E-156
Exhibit No. 9
IBF VI - Guaranteed Income Fund
Form SB-2
AMENDED
LOAN AGREEMENT
AGREEMENT made as of this 12th day of September 1998 by and
between [name] and [name] jointly and severally ("Borrower"),
and IBF Special Purpose Corp. III (Lender).
WITNESSETH:
Borrower desires to borrow and Lender desires to lend to Borrower
and make available to it, for Borrower's use in connection with
the acquisition of certain real property for development of a
hotel project on real property described on Exhibit A hereto and
to be known as Pond Bay Club in St. Xxxx. U.S. Virgin Islands
(the "Project" or the "Property") in the principal sum of
$1,520,000.00 pursuant to the terms hereof.
WHEREAS, Borrower and Lender herein entered into a certain Loan
Agreement dated September 12, 1998 regarding a loan in the
principal sum of $1,240,000.00; and
WHEREAS, the parties hereto desire to amend the said Loan
Agreement by increasing the principal amount to $1,520,000.00 and
by adding [name] a U.S. Virgin Islands corporation as a mortgagor
jointly and severally with [name], and for all other terms to
remain as stated.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
A. The Loan.
Section 1.01 Loan. The amended total amount of the loan to be
advanced hereunder shall be $1,520,000.00 (the "Loan"). Lender
shall make advances to or on behalf of Borrower up to the loan
amount. Borrower has executed and delivered to Lender a Grid Note
of even date (the "Note") in the principal amount of the Loan.
Lender is hereby authorized as attorney-in- fact, with an
interest, to make entries on the Note evidencing each advance as
well as each repayment of principal.
B. Term of Credit Facility. The term of the credit facility
shall be twenty-four months (24 months), provided, however,
that the outstanding amount of the credit facility including
any accrued but unpaid interest shall be automatically due
upon and simultaneously with the placement of any
construction loan mortgage or the sale of the Property.
C. Interest Rates. Borrower shall pay to Lender interest on the
aggregate daily loan balance at twelve percent (12%) per
annum. Interest is calculated on the basis of a three
hundred sixty (360) day year and charged for the actual days
elapsed. If any installment is not paid within 10 days from
when it was due, a charge of 6% will be added. Default
interest shall accrue from and after an Event of Default has
occurred. as defined in the Loan Agreement at the highest
rate allowed under applicable law.
ARTICLE II
Representations and Covenants.
Section 2.0 1. Representations. Borrower represents and warrants
to Lender which representations shall be true as of the date
hereof as well as of the date of each subsequent advance that:
(a) Borrower has the power and authority to execute,
deliver, and perform this Agreement. and each of the
other documents executed in connection therewith
(collectively, the "Loan Documents") . to own its
properties and to carry on its business as now
conducted;
(b) The execution, delivery, and performance of the Loan
Documents (i) have been duly authorized by all
requisite action of Borrower; (ii) does not violate any
provision of law, Borrower's Certificate of
Incorporation or its Bylaws, any order of any court or
other agency, or any agreement to which Borrower is a
party or by which Borrower is bound; and (iii) will not
be in conflict with, result in a breach or constitute
(with due notice or lapse of time or both) a default
under any such agreement:
(c) There are no actions, suits, or proceedings before or
by any federal, state, municipal, or other governmental
department, commission, board, bureau, agency, or
instrumentality pending against Borrower which if
determined adversely to Borrower, would have a material
effect on Xxxxx or the Property;
(d) No event of Default has occurred under this Agreement
and no default has occurred under any of the other Loan
Documents;
(e) Borrower makes no claim that the terms of the Note,
including without limitation the interest rate thereon,
nor anything contained herein is usurious nor that
there exists any offset, deduction, or defense with
respect to Borrower's obligations under the Loan
Documents;
(f) Borrower's title to the assets constituting the Project
are free and clear of any liens, charges, or
encumbrances;
(g) There are no outstanding judgments against Borrower
which have not been paid;
(h) There has been no material adverse change in the
financial position or condition of Borrower since the
date of the first Advance;
(i) There are no impediments to the full and complete
performance by Borrower hereunder or under any of the
Loan Documents.
