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EXHIBIT 10.70
THIS INSTRUMENT PREPARED BY
AND RETURN TO:
Xxxx X. Xxxxxx, Esquire
Annis, Mitchell, Xxxxxx,
Xxxxxx & Roehn, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxx 00000
MORTGAGE AND SECURITY AGREEMENT
THIS AGREEMENT, made this ____ day of January, 1998, between DIVOT
PROPERTIES WGV, INC. of Hillsborough County, State of Florida, hereinafter
called Mortgagor; and ___________________________. hereinafter called Mortgagee;
W I T N E S S E T H :
Mortgagor, in consideration of the sum of Ten Dollars and other
valuable consideration to Mortgagor paid by Mortgagee, receipt whereof is hereby
acknowledged, does hereby grant, bargain, sell, assign, transfer, convey and
confirm unto Mortgagee, the property situate in St. Xxxxx County, Florida,
described on EXHIBIT "A" attached hereto.
Together with, all buildings, structures and other improvements and all
fixtures, furniture and furnishings, equipment, carpeting, appliances and all
other personalty now on such land or that may hereafter be erected or placed
thereon or acquired therefor, including, but not limited to, all heating,
lighting, plumbing, ventilating, refrigerating, air conditioning, sprinkling,
water and power systems, appliances and fixtures; all elevators, motors and
machinery; all storm and screen windows and doors, screens, awnings, window
shades, bath tubs, sinks, toilets, basins, mirrors, refrigerators, hot water
heaters and ranges, and all substitutions and replacements thereof and all
proceeds thereof, including insurance proceeds, and all shrubbery now growing or
that may hereafter be planted or grown thereon. The real and personal property
described herein is sometimes hereafter collectively called "the property".
Mortgagor also hereby grants, assigns, transfers and conveys to
Mortgagee all rents, issues, income and profits from the property, which are
hereby specifically assigned and pledged to Mortgagee as security for the
payment of the debt herein referred to and Mortgagor's performance of all of
Mortgagor's covenants and agreements herein contained; and also all the crops
and/or produce of every kind now growing or that may be hereafter growing, grown
or produced upon said land or any part thereof.
Mortgagor also hereby grants, assigns, transfers and conveys to
Mortgagee all and singular the ways, easements riparian and other
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rights, and all tenements, hereditaments and appurtenances thereunto belonging
to the Property or in anywise appertaining thereto.
Mortgagor hereby grants to Mortgagee a mortgage and a security interest
in all of the property described in this Agreement and in addition to the rights
of a mortgage, Mortgagee shall have all of the rights of a secured party under
the Florida Uniform Commercial Code.
TO HAVE AND TO HOLD the above described property unto Mortgagee, their
and his heirs, successors and assigns forever.
Mortgagor hereby covenants with Mortgagee that Mortgagor is
indefeasibly seized with the absolute and fee simple title to the property; that
Mortgagor has full power and lawful authority to sell, convey, assign, transfer
and mortgage the same; that it shall be lawful for Mortgagee at any time
hereafter peaceably and quietly to enter upon, have, hold and enjoy the property
and every part thereof; that the property is free and discharged from all liens,
encumbrances and claims of every kind, including all taxes and assessments;
except for taxes and assessments not yet due and payable and governmental
regulations; except taxes accruing subsequent to December 31, 1997 and subject
to those matters set forth in EXHIBIT "B" attached hereto.
That Mortgagor covenants that Mortgagor, at Mortgagor's own expense,
will execute such other and further instruments and assurances to vest absolute
and fee simple title to the property in Mortgagee that may be requested by
Mortgagee; and that Mortgagor will, and his heirs, legal representatives and
successors shall warrant and defend the title to the property unto Mortgagee
against the lawful claims and demands of all persons whomsoever.
This mortgage is given to secure to Mortgagee payment of that certain
promissory note, of even date herewith, made by Mortgagor in the aggregate
original principal amount of One Million Five Hundred Thousand and 00/100
Dollars ($1,500,000.00), accruing interest at the rate of fifteen percent (15%)
per annum on the principal amounts remaining from time to time unpaid, which
note is payable to the order of the Mortgagee at _________________________.
Until full payment of such promissory note, or any extensions or
renewals thereof, in whole or in part, and until payment of all other
indebtedness or liability that may become due or owing hereunder and secured
hereby, if mortgagor shall faithfully and promptly comply with and perform each
and every other covenant and provision herein on the part of Mortgagor to be
complied with and performed, then this Agreement shall be void.
