishing of any materials or other property on behalf
of Mortgagee, or in such manner as to provide the basis for any claim either
against Mortgagee or that any lien based on the performance of such labor or
services or the furnishing of any such material or other property is prior
to
the lien of this Mortgage.
Section
16
Damage,
Destruction, Eminent Domain.
a Mortgagor
shall promptly notify Mortgagee in writing of any damage to or destruction
of
any part of the Mortgaged Property, including a description of the nature,
extent and date of the damage, the estimated cost of repair, and estimated
net
proceeds of insurance. Mortgagor shall promptly notify Mortgagee in writing
of
any proposed, threatened or actual taking or injury to any part of the Mortgaged
Property pursuant to the use of the power of eminent domain, including a
description of the nature, extent and date of the taking or proposed taking
and
the estimated net proceeds of the condemnation award, or price for conveyance
under threat of condemnation.
) Mortgagor
hereby assigns to Mortgagee all of Mortgagor’s right, title and interest in and
to any and all such proceeds of insurance and/or eminent domain awards
(including any amount paid for a conveyance under threat of condemnation),
and
all such proceeds shall be paid to Mortgagee for application to Mortgagee’s
costs of collection, any amounts then due pursuant to the note, the Loan
Documents or this Mortgage, and then to the prepayment without premium of
principal of the Note; provided, however, that subject to paragraph (c) below,
and so long as no Event of Default (as defined hereinafter), or event which
with
notice or lapse of time or both would constitute an Event of Default (as defined
hereinafter), or event which with notice or lapse of time or both would
constitute an Event of Default, has occurred, the Mortgage shall permit all
or
any part of such insurance proceeds to be used for the purpose of repairing,
replacing, restoring and rebuilding the Mortgaged Property as nearly as
practicable to the value, condition and character thereof immediately prior
to
such damage or destruction, with such changes or alterations, however, as
Mortgagor may deem necessary for proper use or operation of the Mortgaged
Property and as may be approved by Mortgagee , in accordance with Section 18
(e)
hereof.
c If
(i)
any
building being part of the Mortgaged Property is damaged or destroyed to such
an
extent that (a)
it
cannot be reasonably repaired, replaced or restored within a period of three
(3)
months to the condition thereof immediately preceding such damage or
destruction, or (b)
normal
use and operation of the Mortgaged Property is prevented for a period of three
(3) months, then, in any of such events, Mortgagee may at its sole option,
and
within thirty (30) days after receiving notice of any such events, declare
the
entire indebtedness secured hereby to be due and payable on a date not earlier
than thirty (30) days after the date of such declaration, and thereupon the
entire amount of said indebtedness shall be due and payable without premium
on
such date, and shall thereafter bear interest at the Default Rate (as
hereinafter defined).
d All
prepayments of principal pursuant to paragraph (b) of this Section shall be
made
without premium or penalty in the inverse order of the maturity thereof, and
shall not reduce the periodic installments thereafter becoming due.
e Unless
any damage or destruction results in the exercise by Mortgagee of its option
pursuant to paragraph (c) of this Section, Mortgagor shall, regardless of the
adequacy or availability of insurance proceeds, if any, promptly commence and
complete the restoration, repair, replacement and rebuilding of the Mortgaged
Property as nearly as practicable to the value, condition and character thereof
immediately prior to such damage or destruction. Unless any taking results
in
the exercise by Mortgagee of its option pursuant to paragraph (c) of this
Section, Mortgagor shall, regardless of the adequacy or availability of proceeds
of condemnation therefore, if any, promptly commence and complete the
restoration, repair, replacement and rebuilding of the Mortgaged Property as
nearly as practicable to the value, condition and character thereof immediately
prior to such taking. If no Event of Default as hereinafter defined or event
which with notice, lapse of time, or both would constitute an Event of Default
has occurred, Mortgagee shall make any insurance proceeds available for any
such
repair or restoration, and shall disburse such funds as work progresses in
accordance with and subject to Mortgagee’s then normal and customary
construction loan disbursement practices and procedures, provided that Mortgagee
may require Mortgagor to deposit with Mortgagee, for disbursement prior to
the
disbursement of any such insurance proceeds, the amount in addition to such
available net proceeds of insurance that will be required (in Mortgagee’s
judgment) to complete such repair or restoration, or to provide Mortgagee with
evidence satisfactory to Mortgagee that such additional funds are available
for
such purposes.