Section 2.02 Certain Covenants. Borrower covenants and agrees
that so long as this Agreement shall remain in effect or any
principal of or interest on the Loan shall be unpaid, to:
(a) Pay all sums due and owing under the Note pursuant to
its terms;
(b) Do or cause to be done all things necessary to preserve
and keep in full force and effect its existence under
the laws of its State of incorporation;
(c) Give prompt notice to Lender (i) any proceedings of
which Borrower has notice instituted by or against
Borrower, and (ii) any other action, event, or
condition of any nature which the management of
Borrower reasonably believes could have, lead to, or
result in a material adverse affect upon the business,
assets, or financial condition of Borrower;
(d) Refrain from mortgaging, pledging, granting, or
permitting any security interest, lien, or encumbrances
of any nature in any amount to exist with respect to
any of Borrower's property including without limitation
the Property, except where such security interest,
lien, or encumbrance is for the benefit of Lender, or
except as approved by Lender in any mortgage or deed of
trust given to secure the Loan;
(e) Not incur any additional indebtedness except, in the
ordinary course of business, with customary time
payment arrangements with vendors and suppliers;
(f) Pay all sums that may be necessary to be paid in order
to enforce the Note and to enforce and/or to record any
agreement or any other documentation executed and
delivered in connection with the Note, including, but
not limited to, this Agreement, whether such sums be in
the nature of recording fees, mortgage tax, or any
other expense in connection with such recording;
(g) Provide Lender with monthly financial and progress
reports.
Section 2.03 Negative Pledge Covenants. Borrower pledges,
covenants, and agrees that so long as this Agreement shall remain
in effort or the principal of or interest on the Loan shall
remain unpaid it shall not, without the prior written consent of
Lender, do any of the following:
(a) Sell, transfer, or otherwise convey, either voluntarily
or involuntarily, all or any portion of the Property or
any interest or estate therein;
(b) Grant or suffer to exist any unsecured financing or
grant or suffer to exist any mortgage, pledge, lien.
secured interest, hypothecation, or other encumbrances
upon any portion of the Property including any personal
property owned by Borrower now or hereafter placed in
or attached to and necessarily used in connection with
the Property except as may be approved by Lender,
(c) Enter into any leasing arrangement of any kind in
respect of all or substantially all of the Property;
(d) Suffer or permit any mechanics' or other statutory lien
which is filed against the Property to remain
undischarged or not bonded for a period exceeding sixty
(60) days beyond the filing date thereof. Borrower has
executed and delivered a document containing the
covenants set forth above for recordation.
ARTICLE III
Guaranty and Collateral
Section 3.1 Guarantors. The limited guaranty of certain acts of
Borrower (the "Carve-outs") by Xxxxxx Xxxxxx III shall be
delivered to Lender simultaneously herewith.
Section 3.2 Simultaneously with the execution of this Agreement.
Borrower has delivered to Lender a first mortgage encumbering the
Property (the "Mortgage").
ARTICLE IV
Origination Fee
Borrower agrees to compensate Lender in connection with its due
diligence, and originating the Loan by the payment of an
origination fee of $62.000, payable simultaneously with and out
of the proceeds of the First Advance and $16,700 payable
simultaneously with an out of the proceeds of the December, 1998
advance.
ARTICLE V
Interest Reserve
At the First Advance, Lender is authorized by Borrower to
withhold $240,000 from loan proceeds, which funds shall be
applied by Lender monthly, in satisfaction of the interest
requirements of this credit facility.
Section 5.1 Fees. Borrower authorizes Lender to disburse from the
First Advance, the sum of $12,500 to reimburse Lender for out-of-
pocket expenses and legal counsel fees in connection with this
Agreement. Any additional costs and expenses incurred by Lender
shall be reimbursed from future advances.
ARTICLE VI
Condition to Release of Collateral
In addition to the full satisfaction of all outstanding sums due
Lender, and as a condition to the release of the collateral,
Borrower shall deliver to Lender an assignment and direction of
payment in form and content reasonably satisfactory to Lender's
counsel, of 5% of the net proceeds realized by Borrower from the
sale of the Property as a whole or from each condominium or time-
share unit sale made by Borrower, but only after Borrower and its
partners, if any, have been repaid their equity contribution.
"Net Proceeds" shall mean the gross selling price less repayment
of third-party debt obligation needed to be released in
connection with the sale as well as actual third-party expenses
which are necessary to the transaction, such as reasonable
closing costs.
ARTICLE VII
Default
Section 7.01 Events of Default. Each of the following shall
constitute an "Event of Default" under this Agreement:
(a) If any representation or warranty made in connection
with this Agreement shall prove to be incorrect in any
material respect;
(b) The failure to make any payment of principal or
interest under the Note within ten (10) days after the
due date thereof other than regular interest to the
extent of the funds described in Article V.