Mortgagor agrees that any additional sum or sums advanced by the then
holder of the Note secured hereby to or for the benefit of Mortgagor, whether
such advances are obligatory or made at the option
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of Mortgagee, or otherwise, at any time within twenty (20) years from the date
of this mortgage, with interest thereon at the rate agreed upon at the time of
each additional loan or advance, shall be equally secured with and have the same
priority as the original indebtedness secured hereby and all such sums shall be
subject to all of the terms and provisions of this mortgage, whether or not such
additional loan or advance is evidenced by a promissory note and whether or not
identified by a recital that it is secured by this mortgage; provided that the
aggregate amount of principal indebtedness outstanding at any one time shall not
exceed the sum of $1,500,000.00 and provided further that it is understood and
agreed that this future advance provision shall not be construed to obligate
Mortgagee to make any such additional loans or advances. It is further agreed
that any additional note or notes executed and delivered under this future
advance provision shall be included in the word "Note" wherever it appears in
the context of this mortgage.
And Mortgagor hereby further covenants as follows:
To pay, with interest, the Note and any extensions or renewals thereof,
in whole or in part, and all other indebtedness or liability hereby secured,
however created or evidenced, promptly when the same respectively becomes due;
to pay and/or discharge any other amounts, indebtedness and/or liability that
may in the future become due, owing or outstanding from Mortgagor to Mortgagee,
however the same may be or may have been contracted, evidenced or accrued; to
pay all taxes and assessments levied or assessed upon the property before the
same become delinquent, and in no event to permit the property, or any part
thereof, to be sold for nonpayment of taxes or assessments, to keep the property
in good repair and to permit, commit or suffer no waste, impairment or
deterioration thereof; to comply strictly with all laws and governmental
regulations and rules affecting said property or its operation; to pay all taxes
that may be levied or assessed on this mortgage or the monies secured hereby; to
permit no mechanic's or other liens arising either by contract or by law, to be
created or rest upon all or any part of the property for ten days without the
same being paid or released, and discharge of the property therefrom procured;
and to pay all costs and expenses incurred or paid by Mortgagee in collecting
the monies hereby secured or in enforcing or protecting the rights and security
of the Mortgagee hereunder, including reasonable attorneys' fees incurred out of
court, at trial, on appeal, or in bankruptcy proceedings, in the event the
mortgage and the Note or other evidence of liability be placed in the hands of
an attorney for collection.
Mortgagor further covenants to keep the buildings, structures and other
improvements now or hereafter erected or placed on the premises and constituting
a part of the mortgage security constantly insured against all loss or damage
for the full insurable value of the property for fire, windstorm and extended
coverage in insurance companies satisfactory to Mortgagee (but Mortgagee shall
not be liable for the insolvency or irresponsibility of any such companies),
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which policies shall provide for not less than 10 days written notice of
cancellation to Mortgagee, and to pay promptly all premiums for such insurance,
the policies representing which shall be delivered to and held by Mortgagee as
additional security for the payment of the indebtedness and liability security
hereby. All sums recoverable on any such insurance policies shall be made
payable to Mortgagee by a loss payable clause satisfactory to Mortgagee, to be
attached to such policies. In the event any such insurance policy shall expire
during the life hereof, Mortgagor agrees to procure and pay for renewal thereof,
with the above requirements, replacing such expired policy and deposit the same
with Mortgagee, together with receipts showing payment in full of premiums
therefor, ten days prior to the expiration date of such policy. In case of loss,
Mortgagee is hereby authorized to adjust and settle any claim under any such
policy and Mortgagee is authorized to collect and receipt for any such insurance
money and to apply the same, at Mortgagee's option, in reduction of the
indebtedness hereby secured, whether due or not, or to allow Mortgagor to use
such insurance money, or any part thereof in repairing the damage or restoring
the improvements or other property without affecting the lien hereof for the
full amount secured hereby.
It is further covenanted that Mortgagee may (but shall not be obligated
so to do) advance monies that should have been paid by Mortgagor hereunder in
order to protect the lien or security hereof, and Mortgagor agrees without
demand to forthwith repay such monies, which amount shall bear interest from the
date so advanced until paid at the rate of fifteen (15%) percent per annum and
shall be considered as so much additional indebtedness secured hereby; but no
payment by Mortgagee of any such monies shall be deemed a waiver of Mortgagee's
right to declare the principal sum due hereunder by reason of the default or
violation of Mortgagor in any of his covenants hereunder.
Mortgagor further covenants that granting any extension or extensions
of the time payment of any part or all of the total indebtedness or liability
secured hereby, or taking other or additional security for payment thereof,
shall not affect this mortgage or the rights of Mortgagee hereunder, or operate
as a release from any liability upon any part of the indebtedness hereby secured
under any covenant herein contained.
It is further covenanted and made of the essence hereof that in case of
default for ten (10) days in the performance of any of the covenants herein on
the part of Mortgagor, then it shall be optional with Mortgagee to consider all
unmatured indebtedness or liability secured hereby, and accrued interest
thereon, as immediately due and payable, without demand and without notice or
declaration of said option, and Mortgagee shall have the right forthwith to
institute proceedings to enforce the collection of all monies secured hereby
and/or to foreclose the lien hereof.