Section
17 Leases.
Mortgagor shall not enter into any lease of all or any part of the Mortgaged
Property (“Lease”)
except
with the prior written consent of Mortgagee and pursuant to lease terms in
form
and substance satisfactory to Mortgagee. Unless otherwise provided by written
instrument signed by Mortgagee, any and all Leases shall be subordinated to
the
Mortgage. This Mortgage constitutes an absolute and present assignment of all
rentals, income and other revenues payable under or derived from any and all
Leases, subject only to the conditional license granted by Mortgagee to
Mortgagor to collect such rentals, income and revenues during such times as
no
Event of Default shall have occurred hereunder.
Mortgagor
will perform, fulfill, comply with the right or power to, as against Mortgagee
without its consent, cancel, terminate, abridge or modify any Lease, accept
a
surrender thereof or accept prepayments of installments of rent or other sums
due or to become due thereunder.
Section
18
Inspection.
Mortgagee, its agents and employees, shall have the right to enter upon and
inspect the Mortgaged Property at any and all reasonable times for the
protection of its interest in the Mortgaged Property and for such other purposes
as may in Mortgagee’s sole discretion be necessary or desirable in connection
with the exercise of its rights hereunder or under the Loan
Documents.
Section
19
Indemnification.
Mortgagor will protect, indemnify and save harmless Mortgagee, its officers,
directors, agents, and employees, from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including without limitation, reasonable attorneys’ fees and expenses) imposed
upon, incurred by or asserted against Mortgagee or any of such persons by reason
of (a)
ownership of any interest in the Mortgaged Property or any part thereof,
(b)
any
accident, injury to or death of person or loss of or damage to property
occurring on or about the Mortgaged Property or any part thereof or the
adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways,
(c)
any use,
disuse or condition of the Mortgaged Property or any part thereof, or the
adjoining sidewalks, curbs, vaults and vault space, if any, or any streets
or
ways, (d)
any
failure on the part of Mortgagor to perform or comply with any of the terms
hereof or of the Loan Documents or any inaccuracy of any representation or
warranty made by Mortgagor herein or in the Loan Documents, (e)
any
necessity to defend any of the rights, title or interest conveyed by this
Mortgage, (f)
the
performance of any labor or services or the furnishing of any materials or
other
property in respect to the Mortgaged Property or any part thereof, or
(g)
any
subsidence or erosion of any part of the surface of the Mortgaged Premises,
including any shoreline or any bank of any river, stream, creek, lake, ocean
or
other water source. If any action, suit or proceeding is brought against
Mortgagee , or any of its officers, directors, agents or employees, for any
reason, Mortgagor, upon the request of such party, will, at Mortgagor’s expense,
cause such action, suit or proceeding to be resisted and defended by counsel
satisfactory to Mortgagee or such person. Any amounts payable to an indemnified
party under this Section which are not paid within ten (10) days after written
demand therefor shall bear interest at the Default Rate (as hereinafter defined)
from the date of such demand, and such amounts, together with such interest,
shall be indebtedness secured by this Mortgage. The obligations of Mortgagor
under this Section shall survive any defeasance of the Mortgage.
Section
20
Events
of Default.