(c) A default in respect of the Mortgage or any liabilities
or obligations (present or future, absolute or
contingent. secured or unsecured, matured or unmatured,
joint or several, original or acquired) of Borrower, or
any of its affiliates, to Lender, after the expiration
of any applicable grace, notice, or cure period;
(d) The admission (whether in writing or otherwise) by
Borrower of its inability to pay its debts generally as
they become due;
(e) The commencement by Borrower or any Guarantor of a
voluntary case (or other proceeding) under the Federal
Bankruptcy Code, as now constituted or hereafter
amended, or under any other applicable foreign or state
bankruptcy, insolvency, or other similar law; or the
continued existence for more than sixty (60) days in
respect of Borrower of any guarantor of an involuntary
case (or other proceeding) under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under
any other applicable bankruptcy, insolvency, or other
similar law; or the appointment of a receiver,
liquidator, assignee, custodian, manager, trustee,
sequestrator, or similar official of Borrower or any
Guarantor or for any substantial part of its business,
or the making by Borrower or any Guarantor of any
assignment for the benefit of creditors; of the failure
of Borrower generally to pay its debts as they become
due; of the taking by Borrower of action to do or
authorize any of the foregoing or in the furtherance of
any of the foregoing;
(f) The commission by borrower of (a) fraud or
misrepresentation, (b) gross negligence resulting in
loss of the Property, (c) misapplication of the
proceeds of the funds advanced hereto.
Section 7.02 Effect of Default.
(a) Upon the occurrence of an Event of Default, Lender, in
its sole and absolute discretion, may (i) declare all
of the Loan to be immediately due and payable and/or
exercise such of the other remedies provided for in the
Loan Documents as Lender may elect; and/or (ii) pursue
any other rights or remedies available to Lender under
this Agreement or the other Loan Documents. Upon the
occurrence of an Event of Default interest shall accrue
at the highest rate allowed under applicable law;
(b) Without limiting any remedy otherwise available to
Lender, Borrower shall pay a late charge, to the extent
permitted by law, of six cents ($0.06) per each dollar
($1.00) of each payment more than ten (10) days in
arrears and accepted by Lender, to cover the extra
expense involved in handling delinquent payments;
(c) If Borrower fails to observe or perform any of the
covenants or agreements on the part of Borrower to be
performed hereunder, then Lender may, but shall not be
obligated to, perform the same and all necessary and
reasonable costs incurred by Lender in performing
Borrower's covenants and agreements, including
reasonable counsel fees, shall be repair by borrower
upon demand, together with interest thereon at the
default rate under the Note.
Section 7.03 No Waiver.
(a) Any failure of Lender to exercise its option to declare
the Credit Loans immediately due and payable, or any
forbearance to exercise any other remedy of Lender, or
any withdrawals or abandonment of Lender of any of its
rights in any one circumstance. shall not be construed
as a waiver of any option, power, remedy, or right of
Lender hereunder except to the extent, if any, the
action of Lender constitutes an express waiver with
respect to such on circumstance. The rights and
remedies of Lender expressed and contained in this
Agreement and in the other Loan Documents are
cumulative and none of them shall be deemed to be
exclusive of any other or of any right or remedy Lender
may now or hereafter have in law or in equity. The
election of any one or more remedies shall not be
deemed to be an election of remedies under any statute,
rule, regulation, or other law;
(b) The obligations of Borrower (and the rights and
remedies of Lender against Borrower) hereunder shall in
no way be modified, abrogated, terminated, or adversely
affected by (i) any forbearance by Lender in collecting
any sums due, or (ii) the granting of any extension of
time to perform any obligation hereunder, or (iii) any
impairment of the collateral, if any, which may now or
hereafter be assigned or delivered to Lender to secure
payment of the Credit Loans, by reason of any act,
failure to act or negligence of Lender.
ARTICLE VIII
Miscellaneous
Section 8.01 Notices. All notices to be given hereunder shall be
delivered by hand, or sent to the party to be notified via
certified mail, return receipt requested or sent by recognized
overnight courier which provided evidence of receipt and shall be
deemed given when delivered by hand or one (1) day after delivery
to such recognized overnight courier or three (3) days after
being posted with the United States Postal Service addressed to
the parties as follows:
If to Lender at: IBF Special Purpose Corporation III
0000 Xxxxxxxxxxx Xxxxxx
Washington, D. C. 20009
If to Borrower at: [name]
It is understood and agreed that notice to either Borrower entity
herein shall be notice to both
Borrowers.
Section 8.02 Successors and Assigns. The terms Borrower and
Lender shall include the named Borrower and the named Lender and
their respective legal representative successors and assigns.
Section 8.03 Severability. If any or more of the provisions
contained in this Agreement or in any of the other Loan Documents
shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this
Agreement or any other of the other Loan Documents.
Section 8.04. Expenses of Lender. Borrower shall pay all out-of-
pocket expenses, including but not limited to Counsel fees
incurred by Lender in connection with the preparation, execution,
and delivery of this Agreement and the enforcement or amendment
of any of its rights or provisions hereunder.
Section 8.05 Indemnity. Borrower shall indemnify and hold
harmless Lender from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits
proceedings. judgments, costs, expenses, and disbursements,
including but not limited to counsel fees, in any way relating to
or arising out of the failure of Borrower to perform in full its
obligations under this Agreement or under any of the Other Loan
Documents.