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It is further stipulated and agreed by and between the parties that the
Mortgagee shall have the right to exercise any option or privilege herein given
or reserved and to enforce any duty of the Mortgagor at any time without further
or other notice regardless of any prior waiver by Mortgagee of default of
Mortgagor or delay by Mortgagee in exercising any right, option or privilege or
enforcing such duty of Mortgagor, and no waiver by Mortgagee of default of
Mortgagor nor delay of Mortgagee in exercising any right, privilege or option or
in enforcing any duty of Mortgagor shall be deemed, held or construed to be a
waiver of any of the terms or provisions of this mortgage or of any subsequent
or continuing default.
Mortgagor covenants and agrees to cultivate and properly care for all
growing crops on the property in accordance with prevailing horticulture
practices in the State of Florida.
It is further covenanted and agreed that if at any time in the option
of Mortgagee a receivership may be necessary to protect the mortgaged property,
or its rents, issues, profits, crops or produce, whether before or after
maturity of the indebtedness hereby secured, or at the time of or after the
institution of suit to collect such indebtedness or to enforce this mortgage,
Mortgagee shall, as a matter of strict right and regardless of the value of the
mortgage security for the amounts due hereunder or secured hereby, or of the
solvency of any party bound for the payment of such indebtedness, have the right
to the appointment on ex parte application, and without notice to anyone, by any
court having jurisdiction, of a receiver to take charge of, manage, preserve,
protect and operate the property and to operate and conduct any business located
on the property, to collect the rents, issues, profits and income thereof, to
sell and deliver all crops and produce growing or grown and produced on the
property, to fertilize and care for any xxxxxx on the property, to make all
necessary and needed repairs, and to pay all taxes and assessments against the
property and insurance premiums for insurances thereon and after the payment of
the expenses of the receivership and management of the property to apply the net
proceeds in reduction of the indebtedness hereby secured or in such manner as
the Court shall direct. Such receivership shall, at the option of Mortgagee,
continue until full payment of all sums hereby secured or until title to the
property shall have passed by sale under this mortgage.
It is covenanted and agreed that the terms "Mortgagor" and "Mortgagee"
are used for convenience herein, and such terms and any pronouns used in
connection therewith, shall be construed to include the plural as well as the
singular number, and the masculine, feminine and neuter genders, whenever and
wherever the context so admits or requires; and that all covenants and
obligations of the
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respective parties hereto shall extend to and be binding upon their respective
heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, Mortgagor has hereunto set his hand and seal the
day and year first above written.
Signed, sealed and delivered DIVOT PROPERTIES WGV, INC.,
in the presence of: a Florida corporation
-------------------------
By:
--------------------------------
-------------------------
STATE OF ___________________
COUNTY OF __________________
The foregoing instrument was acknowledged before me this _____ day of
January, 1998, by _____________________, as ________________ of DIVOT
PROPERTIES, WGV, INC., a Florida corporation, on behalf of the corporation.
He/She is personally known to me or has produced _____________________ as
identification.
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NOTARY PUBLIC
Name:
------------------------------
Serial #:
--------------------------
My Commission Expires:
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EXHIBIT "B"
1. Saint Xxxxx DRI Development Order approved under St. Xxxxx County,
Florida Resolution No. 91-130, as modified by Modification of Saint
Xxxxx DRI Development Order under Resolution No. 91-183, as noticed
under Notification of DRI/Development Order recorded in Official
Records Book 922, page 219, as further modified by Modification of
Saint Xxxxx DRI Development Order under Resolution 94-211 and
Resolution 95-06, Resolution 96-102 and Resolution 96-233, as noticed
under Notification of DRI/Development Order recorded in Official
Records Book 1091, page 1119 and Official Records Book 1217, page 437,
all of the public records of St. Xxxxx County, Florida.
2. Water and Wastewater Utility Service Agreement, between Northwest
Utilities I, Inc., SJH Partnership, Ltd. and St. Xxxxx County, Florida
dated January 24, 1995, as recorded in Official Records Book 1094, page
332, of the public records of St. Xxxxx County, Florida.
3. Declaration of Covenants and Restrictions for Saint Xxxxx Northwest
Master recorded in Official Records Book 1185, page 595, public records
of St. Xxxxx County, Florida.
4. Memorandum of Declaration of Voluntary Payment Obligations recorded in
Official Records Book 1185, page 1831, public records of St. Xxxxx
County, Florida.
5. Terms and provisions of Section 9.7 of the Agreement for Sale and
Purchase by and between SJH Partnership, Ltd. and Xxxxxx Brothers, Inc.
dated May 24, 1996, restricting the property from being used for the
sale of package liquor for off-premises consumption.