Any one
or more of the following events shall be an “Event
of Default”
under
this Mortgage:
a failure
by Mortgagor to pay any installment of principal, interest or premium under
the
Note or any other indebtedness secured hereby as and when the same becomes
due
and payable;
b failure
by Mortgagor to observe or perform any other term, covenant or agreement
contained herein, in the Loan Documents, in the loan application or the
conditions of approval thereof, or in any other instrument held by Mortgagee
as
security for the Note; provided, however, that if the failure is other than
the
payment of money, or maintenance of insurance, and such failure: (i)
is not
intentional or grossly negligent on the part of Mortgagor, (ii)
does not
involve a breach of Section 15 or Section 16 of this Mortgage, and
(iii)
does not
constitute an emergency in the sole opinion of Mortgagee, such failure shall
not
constitute an Event of Default if: (i)
Borrower
institutes curative action and pursues such action to completion within thirty
(30) days after written notice thereof has been given to Borrower by Mortgagee;
or (ii)
the
failure can be corrected, but not within thirty (30) days after written notice
thereof has been given to Borrower by Mortgagee, and Borrower has within the
aforesaid thirty (30) days instituted curative action and diligently and
continuously pursues such action to completion, provided that such failure
shall
become an Event of Default if it is not cured within ninety (90) days after
such
notice;
c Mortgagor
or any guarantor shall: (i)
admit in
writing its or his inability to pay its or his debts generally as they become
due; (ii)
have an
order for relief entered in any case commenced by or against it or him under
the
Federal bankruptcy laws, as now or hereafter in effect; (iii)
commence
a proceeding under any other Federal or state bankruptcy, insolvency,
reorganization or other similar law, or have such a proceeding commenced against
it or him and either have an order of insolvency or reorganization entered
against it or him or have the proceeding remain undismissed and unstayed for
sixty (60) days; (iv)
make an
assignment for the benefit of its or his creditors; or (v)
have a
receiver or trustee appointed for it or him or for the whole or any substantial
part of its or his property or for all or any part of the Mortgaged
Property;
d failure
by Mortgagor or any guarantor to pay any indebtedness or to observe or perform
any terms, covenants or provisions contained in any note, mortgage, agreement
or
other obligation to Mortgagee;
e Mortgagor
shall cease to exist or to be qualified to do or transact business in the State
in which the Mortgaged Property is located or be dissolved or shall be party
to
a merger or consolidation, shall issue stock of any type or series (if a
corporation), or shall sell all or substantially all of it assets, or the death
of any individual being a Borrower or guarantor;
f if
any
share of stock of Mortgagor are issued, sold, transferred, conveyed, assigned,
mortgaged, pledged, or otherwise disposed of so as to result in change of
control of Mortgagor, whether voluntarily or by operation of law, and whether
with or without consideration, or any agreement for any of the foregoing is
entered into; or, if Mortgagor is a partnership, any general or limited
partnership interest or other equity interest in the partnership is sold,
transferred, assigned, conveyed, mortgaged, pledged, or otherwise disposed
of so
as to result in change of control of Mortgagor, whether voluntarily or by
operation of law, and whether with or without consideration, or any agreement
for any of the foregoing is entered into;
g any
shares of stock of any corporation that is a general partner of Mortgagor or
a
general partner of a partnership that is a general partner of Mortgagor are
issued, sold, transferred, assigned, conveyed, mortgaged, pledged or otherwise
disposed of so as to result in change of control of the general partner of
Mortgagor, whether voluntarily or by operation of law, and whether with or
without consideration, or any agreement for any of the foregoing is entered
into, executed or delivered, or any general partnership interest in any general
partnership that is itself a general partner of Mortgagor is sold, transferred,
assigned, conveyed, mortgaged, pledged or otherwise disposed of, whether
voluntarily or by operation of law, and whether with our without consideration,
or any agreement for any of the foregoing is entered into;
h if
any
statement or representation contained in the loan application or any financial
statements or other materials furnished to Mortgagee prior or subsequent to
the
making of the loan secured hereby are discovered to have been false or incorrect
or incomplete;
i an
action
for foreclosure or marshaling of liens is commenced against all or any part
of
the Mortgaged Property; or
j a
default
or Event of Default occurs under any other mortgage or security agreement
encumbering all or any part of the Mortgaged Property, or in any agreement
or
document executed contemporaneously with this Mortgage.
Section
21
Right
to Cure.