Section 8.06 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Virginia without regard to conflict of laws principles.
Section 8.07. Jurisdiction. ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN A COURT OF
RECORD OF THE STATE OF VIRGINIA OR THE FEDERAL DISTRICT COURT IN
THE STATE OF VIRGINIA.
Section 8.08 Waiver of Certain Defenses. IN ANY ACTION OR
PROCEEDING IN CONNECTION WITH THIS AGREEMENT, OR ANY OTHER LOAN
DOCUMENT, BORROWER WAIVES ANY CLAIM THAT ANY FORUM LISTED HEREIN
IS INCONVENIENT AND FURTHER WAIVES THE RIGHT TO INTERPOSE ANY
DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR ANY CLAIM OF
LACHES AND ANY SET-OFF OR COUNTERCLAIM OF ANY NATURE OR
DESCRIPTION EXCEPT FOR ANY COUNTERCLAIMS DEEMED COMPULSORY UNDER
APPLICABLE COURT RULES OR STATES.
Section 8.09 Waiver of Jury Trial and Waiver of Certain Damages.
IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, LENDER AND BORROWER MUTUALLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY AND BORROWER
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM
FOR CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES.
Section 8. 10 Joint and Several Liability. If this Agreement is
executed by more than one person or entity, all representations,
warranties, obligations, and covenants made by Borrower hereunder
shall be deemed to have been made by each of such persons and
entities and the obligations and duties of such parties hereunder
shall be deemed to be joint and several in all respects.
Section 8.11 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all of which, when taken together, shall constitute
one and the same instrument and shall become effective when
copies hereof, when taken together, bear the signatures of each
of the parties hereto and it shall not be necessary in making
proof of this instrument to produce or account for more than one
of such fully executed counterparts.
Section 8.12 Merger of Acreage. It is understood and agreed that
the purpose for amending the original Loan Agreement described
herein is to allow the purchase of an adjoining 3+/- acres. The
new acreage will be titled temporarily under the name of PBP,
Inc. At soon as reasonable after completion of revival of
development permits on the original acreage, the said 3+/- acre
parcel will be transferred at cost to First American Development
Group/Carib Limited Partnership subject, as stated herein. to all
other terms of this Loan Agreement and the accompanying Amended
Note, Mortgage, and Limited Guaranty. Upon said transfer to First
American Development Group/Carib Limited Partnership, PBP, Inc.
will be dissolved.
IN WITNESS WHEREOF, this Agreement has been duly executed by
Borrower and Lender as of the day and year first above written.
BORROWER:
[name]
By:
__________________________________
____
[name]
By:
__________________________________
____
LENDER:
IBF SPECIAL PURPOSE CORP. III
By:
__________________________________
____
AMENDED
PROMISSORY NOTE
$1,520,000.00 Washington, D.C.
September 12, 1998
WHEREAS, First [name] acting by and through its [name]. as
Mortgagor and IBF Special Purpose Corp. III as Lender entered
into a certain Promissory Note dated September 12, 1998 in the
original principal amount of $1,240,000.00; and
WHEREAS, the said parties desire to amend said Promissory
Note by increasing the principal amount to $1,520,000 and by
adding [name] a United States Virgin Islands corporation as a
Mortgagor jointly and severally with [name], and for all other
terms to remain as stated herein.
WITNESSETH, FOR VALUE RECEIVED, the undersigned, jointly
and severally, promise to pay to IBF Special Purpose Corp. III
(the "Lender") or ORDER, the principal sum of ONE MILLION FIVE
HUNDRED TWENTY DOLLARS ($1,520,000.00), or so much thereof as may
be advanced by the Lender to the undersigned pursuant to the Loan
Agreement of even date herewith between the Lender and the
undersigned (the "Loan Agreement"), lawful money of the United
States of America, with interest from this date, on the principal
sum advanced and outstanding from time to time, at a rate per
annum equal to twelve percent (12%). The said principal and all
accrued interest shall be payable in full at the office of the
Lender, or at such other place as the holder may, from time to
time, designate in writing TWO (2) YEARS after the date hereof,
(which if not then paid accrues interest at the accrual rate of
the highest annual rate allowed under the law governing the note)
provided that interest only, on the principal sums advanced and
outstanding, shall be due and payable on the first (1st) day of
each month hereafter commencing on October 1, 1998.