6. Exclusive rights as to development of timeshare estates, timeshare
licenses or vacation clubs as such programs are defined under Chapter
721, F.S. contained in Special Warranty Deed in favor of Vistana WGV,
Ltd., dated July 24, 1996, recorded in Official Records Book 1185, page
1409, public records of St. Xxxxx County, Florida.
7. Exclusive rights as to golf products store contained in Special
Warranty Deed in favor of WGV Retail, General Partnership dated July
24, 1996, recorded in Official Records Book 1185, page 1519, public
records of St. Xxxxx County, Florida.
8. Declaration of Covenants and Restrictions for Saint Xxxxx Northwest
Residential recorded in Official Records Book 1185, page 740, as
amended in Official Records Book 1198, page 872, Official Records Book
1198, page 890, Official Records Book
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1230, page 1358, and Official Records Book 1252, page 1479, and
Supplementary Declaration of Covenants and Restriction for Saint
Xxxxx-Northwest Residential recorded in Official Records Book 1279,
page 286, all of the public records of St. Xxxxx County, Florida.
9. A 25.0 foot Upland Buffer as shown on survey by Northeast Florida
Surveyors, dated June 5, 1997.
10. Impact Fee Credit Agreement dated November 18, 1997 and recorded
November 24, 1997 in Official Records Book 1278, page 1584 of the
public records of St. Xxxxx County, Florida.
11. Impact Fee Credit Agreement dated November 18, 1997 and recorded
November 24, 1997 in Official Records Book 1278, page 1596 of the
public records of St. Xxxxx County, Florida.
12. Declaration of Covenants and Restrictions for Saint Xxxxx 0 Northwest
Commercial recorded in Official Records Book 1185, page 645, as amended
by Notice of Relocation of Roadways - Saint Xxxxx - Northwest
Commercial recorded in Official Records Book 1198, page 866, and
Supplementary Declaration of Covenants and Restrictions for Saint Xxxxx
- Northwest Commercial recorded in Official Records Book 1998, page
948, all of the public records of St. Xxxxx County, Florida.
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PROMISSORY NOTE
$1,500,000.00 January ___, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of:
__________________________ ("Holder") at its office in _______________________,
or at such other place as Holder hereof may designate, the sum of: One Million
Five Hundred Thousand 00/100 Dollars ($1,500,000.00) of principal, or such
lesser amount as shall equal the aggregate amounts advanced from time to time to
Maker, together with interest on the unpaid balance of principal outstanding
from time to time computed from the date of each advance to Maker to the date of
receipt of payment, at the rate of fifteen percent (15%) per annum. Principal
and interest shall be due and payable on June 30, 1998.
Payment of any installment shall be first applied to accrued interest to the
date of receipt thereof, and the balance, if any, to principal.
Maker may prepay this Note in full or in part, without penalty, but any such
prepayment shall be first applied to accrued interest, and the balance, if any,
to principal.
All past due interest shall bear interest at the rate eighteen percent (18%) per
annum.
Nothing herein, nor any transaction related hereto, shall be construed or so
operate as to require the Maker to pay interest at a greater rate than shall be
lawful. Should any interest or other charges paid by the Maker in connection
with this Note result in the computation or earning of interest in excess of the
maximum legal contract rate of interest which is legally permitted under the
laws of Florida, from time to time, then any and all such excess shall be, and
the same is, hereby waived by the Holder, and any and all such excess shall be
automatically credited against and in reduction of the principal balance due
under this indebtedness and any portion which exceeds the principal balance due
under this Note shall be paid by the Holder to the Maker. At the maturity of
this Note (or prior thereto, in the event of any permitted prepayment, or if the
Holder accelerates payment thereof), if the total amount of interest paid, and
any other charge upon the principal, exceeds the maximum legal contract rate
permitted by law, such interest shall be recomputed and any such excess shall be
credited to principal or returned to the Maker.
The indebtedness evidenced by this Note is secured by a certain Mortgage and
Security Agreement, dated as of the date of this Note, encumbering property
located in St. Xxxxx County, Florida.
Upon the occurrence of any "event of default", the events constituting an "event
of default" being hereinafter defined and
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enumerated, Holder hereof, at Holder's sole election, may declare all or any
portion of the principal of and accrued interest on this Note to be immediately
due and payable, and may proceed at once and without further notice to enforce
this Note or any instrument securing or security for this Note, or both, in
accordance with their terms. Failure of Holder to exercise this option at any
time or times shall not be construed as a waiver thereof by Holder, nor shall
Holder be prohibited from thereafter exercising such option at any subsequent
time.