If
Mortgagor shall fail to make any payment or perform any act required to be
made
or performed under this Mortgage or the Loan Documents, Mortgagee, without
demand upon Mortgagor and without waiving or releasing any obligation or
default, may (but shall be under no obligation to) make such payment or perform
such act for the account and at the expense of Mortgagor and may enter upon
the
Mortgaged Property or any part thereof for such purpose and take all such action
thereon as, in its sole opinion, may be necessary or appropriate therefor,
all
without prejudice to any other rights or remedies available to Mortgagee. All
payments so made by Mortgagee and all costs, fees and expenses incurred in
connection therewith or in connection with the performance by Mortgagee of
any
such act, together with interest thereon at the Default Rate (as hereinafter
defined) from the date of payment or incurrence, shall constitute additional
indebtedness secured by this Mortgage and shall be paid by Mortgagor to
Mortgagee on demand.
Section
22
Remedies.
If an
Event of Default shall have occurred, Mortgagee may exercise any or all or
any
combination of the remedies conferred upon or reserved to it under this
Mortgage, the Note, the Loan Documents or any instrument collateral thereto,
or
now or hereafter existing at law, or in equity or by statute. Without
limitation, Mortgagee may (a)
declare
the entire unpaid principal balance of the indebtedness secured hereby to be
immediately due and payable, without notice of demand, the same being expressly
waived by Mortgagor , and upon such declaration the entire indebtedness secured
hereby shall become immediately due and payable and shall thereafter bear
interest at the maximum rate allowed by law, but not to exceed eighteen percent
(18%) per annum (the “Default
Rate”);
(b)
proceed
at law or equity to collect all indebtedness secured by this Mortgage then
due
hereunder, whether at maturity or by acceleration; (c)
foreclosure the lien of this Mortgage as against all or any part of the
Mortgaged Property; and (d)
exercise
any rights, powers and remedies it may have as a secured party under the Uniform
Commercial Code of the State in which the Mortgaged Property is located
including, without limitation, the option of proceeding as to both personal
property and fixtures in accordance with Mortgagee’s rights with respect to real
property.
Section
23
Waiver
of Appraisement; Valuation.
Mortgagor hereby waives, to the full extent that it may lawfully do so, the
benefit of all appraisement, valuation, stay and extension laws now or hereafter
in force and all rights of marshaling of assets in the event of any sale of
the
Mortgaged Property, any part thereof or any interest therein, and any court
having jurisdiction to foreclose the lien hereto may sell the Mortgaged Property
(real or personal, or both) as an entirety or in such parcels, lots, manner
or
order as Mortgagee in its sole discretion may elect.
Section
24
Appointment
of Receiver.
If an
Event of Default shall have occurred, Mortgagee shall be entitled, to the extent
permitted by law, as a matter of right and without regard to the value or
condition of the Mortgaged Property or the adequacy thereof as security and
by
proceedings with notice to Mortgagor, to the appointment of a receiver for
all
or any part of the Mortgaged Property, whether such receivership is incidental
to a proposed sale of the Mortgaged Property or otherwise.
Section
25
Possession,
Management and Income; Assignment.
If an
Event of Default shall have occurred, Mortgagee, to the extent permitted under
applicable law, and without notice to Mortgagor, may enter upon and take
possession of the Mortgaged Property or any part thereof by force, summary
proceedings, ejectment or otherwise, and may remove Mortgagor and all other
persons and any and all property therefrom and may hold, operate and manage
the
same and receive all revenues, income or profits accruing with respect thereto
or any part thereof. Mortgagee shall be under no liability for or by reason
of
any such taking of possession, entry, removal or holding, operation or
management, or for the failure to do so.
Section
26
Remedies
Cumulative.
Each
right, power and remedy of Mortgagee provided for in this Mortgage, in the
Loan
Documents or now or hereafter existing at law or in equity or by statute or
otherwise, shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for in this Mortgage, in the Loan
Documents or now or hereafter existing at law or in equity or by statue or
otherwise, and the exercise or beginning of the exercise or partial exercise
by
Mortgagee of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by Mortgagee of any or all of such
other rights, powers or remedies.
Section
27
Provisions
Subject to Applicable Law.
All
rights, powers and remedies provided herein may be exercised only to the extent
that the exercise thereof does not violate any applicable law, and are intended
to be limited to the extent necessary so that they will not render this Mortgage
invalid, unenforceable or not entitled to be recorded, registered or filed
under
any applicable law.