AND IT IS HEREBY EXPRESSLY AGREED that the entire principal
sum from time to time outstanding hereunder and all accrued and
unpaid interest thereon shall become due and payable, at the
option of the Lender, (i) after default for ten (10) days in the
payment of any sum due hereunder, or (ii) after default in the
performance of any covenant or agreement contained in the Loan
Agreement, or in the security instruments therein referred to,
which shall not have been remedied within twenty (20) days after
written notice thereof shall have been given by the Lender, or
(iii) upon the undersigned's receipt of construction financing
for its project at Chocolate Hole Bay, St. Xxxx, Virgin Islands
(the "Project").
This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement
of any change, waiver, modification, or discharge is sought.
In case recourse to the courts by the holder of this Note
becomes necessary in order to collect the whole or any unpaid
part thereof together with all accrued interest thereon, the
undersigned agrees to pay any and all court expenses,
disbursements, and reasonable attorney's fees which may be
incurred. The undersigned expressly authorizes and empowers the
Lender, at its option, at any time to appropriate and to apply to
the payment of this Note any and all monies now or hereafter in
the hands of the Bank on deposit or otherwise to the credit of or
belonging to the undersigned, except, however, funds held by the
Lender in trust in connection with the purchase and sale of
condominium units to be built at the Project. Further, Mortgagee
is authorized as Mortgagor's attorney-in-fact to confess judgment
in favor of Mortgagee in any action brought to enforce the terms
hereof.
Presentment, protest, demand, and notice of non-payment are
hereby waived.
This Note is being issued pursuant to the Loan Agreement, and is
secured by the security instruments therein referred to, and
is subject to all of the terms and conditions of the said
Loan Agreement and security instruments as if the same were
herein set forth at length, and any default by the
undersigned under any of the said instruments shall
constitute a default under this Note, except as set forth to
the contrary herein or the said Loan Agreement.
[name]
By: _____________________________ By:
________________________________
President President
Attest: ___________________________ Attest:
______________________________
Secretary Secretary
AMENDED
MORTGAGE
THIS INDENTURE made this 12th day of September, 1998 between
[name], a Virginia limited partnership whose address is 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 and [name], a
United States Virgin Island corporation whose address is No. 41-
42 Kongens Xxxx, St. Xxxxxx, USVI, hereinafter jointly and
severally called the "Mortgagor", and IBF Special Purpose Corp.
111, a Delaware Corporation incorporated under the laws of the
United States of America having an office at 0000 Xxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, Xxxxxxxx of Columbia, hereinafter
called the "Mortgagee".
WHEREAS, [name]acting by and through its general partner,
[name] as Mortgagor and IBF Special Purpose Corp. III as Lender
enter into a certain promissory note and mortgage dated September
12, 1998 in the original principal amount of $1,240,000.00 which
was recorded in the office of the Recorder of Deeds St.
Xxxxxx/St. Xxxx on September 17, 1998-, and
WHEREAS, the said parties desire to amend the said Mortgage
by increasing the principal amount by $280,000.00 to
$1,520,000.00 and by adding [name] a United States Virgin Islands
corporation as a Mortgagor jointly and severally with [name]. and
by making "Premises 11" described below subject to this Amended
Mortgage and for all other terms to remain as stated herein.
THEREFORE
WITNESSETH, that to secure the payment of an indebtedness
in the principal sum of ONE MILLION FIVE HUNDRED TWENTY THOUSAND
DOLLARS ($ 1,520,000.00), or so
much thereof as may be advanced under and pursuant to a Loan
Agreement of even date between the Mortgagor and the Mortgagee
(the "Loan Agreement"), together with interest thereon at a rate
set forth in a certain note (the "Note") bearing even date
herewith made by the Mortgagor to the Mortgagee, lawful money of
the United States to be paid in accordance with the Note, the
Mortgagor. for the better securing of the payment of said sum
with the interest thereon, and also in consideration of ONE
DOLLAR ($1.00) paid by the Mortgagee, receipt whereof is hereby
acknowledged, does grant, release, assign, transfer, set-over,
and mortgage the real properties (hereinafter called the
"Premises") more particularly described as:
PREMISES I
Plot Nos. 126 and 272 (the latter consisting of Xxxx Xxx.
000X, 000, 000X, 000, 000X, 00 0, xxx 00 XX) Estate
Chocolate Hole, No. I I Xxxx Bay Quarter, St. Xxxx, U.S.
Virgin Islands, as shown on P.W.D. No. A9-72-T67 dated
October 26. 1967. Said Premises I is titled in the name of
FIRST AMERICAN DEVELOPMENT GROUP/CARIB LIMITED PARTNERSHIP,
a Virginia limited partnership.
AND
PREMISES II
Parcel Nos. 488D, 488E, and 488F Estate Chocolate Hole
No. 11 Xxxx Bay Quarter,
St. Xxxx, U.S. Virgin Islands
as shown on O.L.G. Drawing No. D9-5072-T91
and consisting of approximately 1.81, 0.518, and 0.5776
acres respectively
TOGETHER with the appurtenances and all the estate and rights of
the Mortgagor in and to the Premises.