Each of the following events shall constitute an "event of default": (1) failure
to pay any installment of principal or interest on the Note, or any renewal or
extension thereof, when due; (2) failure to perform or to comply with any of the
obligations imposed by any instrument given to secure the indebtedness evidenced
by the Note or by any other agreement or undertaking of Maker securing or
related to this Note; (3) failure by Maker to pay any obligation, whether direct
or contingent, for borrowed money, or to perform or observe the terms of any
instrument pursuant to which such obligation was created or secured, except when
such obligation is being contested in good faith by Maker; (4) if any warranty,
representation or statement made or furnished to Holder by or on behalf of Maker
or any guarantor in connection with the loan to Maker proves to have been false
in any material respect when made or furnished; (5) the death of any individual
Maker, guarantor or any other person primarily or secondarily responsible for
the repayment of this Note; (6) loss, theft, substantial damage, destruction,
abandonment, sale or encumbrance to or of any of the collateral securing payment
of this Note, or the making of any levy, seizure or attachment thereof or
thereon; (7) if Maker or any guarantor becomes insolvent or bankrupt, or ceases,
is unable, or admits in writing his inability to pay his debts as they mature,
or makes a general assignment for the benefit of, or enters into any composition
or arrangement with, creditors; or (8) if proceedings are commenced for the
appointment of a receiver, trustee or liquidator of Maker or any guarantor, or
of a substantial part of his assets or if any bankruptcy, reorganization,
readjustment of debt, insolvency, dissolution, liquidation or similar
proceedings are commenced, voluntarily or involuntarily, and, if involuntarily,
are not discharged within thirty (30) days.
Maker, and any endorser, surety, or guarantor of this Note hereby severally
waives demand, protest, presentment, notice of nonpayment, notice of protest and
diligence in bringing suit against any party and does hereby consent that time
of payment of all or any part of the amount due hereunder may be extended from
time to time by Holder hereof without notice.
Maker, and any endorser, surety, or guarantor further agree, jointly and
severally to pay all costs of collection, including, in case the principal of
this Note or any payment of the principal or any interest thereon is not paid at
the respective maturity thereof, or in case it becomes necessary to protect the
security thereof, whether
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suit be brought or not, attorneys' fees, court costs, collection expenses and
other expenses which Holder may incur or pay in the prosecution or defense of
its rights hereunder, whether in judicial proceedings, including bankruptcy
court and appellate proceedings, or whether out of court.
No delay or failure of Holder in the exercise of any right or remedy hereunder
or under any other agreement or undertaking securing or related hereto shall
affect any such right or remedy, and no single or partial exercise of any such
right or remedy shall preclude any further exercise thereof, and no action taken
or omitted by Holder shall be deemed a waiver of any such right or remedy.
This Note shall be binding upon Maker and the personal representatives, heirs
and assigns of each of them and upon Holder and its successors and assigns.
This Note shall be construed and enforced in accordance with applicable Florida
and Federal law.
It is agreed that time is of the essence and that, in the event of any default
in payment of any installment for a period of fifteen (15) days, the Holder of
this Note may, at Holder's option, declare all of the remainder of the debt due
and payable. Any failure to exercise such option shall not constitute a waiver
of the right to exercise the option at any other time.
DIVOT PROPERTIES, WGV, INC.,
a Florida corporation
By:
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Name:
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Its:
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ASSIGNMENT OF NET SALES PROCEEDS
This ASSIGNMENT OF NET SALES PROCEEDS is made and entered as of the
____ day of January, 1998, by and between THE GAUNTLET AT XXXXXX XXXX, INC., a
Virginia corporation ("Assignor"), and ____________________________ (the
"Assignee").
RECITALS
WHEREAS, Divot Properties WGV, Inc., a sister corporation of Assignor
("Divot"), is indebted to Assignee as evidenced by that Promissory Note (the
"Note") dated as of January __, 1998 in the aggregate original principal amount
of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00);
WHEREAS, the Note is secured by that certain Mortgage and Security
Agreement dated as of January __, 1998 (the "Mortgage"), which will be recorded
in the Public Records of St. Xxxxx County, Florida.
WHEREAS, as further security for the Note, Assignor has agreed to
assign to Assignee the net sales proceeds (as hereinafter defined) from any sale
of certain property owned by Assignor in Xxxxxxxx County, Virginia, known as the
Gauntlet at Xxxxxx Xxxx Golf Course ("Xxxxxx Xxxx") and which is more
particularly described in EXHIBIT "A" attached hereto.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and undertakings hereinafter set forth, the parties hereby agree as
follows:
1. Assignment of Net Sales Proceeds. Assignor hereby assigns unto
Assignee all of its right, title and interest to the Net Sales Proceeds from the
sale of Xxxxxx Xxxx. As used herein, "Net Sales Proceeds" shall mean the gross
sales price of Xxxxxx Xxxx, less sales commissions, closing costs and the amount
payable to the holder of the first mortgage on Xxxxxx Xxxx in full and complete
satisfaction of said mortgage. This Assignment of Net Sales Proceeds shall
terminate at such time as Divot has paid the Note in full, and upon payment of
the Note in full, Assignee shall deliver to Assignor a termination of this
Assignment in recordable form. Until such termination, Assignor shall direct the
closing agent for any sale of Xxxxxx Xxxx to pay the Net Sales Proceeds
therefrom directly to Assignee.