Section
28
No
Waiver by Mortgagee.
No
failure by Mortgagee to insist upon the strict performance of any term hereof
or
to exercise any right, power or remedy consequent upon a breach thereof shall
constitute a waiver of any such term or of any such breach. No waiver of any
breach shall affect or alter this Mortgage, which shall continue in full force
and effect with respect to any other then existing or subsequent
breach.
Section
29
Right
to Xxx for Installments.
Mortgagee shall have the right from time to time to xxx for any sums required
to
be paid pursuant to the terms of this Mortgage (whether principal, interest,
taxes, insurance premiums or otherwise) as the same become due, without regard
to whether or not the principal or any other sums secured hereby shall then
be
due and payable, and without prejudice to the right of Mortgagee to accelerate
the indebtedness secured hereby or to commence an action for foreclosure or
any
other action for a default or defaults by Mortgagor existing at the time such
earlier action was commenced.
Section
30
Additional
Security.
Without
impairment of the lien and rights created by this Mortgage, Mortgagee may accept
additional security for the indebtedness secured by this Mortgage from Mortgagor
or (without notice to or the consent of Mortgagor) from any other person or
persons. Mortgagee may release or subordinate any part of the security for
the
indebtedness secured by this Mortgage without in any way impairing or affecting
the validity or priority of this Mortgage as to the Mortgaged Property not
specifically released. Mortgagee may resort to the security created by this
Mortgage or to such additional security in such manner and order as Mortgagee
may elect, in each case without affecting the lien hereof and the rights
conferred hereunder.
Section
31
Notices.
Any
notice, demand or request required or permitted by this Mortgage shall be in
writing and shall be deemed to have been sufficiently given at the earlier
of
either: (i) when
personally delivered or (ii)
at 6:00
p.m. on the second business day after the day on which it is deposited in the
United States certified or registered mail, postage prepaid, and addressed
to
the address of the party to whom such notice is directed as such address is
set
forth at the beginning of this Mortgage, and, in the case of Mortgagee, to
the
attention of the Legal Department, or at such other address as any party may
from time to time notify the other by notice in writing as
aforesaid.
Section
32
Reimbursement
of Attorneys’ Fees and Expenses.
If
Mortgagee becomes a party to any action, wherein Mortgagee must establish or
defend the validity or priority of this Mortgage, or if Mortgagee should incur
expenses (including attorneys’ fees) in connection with the enforcement of this
Mortgage, the Note, the Loan Documents or any other instrument or document
collateral thereto, Mortgagor shall reimburse Mortgagee for any and all such
costs or expenses, together with interest thereon, at the Default Rate from
the
date such costs and expenses are incurred, on demand, and all of said amounts,
including interest, shall constitute indebtedness secured by this Mortgage
to
the extent permitted by law.
Section
33
Discharge
of Mortgage.
If the
Note shall have been fully paid and all other sums payable under this Mortgage
and the Loan Documents by Mortgagor shall have been paid and Mortgagor shall
have complied with all the terms, conditions and requirements hereof and of
the
Loan Documents, then this Mortgage shall be null and void and of no further
force and effect.
Section
34
Recordation.
Mortgagor, at its expense, shall cause this Mortgage, any instruments
supplemental hereto, and financing statement, including all necessary
amendments, supplements, and appropriate continuation statements, registered
and
filed, in such manner and in such places as may be required in order to
establish, preserve and protect the lien of this Mortgage as a valid, first
mortgage lien on all real property and fixtures included in the Mortgaged
Property and a valid, perfected first priority security interest in all fixtures
included in the Mortgaged Property (including in each such case, without
limitation, any such properties acquired after the execution hereof). If
requested by Mortgagee, but in each case not more than once in each calendar
year, Mortgagor, at its expense, will furnish Mortgagee an opinion of counsel
satisfactory to Mortgagee specifying the action required and taken by Mortgagor
to comply with this Section 36 since the date of this Mortgage or the date
of the most recent such opinion (or stating that no such action is or was
necessary) and specifying all action which will be required to be required
to be
taken in the next succeeding twelve month period.