TOGETHER also with all of the Mortgagor's right, title, and
interest in and to all buildings and improvements now erected on
the Premises and in and to all buildings and improvements
hereafter constructed or placed thereon, or any part thereof, and
in and to all fixtures, equipment, and articles of personal
property of every kind and nature whatsoever now or hereafter
installed in or upon the Premises, or any part thereof, and used
or procured for use in connection with the operation thereof.
including, but without limiting the generality of the foregoing,
all engines, furnaces, boilers, stokers, pumps, tanks, heaters,
dynamos, generators, switchboards, electric equipment, heating,
plumbing, lifting, and ventilating and incinerating apparatus,
sprinkler and other fire extinguishing and fire prevention
apparatus or systems, air cooling and air conditioning apparatus,
gas and electric fixtures, radiators, and machinery.
TOGETHER with any and all awards heretofore and hereafter made to
the present and all subsequent owners of the Premises, or any
part thereof, by any governmental or other lawful authorities,
for taking by eminent domain the whole or any part of the
Premises, or any improvements thereon, or any easement therein,
including any awards for any changes of grades of streets, which
said awards are hereby assigned to the Mortgagee who is hereby
authorized to collect and receive the proceeds of any such awards
from such authorities, and to give proper receipts and
acquittances therefor and to apply the same toward the payment of
the amount secured by this Mortgage and evidenced by the Note,
notwithstanding the fact that the amount owing thereon may not
then be due and payable-, and the Mortgagor hereby covenants and
agrees, upon request, to make, execute, and deliver any and all
assignments and other instruments sufficient for the purpose of
assigning the aforesaid awards to the Mortgagee, free. clear, and
discharged of any and all encumbrances of any kind or nature
whatsoever.
TOGETHER with all right, title, and interest of the
Mortgagor in and to the land lying in the streets and roads in
front of and adjoining the Premises (all of the foregoing
Premises. appurtenance, buildings, and improvements, personal
property and awards being hereinafter collectively called the
"Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property unto the
Mortgagee, its successors and assigns, forever.
PROVIDED always that if the Mortgagor shall pay or cause to
be paid unto the Mortgagee the said sum of money and the interest
thereon on demand, then these presents and the estate hereby
granted shall cease, determine, and be void.
AND the Mortgagor covenants with the Mortgagee as follows:
1. That the Mortgagor shall pay to the Mortgagee the said
sum of money mentioned in the Note, and the interest
thereon, according to the Note.
2. That the Mortgagor shall at the Mortgagor's sole cost
and expense keep the improvements on the Premises
insured against (i) loss by fire, (ii) loss by
earthquake, lightning, windstorm. hail, explosion,
riot, riot attending a strike, civil commotion,
aircraft, vehicles, smoke and other risks normally
within extended coverage, and (iii) after notice and
demand, such other insurable hazard or hazards and war
risk, if obtainable from any governmental or quasi -
governmental agency or authority, that may be required
by the Mortgagee, in such amounts as may be reasonably
specified by the Mortgagee from time to time, and in
default thereof the Mortgagee may, but shall not be
obligated to, obtain such insurance and pay the
premiums therefor; and the Mortgagor agrees to
reimburse the Mortgagee upon demand for all premiums
thus paid, together with interest. The policies of
insurance provided for hereunder shall contain a loss
payee clause, reasonably satisfactory in form and
substance to the Mortgagee, in favor of the Mortgagee.
Such policies shall, by their terms, be non-cancellable
for any reason until not less than ten (10) days'
written notice is given to the Mortgagee of intention
to cancel.
If the Mortgagee shall receive proceeds of any insurance as
a result of loss or damage by fire or other casualty, such
proceeds may be retained and applied by the Mortgagee towards
payment of the indebtedness secured hereby, notwithstanding the
fact that the amount owing thereon may not then be due and
payable, the balance, if any, to be paid over by the Mortgagee to
the Mortgagor, or the same may be paid over in whole or in part
to the Mortgagor for the repair of said buildings or for the
erection of any buildings in their place, or for any other
purpose or object satisfactory to the Mortgagee and. if the
Mortgagee shall retain and apply said proceeds as aforesaid, the
lien to this Mortgage shall be reduced by the amount of such
proceeds retained and applied as aforesaid.
3. That the Mortgagee shall not voluntarily or
involuntarily assign the rents or any part of the rents
of the Premises, nor shall any building or improvement
now or hereafter situate on the Premises be removed,
demolished, or materially altered without the consent
of the Mortgagee.
4. That the holder of this Mortgage, in any action to
foreclose it, shall be entitled to the appointment of a
receiver, notwithstanding the adequacy of the security
then available to the Mortgagee.