2. Default. A default shall have occurred hereunder if the Assignor
shall fail to pay in full the Net Sales Proceeds to Assignee at the closing of
any sale of Xxxxxx Xxxx.
3. Governing Law. This instrument is to be construed in all respects
and enforce according to laws of the State of Florida.
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4. Binding Effect. This instrument shall be binding upon and incur to
the benefit of the Assignor and Assignee and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties have executed this agreement on the day
and year first above written.
THE GAUNTLET AT XXXXXX XXXX, INC.,
a Virginia corporation
By:
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Name:
---------------------------------------
Its:
----------------------------------------
STATE OF _____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ______ day of
January, 1998, by ___________________________________, as __________________ of
THE GAUNTLET AT XXXXXX XXXX, INC., a Virginia corporation, on behalf of the
corporation. He/She is personally known to me or has produced __________________
as identification.
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NOTARY PUBLIC
Name:
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Serial #:
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My Commission Expires:
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CONTINUING GUARANTY
To: _____________________________ January ___, 1998
("Lender")
Gentlemen:
In consideration of and to induce the Lender to make or maintain loans,
advances of money and extensions of credit granted to DIVOT PROPERTIES WGV,
INC., a Florida corporation (hereinafter the "Borrower"), and to grant to
Borrower such renewals, extensions, modifications, and forebearances as Lender
may deem advisable, the undersigned (hereinafter the "Guarantor") and with full
knowledge that Lender intends to rely hereon, hereby jointly and severally,
unconditionally guarantees to the Lender and its assigns, Borrower's full and
prompt payment when due, whether at stated maturity, by acceleration or
otherwise, of all Borrower's indebtedness to Lender arising out of that certain
Promissory Note of even date herewith in the original principal amount
$________________ (the "Obligation").
In furtherance of the above Obligation, Guarantor further agrees to all
of the following:
1. This Guaranty is and shall be construed as a continuing, unlimited,
absolute and unconditional guaranty of payment of the Obligation (and not merely
of collection), without regard to the legality, validity, regularity or
enforceability of any of the Obligation, any of the agreements pursuant to which
any of the Obligation arose or were created or any other agreement related
thereto, and without regard to any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge of a surety or guarantor
including, without limitation, a defense of statute or limitation or laches or
to assert any right of setoff or counterclaim. The effectiveness of this
Guaranty is in no way conditional upon any requirement that the Lender first
attempt to collect any of the Obligation from the Borrower.
2. The liability of any individual Guarantor hereunder is primary and
independent of the liability of any other Guarantor and of any other guaranties
at any time in effect with respect to all or any part of the Obligation. Each
Guarantor's liability hereunder may be enforced regardless of the existence of
any other Guarantors. Separate action or actions may be brought and prosecuted
against any Guarantor whether or not action is brought and prosecuted against
Borrower or any other Guarantor.
3. The Lender shall have the absolute right, without giving notice to
or obtaining the assent of a Guarantor and without relieving Guarantor of
liability hereunder, to deal with the Borrower and each other party who now is
or after the date hereof
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becomes liable in any manner (including an assumption of an Obligation) for the
Obligation, in such manner as the Lender in its sole discretion deems fit. For
this purpose, Guarantor gives to the Lender full authority in its sole
discretion to do any or all of the following things: (a) extend credit, make
loans and afford other financial accommodations to the Borrower at such times,
in such amounts and on such terms as the Lender may approve; (b) vary the terms
(including any increase in the interest rate) and grant renewals, extensions or
modifications of any present or future Obligation of Borrower to the Lender; (c)
grant time, waivers and other indulgences in respect thereto; (d) vary,
exchange, release or discharge wholly or partially the Obligation of Borrower,
or delay in or abstain from perfecting and enforcing any security interest, or
guaranty or other means of obtaining payment of any Obligation which the Lender
now has or acquires after the date hereof; (e) substitute or release all or part
of any security now or hereafter held by Lender; (f) make a settlement with one
or more Borrower for less than the aggregate amount of Borrower's Obligation and
thereafter release Borrower from liability for its Obligation; (g) accept
partial payments from Borrower or any other party; (h) release or discharge,
wholly or partially, any endorser or any Guarantor; (i) make a settlement with
one or more Guarantor for less than the aggregate amount of Borrower's
Obligation and thereafter release a Guarantor from liability hereunder; and (j)
compromise or make any settlement or other arrangement with Borrower. Lender
shall not be obligated to inquire into the motives or purposes of any actions by
Borrower in relation to the Obligation as a precondition to Guarantor's
liability under the Guaranty, nor shall any act or omission by Lender affect or
impair this Guaranty.