Section
35
Further
Assurances.
Mortgage will properly execute and deliver, or cause to be executed and
delivered from time to time, at the request of Mortgagee, all such further
deeds, conveyances, mortgages, security agreements, financing statements,
assignments of leases now existing or hereafter entered into, transfers and
such
other assurances as Mortgagee shall require for better assuring, mortgaging,
pledging, assigning and confirming unto Mortgagee all and singular the Mortgaged
Property and the title thereto.
Section
36
Estoppel
Affidavits.
Mortgagor, within ten (10) days after written request from Mortgagee, shall
furnish a written statement, duly acknowledged, setting forth the unpaid
principal of, and interest on the indebtedness secured hereby and whether or
not
any offsets or defenses exist against such principal and interest.
Section
37
Amendments,
Changes and Modifications.
Except
as otherwise provided in this Mortgage, this Mortgage may not be effectively
amended, changed, modified, altered or terminated without the prior written
consent of Mortgagee.
Section
38
Application
of Interest to Reduce Principal Sums Due.
In the
event that any charge, interest or late charge is above the maximum rate
permitted by law, then any excess amount over the lawful rate shall be applied
by Mortgagee to reduce the principal sums outstanding under the Note or any
other amounts due Mortgagee under the Note, Loan Documents or this Mortgage,
in
such sequence as Mortgagee may select at its option.
Section
39
Binding
Effect.
This
Mortgage shall inure to the benefit of and be binding upon Mortgagor, its
successors and assigns, and Mortgagee, its successors and assigns, provided
that
this Mortgage may not be assigned by Mortgagor without the prior written consent
of Mortgagee.
Section
40
Severability.
If any
term or provision of this Mortgage shall be held to be in no way be affected
thereby, each of which shall be deemed to be effective to the full extent
permitted by law.
Section
41
Captions.
The
captions or headings herein shall be solely for convenience of reference and
in
no way define, limit or describe the scope or intent of any provisions or
sections of this Mortgage.
Section
42
Counterparts.
This
Mortgage may be executed in any number of counterparts, each of which shall
be
regarded as an original and all of which shall constitute but one and the same
instrument; it shall not be necessary in proving this Mortgage to produce or
account for more than one such counterpart.
Section 43
Joint
and Several Liability.
If
Mortgagor consists of more than one party, each of the undersigned shall be
jointly and severally liable for the performance of all of the obligations,
covenants and agreements of Mortgagor contained herein.
Section
44
No
Setoffs.
Mortgagor acknowledges that the indebtedness secured hereby was incurred in
good
faith for full value received, and Mortgagor has no defenses, setoffs or
counterclaims thereto.
Section
45
Definitions.
Whenever in this instrument the context so admits or requires, the terms
“Mortgagor”
and
“Mortgagee”
shall
be construed as including their respective heirs, legal representatives,
successors and assigns, as the case may be (provided, however, that nothing
herein shall be construed to permit the assignment of this Mortgage by
Mortgagor); and the pronoun as used herein to refer to either Mortgagor or
Mortgagee in the third person, singular number and masculine gender, shall
be
construed as meaning the person, number and gender appropriate to the first
designation to the respective parties hereto.
Section
46
Future
Advances.
It is
the intent hereof to secure payment of the Note, whether the full amount thereof
shall have been advanced to Mortgagor at the date hereof or at a later date,
all
sums evidenced thereby, and all advances paid, and readvanced thereunder and
evidenced thereby. Mortgagee may, at the sole option of Mortgagee, from time
to
time make future advances to Mortgagor, which advances shall be secured by
this
Mortgage; provided, however, that the total principal sum secured hereby and
remain unpaid, including any such advances, shall not at any time exceed twice
the initial amount of the Note secured hereby. All such future advances shall
be
made within twenty (20) years from the date hereof and all indebtedness created
by virtue of such future advances shall be and are secured hereby. All
provisions of this Mortgage shall apply to any future advances made pursuant
to
the provisions of this paragraph. Nothing herein contained shall limit the
amount secured by this Mortgage, if such amount is increased by advances made
by
Mortgagee as herein elsewhere provided and authorized for the protection of
the
security of Mortgage.
Section
47
Hazardous
Waste.
Mortgagor hereby represents and warrants to Mortgagee:
a that
no
oil, petroleum or chemical liquids or solids, liquid or gaseous products, or
hazardous or toxic substances, within the meaning of any applicable statute
or
regulation, are presently stored or otherwise located on or under the Mortgaged
Property or on or under any adjacent and contiguous real property owned by
Mortgagor or any related entity or affiliate substance has occurred on the
Mortgaged Property or on any adjacent and contiguous real property owned by
Mortgagor or any related entity or affiliate of Mortgagor;
b that
no
part of the Mortgaged Property or any adjacent and contiguous real property
owned by Mortgagor or any related entity or affiliate of Mortgagor, including
the groundwater located thereon, is presently contaminated by such hazardous
or
toxic substance;
c that
Mortgagor has not received any notice from any governmental agency or authority
or from any tenant under a lease with respect to any such release of hazardous
or toxic materials onto the Mortgaged Property or adjacent parcels of real
estate. Mortgagor further covenants and agrees with Mortgagee that throughout
the term of the Note;
d all
hazardous or toxic substances, within the definition of any applicable statue
or
regulation, which may be used by any person for any purpose upon the Mortgaged
Property, shall be used or stored thereon only in a safe and approved manner,
in
accordance with all industrial standards and all laws, regulations and
requirements for such storage promulgated by any applicable governmental agency
or authority;
e the
Mortgaged Property will not be used for the purpose of storing such substances;
f the
Mortgaged Property will not be used for the purpose of storing such substances;
and
g no
such
storage or use will otherwise be allowed on the Mortgaged Property which will
cause, or which will increase the likelihood of causing, the release of such
hazardous or toxic substances onto the Mortgaged Property. Mortgagor hereby
agrees to indemnify and save and hold Mortgagee harmless of and from all loss,
cost (including reasonable attorneys’ fees), liability and damage whatsoever
incurred by Mortgagee arising out of or by reason of any violation of any
applicable statue or regulation for the protection of the environment which
occurs upon the Mortgaged Property, or by reason of the imposition of any
governmental lien for the recovery of environmental clean-up costs expended
by
reason of such violation; provided, however, that to the extent that Mortgagee
is strictly liable under any such statute or regulation, Mortgagor’s obligation
to Mortgagee under this indemnity shall likewise be without regard to fault
on
the part of Mortgagor with respect to the violation of law which results in
liability to Mortgagee. A default under this paragraph shall constitute an
Event
of Default under this Mortgage.
Section
48
JURY
TRIAL.
BY ACCEPTANCE HEREOF, MORTGAGOR AGREES THAT NEITHER MORTGAGOR, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF MORTGAGOR (ALL OF WHOM ARE
HEREINAFTER REFERRED TO AS THE “PARTIES”) SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDINGS, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED
UPON
OR ARISING OUT OF THIS MORTGAGE OR ANY INSTRUMENT EVIDENCING, SECURING OR
RELATING TO THE INDEBTEDNESS AND OTHER OBLIGATIONS EVIDENCED HEREBY, ANY RELATED
AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS EVIDENCED
HEREBY OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR
ANY
OF THEM. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH
A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS
NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED
BY
THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NO
PARTY HERETO HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Mortgage and Security Agreement the day and
year first above written.
Xxxxx
Creek Acquisition Company, LLC,
A
Florida Limited Liability Company:
By:
__________________________________________
Xxxxxxx
X. Xxxxxx, Manager/Managing Member
Signed
in the presence of the following witnesses:
__________________________________ _____________________________________
Signature
Signature
__________________________________ _____________________________________
Print
Name of
Witness
Print
Name of Witness
STATE
OF FLORIDA
COUNTY
OF ORANGE
The
foregoing instrument was acknowledged before me this January
3, 2006,
by
Xxxxxxx
X. Xxxxxx as the Manager or Managing Member of Xxxxx Creek Acquisition Company,
LLC, a Florida Limited Liability Company, on behalf of the
company.
He/She
”
is
personally known to me; or ”
has
produced ___________________________ as identification.
Notary
Seal:
____________________________________
Notary
Public
My
Commission Expires:
EXHIBIT
“A” - LEGAL DESCRIPTION
PARCEL
ONE:
LOTS
3 AND 4, IN THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25 SOUTH, RANGE 27 EAST,
OSCEOLA COUNTY, FLORIDA; LESS THAT PART OF SAID LOT 3 LYING SOUTH OF A LINE
1819.04 FEET NORTH OF AND PARALLEL WITH THE SOUTH BOUNDARY OF SAID SOUTHWEST
1/4, ALL IN THE MAP OF FLORIDA FRUIT & TRUCK LAND CO. SUBDIVISION, ACCORDING
TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B" PAGE 68, OF THE PUBLIC RECORDS
OF OSCEOLA COUNTY, FLORIDA.
PARCEL
TWO:
THE
WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25 SOUTH,
RANGE 27 EAST, LESS AND EXCEPT THE SOUTH 1336.22 FEET THEREOF, AND LESS THE
NORTH 435.6 FEET OF THE WEST 100 FEET THEREOF, ALL LYING AND BEING IN OSCEOLA
COUNTY, FLORIDA.
TOGETHER
WITH THE FOLLOWING EASEMENTS FOR INGRESS AND EGRESS:
Parcel
A:
That
portion of the following described land, lying North of Xxxxx Xxxx Xx. 000;
from
the Southwest corner of the West 1/2 of the East 1/2 of the Southwest 1/4 of
Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, run North
89°43'13"
East, along the South line of said Section 2, 305.00 feet to the Point of
Beginning; run thence North 00°01'20" East, parallel to the West line of said
West 1/2 of the East 1/2 of the Southwest 1/4, 850.00 feet; run thence North
89°43'13" East, 50.00 feet; run thence South 00°01'20" West 850.00 feet to the
South line of said Section 2; run thence South 89°43'13" West, 50.00 feet to the
Point of Beginning.
Parcel
B:
A
strip of land 25.0 feet in width each side of the following described line:
From
the Southwest corner of the West 1/2 of the East 1/2 of the Southwest 1/4 of
Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, run North
89°43'13" East, along the South line of Section 2, 330.0 feet; run thence North
00°01'20" East, parallel to the West line of said West 1/2 of the East 1/2 of
the Southwest 1/4, 850.0 feet to the Point of Beginning; continue North
00°01'20" East, 114.39 feet to the Point of a Curve of a 75.00 foot radius curve
to the left, having a central angle of 68°01'20"; run thence along said curve,
89.04 feet to the Point of Tangent; run thence North 68°00'00" West, 198.67 feet
to the Point of a Curve of a 110.0 foot radius curve to the right, having a
central angle of 68°01'20"; run thence along said curve, 130.59 feet to the
Point of Tangent; run thence North 00°01'20" East, 124.34 feet to the end of
said line.
TOGETHER
WITH all rights to Signage Easement reserved in that certain Deed recorded
at
Official Records Book 550, Page 777, of the public records of Osceola County,
Florida.
PARCEL
THREE:
Begin
at the Southeast corner of the Northwest 1/4 of Section 2, Township 25 South,
Range 27 East, Osceola County, Florida, and run N 00°26'22" E, along the East
Boundary of said Northwest 1/4, 500.02 feet; thence run S 89°51'41" W, 819.46
feet; thence S 00°01'20" W, 450.00 feet; thence N 89°51'41" E, along a line
50.00 feet North of and parallel with the South Boundary of said Northwest
1/4
of said Section 2, 296.13 feet to a point of a Curvature of a non-tangent curve
concave Easterly, having a radius of 840.00 feet; thence Southeasterly along
said curve to a point on the South line of said Northwest 1/4 of said Section
2,
lying S 89°51'41" W, 512.10 feet from said Point of Beginning; run thence N
89°51'41" E, 512.10 feet to the Point of Beginning.