5. That the Mortgagor will pay all taxes, assessments,
water rates, and sewer rents which may become a lien
upon the Mortgaged Property, and in default thereof,
the Mortgagee may pay the same.
6. That the Mortgagor within ten (10) days upon request in
person, or within twenty (20) days upon request by
mail, will furnish a written statement duly
acknowledged of the amount due on the Note and whether
any offsets or defenses exist against the indebtedness
evidenced by the Note.
7. That notice and demand or request may be in writing and
may be served in person or by mail, and said notice and
demand or request shall be deemed fulfilled by
personally serving one or more of the persons who shall
at the time hold the record title to the Premises, or
their successors, or mailed, certified mail, return
receipt requested, by depositing it in any post office
station or letter box. enclosed in a postpaid envelope
addressed to such person or persons, or their
successors, at their address to the Mortgagee last
known.
8. That the Mortgagor warrants that the Mortgagor has good
title to the Premises and has the right to mortgage the
same and shall and will make, execute, acknowledge and
deliver in due form of law, all such further or other
deeds or assurances as may at any time hereafter be
reasonably desired or required for more fully and
effectually conveying the Premises unto the Mortgagee
for the purpose aforesaid and unto all and every person
or persons, corporation or corporations, deriving any
estate, right, title, or interest therein under this
Mortgage, and the Mortgagor will forever warrant and
defend any such estate. right, title, or interest
therein from any claims of the Mortgagor, and all
persons claiming by, through, or under the Mortgagor.
9. That if any action or proceeding be commenced (except
an action to foreclose this Mortgage or to collect the
debt thereby), to which action or proceeding the holder
of this Mortgage is made a party, or in which it
becomes necessary to defend or uphold the lien of this
Mortgage, all sums paid by the Mortgagee for the
expense of any litigation to prosecute or defend the
rights and lien created by this Mortgage (including
reasonable counsel fees) shall be paid by the Mortgagor
together with interest thereon at the Virgin Islands
legal rate, and any such sum and the interest thereon
shall be a lien on the Mortgaged Property, prior to any
right or title, interest in or claim upon the Mortgaged
Property attaching or accruing subsequent to the lien
of this Mortgage, and shall be deemed to be secured by
this Mortgage. In any action or proceeding to foreclose
this Mortgage. or to recover or collect the debt
secured thereby, the provisions of law respecting the
recovery of costs, disbursements, and allowances shall
prevail unaffected by this covenant.
10. That if the Mortgagor shall fail to perform any of its
covenants in this Mortgage contained, the Mortgagee or
any received of the Mortgaged Property may, at any
time, and from time to time, in its or his discretion,
make advances to effect performance of such covenant on
behalf of the Mortgagor; and all monies so advanced by
the Mortgagee or such receiver, together with interest
thereon at the Virgin Islands legal rate shall be
repaid by the Mortgagor upon demand, and any such sum
and the interest thereon shall be a lien on the
Mortgaged Property prior to any right or title to,
interest in, or claim upon the Mortgaged Property
attaching or accruing subsequent to the lien of this
Mortgage. and shall be deemed to be secured by this
Mortgage.
11. That the right of the Mortgagee arising out of the
clauses and covenants contained in this Mortgage shall
be separate and distinct and cumulative, and none of
them shall be in exclusion of the others; that no act
of the Mortgagee shall be construed as an election to
proceed under any one provision herein to the exclusion
of any other provision, anything herein to the contrary
notwithstanding.
12. That the Mortgagee and any authorized representative of
the Mortgagee shall have the right to enter and inspect
the Mortgaged Property and the buildings and
improvements on the premises at all reasonable times.
13. That the Mortgagor shall not, without the prior written
consent of the Mortgagee, sell, convey, or alienate the
Premises, or any part thereof, or any interest therein,
nor suffer the divestment of the Mortgagor's title, or
any interest therein, in any manner, whether
voluntarily or involuntarily, except that the Mortgagor
may, in the normal and ordinary course of business,
enter into purchase and sale agreements with purchasers
of condominium units to be built upon the Premises.