4. The amount of liability of Guarantor and all rights, powers, and
remedies of Lender hereunder and under any other agreement now or at any time
hereafter in force between Lender and Guarantor, including any other guaranty
executed by Guarantor relating to any Obligation, shall be cumulative and not
alternative and such rights, powers and remedies shall be in addition to all
rights, powers and remedies given to Lender by law.
5. Guarantor warrants to Lender (a) it has disclosed to Lender in
writing all known defaults of any of its personal or business Obligation and
those business entities in which it is a principal and of any and all actions
and proceedings pending or threatened against it or its business entities and
will advise Lender of any such defaults that may occur in the future; and (b)
nothing exists to impair the immediate taking effect of this Guaranty and the
effectiveness of this Guaranty.
6. Guarantor agrees to pay any deficiency remaining after the Lender
realizes on any collateral security for Obligation by sale or resale (whether
furnished by Borrower, Guarantor or a third party) but the Lender shall not be
required to first proceed
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against such security. Upon the occurrence of any default by Borrower in any of
its Obligation with Lender, Lender shall have immediate right, without notice or
demand, to setoff against Guarantor's Obligation hereunder all money owed by
Lender to Guarantor. Lender shall be deemed to have exercised such right to
setoff and to have made a charge against any such money immediately upon the
occurrence of such default even though such charge is made or entered in the
books of the Lender subsequent thereto. Lender will notify Guarantor after any
such setoff, but failure to do so shall not invalidate the setoff. Guarantor
authorizes Lender to xxxx its books and records to reflect all of the described
security interests and liens and act otherwise in recognition thereof.
7. Guarantor hereby subordinates any debt currently or which hereafter
may be owed to it by Borrower to the Obligation guaranteed hereunder and, upon
request of the Lender, Guarantor will execute a separate subordination
agreement. Guarantor further agrees that, to the extent it becomes subrogated to
the Lender's rights by virtue of having made payments to the Lender on behalf of
Borrower, such rights in subrogation shall be subordinate to the rights of the
Lender with respect to any unpaid Obligation and agrees that it shall not be
entitled to enforce or receive payment until all Obligation have been fully
paid. Should Borrower make any payment to Guarantor, Guarantor shall hold such
sum in trust and deliver same forthwith to Lender to be applied against the
Obligation, in accordance with the discretion of Lender.
8. This instrument contains the entire agreement of the parties as a
final expression of this Guaranty. There are no pre-existing representations or
conditions precedent (oral or written) respecting the effectiveness of this
Guaranty. No provisions of this Guaranty can be changed, waived, discharged or
terminated except by an instrument in writing signed by the Lender and
Guarantor, which expressly refers to the provision of this Guaranty to which
such instrument relates. No such waiver shall extend to, affect or impair any
right with respect to any Obligation which is not expressly dealt with therein.
No course of dealing, course of performance or trade usage and no parol evidence
of any nature, shall be used to supplement or modify any terms. No delay or
omission on the part of the Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto and any waiver of a right in
any instance shall not be deemed a waiver in any other instance. A waiver or
modification with reference to any one event shall not be construed as
continuing, nor shall it be construed as a bar to, or a waiver or modification
of, any subsequent right, remedy or recourse to a subsequent event.
9. If for any reason Borrower has no legal existence or is under no
legal obligation to discharge any of the Obligation undertaken or purported to
be undertaken by it or on its behalf, or if any of the monies included in the
Obligation have become unrecoverable from Borrower by operation of law, pursuant
to any
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bankruptcy proceeding, or for any other reason, this Guaranty shall nevertheless
be binding on Guarantor to the same extent as if Guarantor at all times had been
the principal borrower on all such Obligation. This Guaranty shall be in
addition to any other guaranty or other security given for the Obligation, and
it shall not be prejudiced or rendered unenforceable by the invalidity of any
such other guaranty or security.
10. Upon any default by Borrower in the full and prompt payment and
performance of any of the Obligation, the liabilities and Obligation of
Guarantor hereunder shall at the option of the Lender, become forthwith due and
payable to the Lender without demand or notice of any nature, such demand or
notice being expressly waived by Guarantor.
11. In the event a voluntary petition or an involuntary petition (not
discharged or dismissed within sixty days of its filing), is filed by or against
Borrower under the United States Lenderruptcy Code of 1978, or any similar or
successor law, or a receiver, custodian, or liquidator is appointed for
Borrower, Guarantor shall, jointly and severally, without demand or notice,
immediately become liable for the payment of the then unpaid principal balance,
together with accrued and unpaid interest thereon, of Borrower's Obligation to
Lender, whether or not the Lender is prohibited from seeking payment of the
Obligation from Borrower by acceleration thereof, or whether or not said filing
operates as a stay of any action on the part of Lender to seek enforcement or
collection of such Obligation from Borrower or against any collateral of the
Borrower which the Lender has or may have.
12. Guarantor waives notice of acceptance hereof, notice of incurring
future Obligation by Borrower, notice of any action taken or committed by the
Lender in reliance hereon, of any requirement that the Lender be diligent or
prompt in making demands hereunder, or that it give notice of any default by the
Borrower or of the assertion of any other right of the Lender hereunder.
Guarantor also irrevocably waives to the fullest extent permitted by law, all
defenses which at any time may be available in respect of its Obligation
hereunder by virtue of any homestead exemption, statute of limitations, stay,
moratorium law or other similar law now or hereafter in effect. Guarantor also
irrevocably waives any duty on the part of Lender to disclose to Guarantor any
facts it may now or hereafter know about Borrower. Guarantor acknowledges it is
fully responsible for being informed and continuing to remain informed of the
financial condition of Borrower and of all circumstances bearing on the risk of
non-payment of any Obligation.
13. Guarantor further waives any defense to enforcement of this
Guaranty because of Lender's failure to preserve, perfect or continue perfecting
any security interest now or hereafter held by Lender securing the Obligation,
or any requirement for valuation
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and appraisal of collateral security or diligence in collection, or Lender's
failure to claim or make any claim in any insolvency proceeding involving
Borrower or any other Guarantor of the Obligation, or because of Lender
releasing any one or more but not all the Guarantors from liability hereunder,
or because of any right of setoff or counterclaim against the Borrower in
respect of any liability of any Guarantor to Borrower including any proceeding
under the Lenderruptcy Code or insolvency proceeding of any nature.
GENERAL
14. "Guarantor" and "Borrower" as used in this Guaranty, as well as
related pronouns, nouns and verbs, shall denote the singular and the plural, as
well as natural or artificial persons, as appropriate.
15. This Guaranty shall be construed and enforced in accordance with
and governed by the laws of the State of Florida. Wherever possible each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. The caption or heading at the beginning of each section is for the
convenience of the parties and are not part of the Guaranty.
16. Any demand or notice to Guarantor shall be in writing and shall be
effective when delivered to Guarantor's last known address or mailed or sent by
telegraph to Guarantor's address as shown on the records of the Lender.
17. If at any time all or any part of any payment theretofore applied
by the Lender to any Obligation hereby guaranteed is or must be rescinded or
returned by the Lender for any reason whatsoever (including without limitation
the insolvency, bankruptcy or reorganization of Borrower), such indebtedness
shall for the purpose of this Guaranty, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application by the Lender, and this Guaranty shall continue
to be effective or be reinstated, as the case may be, as to such indebtedness as
though such application by the Lender had not been made.
18. Any notices or documents given by Guarantor to Lender shall be in
writing and shall be sent to the address set forth at the beginning of this
Guaranty. Notices of termination of this Guaranty must comply with the terms
stated in the section entitled "Duration of Guaranty."
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19. Guarantor further agrees, as the principal obligor and not as
Guarantor only, to pay to the Lender forthwith upon demand, in funds immediately
available to the Lender, all costs and expenses (including court costs,
paralegal expenses, out-of-pocket expenses, and reasonable legal fees of
counsel, including trial, appellate, post-judgment collection and bankruptcy
proceedings) incurred or expended by the Lender (a) in connection with this
Guaranty and the enforcement hereof, and (b) in connection with Lender's
attempts to collect the Obligation from Borrower, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the maximum rate of interest permitted under applicable law.
20. Lender may from time to time, without notice to Guarantor, assign
or transfer all or a portion of any Obligation or any interest therein, and each
and every assignee or transferee of the Obligation or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Obligation, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were the Lender; provided, however, that the
foregoing shall in no way restrict or preclude the assignee from qualifying as a
holder in due course under the Uniform Commercial Code.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
on the day and year aforesaid.
WITNESSES: BRASSIE GOLF CORPORATION
By:
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Print Name: Title:
------------------------
-----------------------------------
Print Name: ("Guarantor")
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STATE OF
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COUNTY OF
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The foregoing was acknowledged before me this ____ day of January,
1998, by ________________________________, as _____________ of Brassie Golf
Corporation and on its behalf, who is personally known to me or who has produced
____________________ as identification.
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NOTARY PUBLIC
Name:
------------------------------
My Commission Expires:
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