14. That the whole of said principal sum of the Note, and
all interest thereon accrued, shall become due at the
option of the Mortgagee in case any one or more of the
following "Events of Default" shall not have been
remedied, by the commencement, within any applicable
notice or other period provided for hereinafter, and
the diligent prosecution thereafter, of appropriate
action to cure such Event of Default:
(a) after default in the payment of any installment of
principal or of interest or of principal and
interest when due on the Note: or
(b) after default in the payment of tax, water rate,
sewer rent, or assessment for twenty days after
the same becomes due and payable, provided that an
assessment which has been made payable in
installments at the application of the Mortgagor
shall, for the purpose of this subdivision, be
deemed due and payable on the dates respective
installments become due or payable or a lien; or
(c) after default after twenty (20) days' notice and
demand in reimbursing the Mortgagee for taxes,
assessments, water rates, and sewer rents paid by
the Mortgagee; or
(d) after default after twenty (20) days' notice and
demand either in assigning and delivering the
policies of insurance hereinbefore specified or in
reimbursing the Mortgagee for premiums paid on
such insurance; or
(e) after default after twenty (20) days' notice and
demand in furnishing a statement of the amount due
on the Mortgage and whether any offsets or
defenses exist against the mortgage debt; or
(f) after failure to exhibit to the Mortgagee, within
twenty (20) days after demand, receipts showing
payment of all taxes, water rates, sewer rents,
and assessments; or
(g) if the Mortgagor shall voluntarily or
involuntarily assign the rents or any part of the
rents of the Premises; or
(h) after the actual or threatened demolition or
removal of any building or improvement on the
Premises without the written consent of the
Mortgagee; or
(i) if the buildings and improvements on the Premises
are not maintained in reasonably good repair, and
the Mortgagor fails to commence and diligently
prosecute work to remedy such deficiency within
twenty (20) days after notice thereof; or
(j) after failure to comply with any requirements or
order or notice of violation of law or ordinances
issued by any governmental department claiming
jurisdiction over the Mortgaged Property within
three (3) months from the issuance thereof, or if
the same cannot be complied with within three (3)
months, within such reasonable period of time as
may be necessary for compliance; or
(k) if on application of the Mortgagee two or more
fire insurance companies lawfully doing business
in the Virgin Islands refuse to issue policies as
hereinbefore specified; or
(1) in the event of the removal, demolition or
destruction in whole or in part of any of the
fixtures, chattels, or articles of personal
property covered hereby, unless the same are
promptly replaced by similar fixtures, chattels
and articles of personal property at least equal
in quality and condition to those replaced, free
from chattel mortgages or other encumbrances
thereon and free from any reservation of title
thereto; or
(m) if the Mortgagor, without the prior written
consent of the Mortgagee, shall sell, convey, or
alienate the Premises, or any part thereof, or any
interest therein, or shall be divested of its,
his, her, or their title or any interest therein,
in any manner, whether voluntarily or
involuntarily, except that the Mortgagor may, in
the normal and ordinary course of business, enter
into purchase and sale agreements with the
purchasers of condominium units to be built upon
the Premises; or
(n) if the Mortgagor fails to keep, observe, and
perform any of the other covenants, conditions, or
agreements contained in this Mortgage or in the
Note; or
(o) if the Mortgagor fails to keep, observe, and
perform any of the covenants, conditions or
agreements contained in the Loan Agreement or in
that certain Security Agreement made by the
Mortgagor and the Mortgagee bearing even date
herewith.
15. That wherever used in this Mortgage, unless the context
requires a contrary construction or unless otherwise
specifically provided herein, the term "Mortgagor" shall be
construed as meaning the "Mortgagor and/or any subsequent
owner or owners of the Mortgaged Property" and the word
"Mortgagee" shall be construed as meaning "Mortgagee and/or
any subsequent holder or holders of this Mortgage".
16. That this Mortgage may not be changed or terminated orally.
17. That the covenants contained in this Mortgage shall run with
the land and bind the Mortgagor, the heirs, personal
representatives, successors, and assigns of the Mortgagor
and all subsequent owners, encumbrances, tenants, and
subtenants of the Premises, and shall ensure to the benefit
of the Mortgagee, the successors, and assigns of the
Mortgagee, and all subsequent holders of this Mortgage.
18. Mortgagor acknowledges that it shall not be entitled to made
a release of this Mortgage notwithstanding the payment of
the entire outstanding balance of the Note which it secures,
unless it tenders to Mortgagee documents that effectually
assign to Mortgagee or its designee, five percent (5%) of
the net profit realized by Mortgagor from the sale of each
Property as a whole or from each condominium or time-share
unit sale made by Mortgagor. "Net Proceeds" shall mean the
gross selling price less repayment of third-party debt
obligation needed to be released in connection with the sale
of the unit as well as actual third-party expenses which are
necessary to the transaction, such as reasonable closing
costs, and all equity contributions of Mortgagor.
IN WITNESS WHEREOF, the Mortgagor has duly executed this
instrument the day and
year first above written.
WITNESS: [Name]
By:
______________________________________
WITNESS: [Name]
By:
___________________________________
___ President
State of Virginia
County of Xxxxx City, to wit:
The foregoing instrument was acknowledged before me this
29th day of December. 1998. by [Name]
__________________________________________
Notary Public
My Commission expires:
