Prepared By: Jose Vidal Miami-Dade County, PWD
Prepared
By: Xxxx Xxxxx
Miami-Dade
County, PWD
000 XX
0xx
Xxxxxx, Xxxxx 0000
Xxxxx,
Xxxxxxx 00000
Return
To: Xxxx Xxxxx
Miami-Dade
County, PWD
000 XX
0xx
Xxxxxx, Xxxxx, 0000
Xxxxx,
Xxxxxxx 00000
THIS
MORTGAGE AND SECURITY AGREEMENT (the “Mortgage”) is executed as of the ____ day
of ______________, 2009, at Miami-Dade County, Florida by Florida Gaming
Centers, Inc., a Florida Corporation, d/b/a Miami Jai-Alai, Inc., d/b/a W.J.A.
Realty, Inc, and City National Bank of Florida, a Florida banking corporation;
f/k/a City National Bank of Miami, a Florida banking corporation as Trustee
under its Land Trust #5003471, dated January 1, 1979 (hereinafter “Mortgagor”,
which term shall include their successors, heirs, legal representatives and
permitted assigns), whose address is 0000 XX 00xx Xxxxxx, Xxxxx Xxxxxxx 00000,
and Miami-Dade County (hereinafter “Mortgagee”, which term shall include its
successors, legal representatives and assigns), whose address is 000 XX 0
Xxxxxx, Xxxxx, Xxxxxxx 00000.
WITNESSETH:
For
payment of the sum of Ten and 00/100 ($10.00) Dollars and other good and
valuable consideration and to provide additional collateral to secure the
payment of the sums of money due under a certain Promissory Note dated
_________________________ (the “Note”). In the principal sum of Three Million
Thirteen Thousand Five Hundred Eighty Six Dollars and Ten Cents ($3,013,586.10)
due to Mortgagee, together with interest thereon, and all other sums of money
secured hereby as hereinafter provided, Mortgagor does hereby grant, mortgage,
transfer and set over to Mortgagee all of Mortgagor’s right, title and interest
in and to the following (hereafter collectively referred to as the “Mortgaged
Property”):
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(A)
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All
of Mortgagor’s rights and interests in and to the real property located at
and legally described as follows:
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Lots
24 through 36, inclusive, in Block 71, of MELROSE HEIGHTS 5th
SECTION, according to the plat thereof recorded in Plat Book 17 at Page 22
of the Public Records of Miami-Dade County,
Florida.
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And
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The
North half of the right-of-way of NW 35 Street closed by Resolution
1317-77 dated November 17, 1977, recorded in Minutes Book 158 Page 1556 of
the Clerk of the Board of County Commissioners of Miami-Dade County,
Florida, lying in. the Northwest quarter of Section 28 Township 53 South,
Range 41 East in Miami-Dade County,
Florida.
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(B) All
buildings, structures, and improvements of every nature whatsoever now or
hereafter situated on the said Real Property, and all furniture, furnishings,
fixtures, machinery, equipment, inventory, and materials on site, and personal
property of every nature whatsoever now or hereafter owned by the Mortgagor and
located in, on or used or intended to be used in connection with the operation
of said Real Property, buildings, structures, or other improvements, including
all extensions, additions, improvements, betterments, renewals and replacements
to any of the foregoing (the “Improvements”), and all casualty insurance
proceeds, condemnation awards and rents to be derived from the Improvements and
the real property; and all of the rights, title and interest of the Mortgagor in
any such personal property or fixtures subject to a conditional sales contract,
chattel mortgage or similar lien or claim together with the benefit of any
deposits or payments now or hereafter made by the Mortgagor or on its behalf;
and
Together
with all and singular the tenements, hereditaments, easements, licenses and
appurtenances thereunto belonging, or otherwise appertaining including use
rights pertaining to any docks located at the Real Property and the rents,
issues, and profits thereof, and also all the estate, right, title, interest and
all claims and demands whatsoever, as well as in law as in equity, of the
Mortgagor in and to the same and every part and parcel thereof, and also
specifically but not by way of limitation all gas and electric, fixtures,
radiators, heaters, water pumps, air conditioning equipment, machinery, boilers,
ranges, elevators and motors, bath tubs, sinks, water closets, water basins,
pipes, faucets, and other plumbing and heating fixtures, mantels, refrigerating
plants and ice boxes, window screens, screen doors, venetian blinds, cornices,
storm shutters and awnings, which are now or may hereafter pertain to or be used
with, in or on said premises, even though they be detached or detachable, are
and shall be deemed to be fixtures and accessories to the freehold and a part of
the realty; and
(C) All
riparian “rights, purchases, rents, deposits, profits, licenses and permits” any
way relating to the Real Property and the Improvements,
TO HAVE
AND TO HOLD the same, together with the tenements, hereditaments and
appurtenances thereunto belonging, and the rents, issues and profits thereof,
unto the said Mortgagee.
The
conditions of this Mortgagee are that if Mortgagor shall well and truly pay to
Mortgagee the indebtedness evidenced by the Note, together with any future
advance or note hereafter executed by Mortgagor in accordance with Paragraph 13
of this Mortgage and secured by the lien of this Mortgage, together with
interest as therein stated, and shall perform, comply with and abide by each and
every stipulation, agreement, condition and covenant contained and set forth in
this Mortgage, the Note and all other documents executed or delivered in
connection herewith or therewith (the “Loan Documents”), then this Mortgage and
the estate hereby created shall cease and be null and void, otherwise to remain
in full force and effect.
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Mortgagor
hereby warrants to Mortgagee that it is indefeasibly seized with the absolute
and fee simple title to the Mortgaged Property, and that it will defend the same
against the lawful claims and demands of all persons whomsoever.
Mortgagor
and Mortgagee further covenant and agree as follows:
1. Mortgagor
will promptly pay when due the amounts due under the Note and perform, comply
with and abide by each and every stipulation, agreement, condition and covenant
contained in the Note, this Mortgage and the Loan Documents. A late charge equal
to five percent (5%) of the payment then due shall be imposed on any payment due
under any of the Loan Documents not made within ten (10) days of the due date to
compensate Mortgagee for the additional costs, including but not limited to
increased administrative costs, costs for additional bookkeeping entries,
collection activity and other similar items incurred as a result of the late
payment. Mortgagor recognizes that the exact amounts of additional costs which
will be incurred by Mortgagee are difficult to calculate and the late charge
provided for hereunder represents a reasonable estimate of those probable costs.
In no event shall this provision waive Mortgagee’s right to declare a default
and accelerate and demand immediate payment of all of the outstanding principal
balance for any payment not made within ten (10) days of the due date for said
payment.
2. (a) Mortgagor
will pay all governmental taxes, encumbrances and other assessments, levies or
liens now or hereafter levied or imposed upon or against the Mortgaged Property
prior to such taxes, assessments and liens becoming delinquent and will furnish
Mortgagee with paid receipts therefor. If the same or any parts thereof are not
paid prior to becoming delinquent, Mortgagee may, at its option, pay same
without waiving or affecting Mortgagee’s option to foreclose this Mortgage, or
any other right bf Mortgagee hereunder.
(b) If
required by Mortgagee, Mortgagor will pay Mortgagee, on the first day of each
calendar month, a sum equal to one-twelfth (1/12) of the annual amounts
necessary to pay all taxes and assessments against the said Mortgaged Property,
together with the premiums for the Insurance required by this Mortgage and the
Loan Documents, said monthly sum to be estimated by Mortgagee and calculated
based upon an annual amount not less than the amount of taxes assessed against
the Mortgaged Property for the previous year and the amount of insurance
premiums for the required insurance.
(c) After
first giving written notice of its intention to do so to Mortgagee, Mortgagor
may at its expense, contest in good faith any such levy, tax, assessment or
other charge levied or imposed against the Mortgaged Property and, in such
event, may permit the items so contested to remain undischarged and unsatisfied
during the period of such contest and any appeal therewith unless Mortgagee
shall notify Mortgagor in writing that non-payment of any such items will cause
the lien or priority of this Mortgage to be materially endangered or the
Mortgaged Property or any part thereof will be subject to loss or forfeiture, in
which event Mortgagor shall promptly pay or bond and cause to be satisfied or
discharged all such unpaid items or furnish, at Mortgagor’s expense, indemnity
satisfactory to Mortgagee.
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3. In
the event Mortgagor fails to timely pay principal or interest in the manner
provided for in the Note an or before the date when due, or fails to fully and
promptly perform any other obligation under this Mortgage, the Note or the Loan
Documents, or to otherwise execute, comply with and abide by each and every one
of the covenants, conditions or stipulations of this Mortgage, the Note or the
Loan Documents, Mortgagor shall, after applicable grace or notice periods, if
any, be deemed to be in default and all of the outstanding principal and
interest due under the Note and any and all sums mentioned herein or secured
herby shall, at Mortgagee’s option, become immediately due and
payable.
4. In
the event of a suit being instituted to foreclose this Mortgage, Mortgagee shall
be entitled to apply at any time after the commencement of such suit to the
court having jurisdiction thereof for the appointment of a receiver of all the
Mortgaged Property and of all rents, income, profits, issues and revenues
thereof, from whatsoever source derive. Mortgagor agrees that the court shall
forthwith appoint such receiver with the usual powers and duties of receivers in
like cases and that said appointment shall be made by the court as a matter of
strict right of the Mortgagee, without reference to the adequacy of the value of
the Mortgaged Property, or the solvency of Mortgagor or any other party
defendant to such suit. Mortgagor hereby waives the right to object to the
appointment of a receiver and consents that such appointment shall be made as an
admitted equity of the Mortgagee.
5. Mortgagor
will, at its expense, obtain and maintain the following insurance coverage
during such time as there are any sums due by Mortgagor to Mortgagee under the
Loan Documents:
(a) Broad
form public liability Insurance for loss of life personal injury arising out of
any one occurrence, and for loss of life or personal injury to any one person
and for Property damage, in amounts reasonably satisfactory to Mortgagee;
and
(b) An
all risks form of casualty Insurance Insuring the Improvements against loss or
damage by fire, storm, and all other perils for no less than their full
replacement cost; and
(c) In
the event the Real Property is designated as being in a Flood Zone, then flood
Insurance covering the Improvements for an amount equal to the lesser of (i) the
outstanding principal balance under the Note, or (ii) the maximum coverage
available for the Improvements under the National Flood Insurance
Program.
All such
policies shall specifically name Mortgagee as an additional shall be with such
companies, on such forms and with such deductibles as Mortgagee may require and
shall each contain an endorsement by the Insurer agreeing to not cancel or
materially alter any such policy without thirty (30) days prior written notice
to Mortgagee. Copies of the initial and renewal policies and original
certificates shall be furnished to Mortgagee and such policies shall have
affixed thereto a Standard New York Mortgagee Clause making all proceeds under
such policies payable to the Mortgagor and Mortgagee, as their interests may
appear, in the event the Improvements are destroyed or damaged by fire or other
casualty. Any Insurance proceeds shall be paid to the Mortgagee. Mortgagee shall
have the option to apply the same on account of the indebtedness secured hereby
or to permit the Mortgagor to use all or any portion thereof, for the
purpose of reconstructing and repairing the Improvements, without thereby
waiving or impairing any equity, Lien or right under or by virtue of this
Mortgage. If Mortgagor fails to furnish the Insurance required hereunder,
Mortgagee may place and pay for such insurance, or any part thereof, without
losing, waiving or affecting Mortgagee’s option to foreclose for breach of this
covenant or any right or option under this Mortgage.
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6. Mortgagor
will not permit or commit any waste to the Mortgaged Property and will at all
times maintain the Mortgaged Property in a state of good repair and condition
and will not do or permit anything to be done to the Mortgaged Property that
will alter or change the use and character of said property or
impair or weaken the security of this Mortgage. In case of the
refusal, neglect or inability of the Mortgagor to repair and maintain the
Mortgaged Property, Mortgagee may, at its option, make such repairs or cause the
same to be, made and advance funds for such purpose, which sums shall be secured
by the lien hereof.
7. No
waiver of any covenant contained in the Note, this Mortgage, the Loan Documents
or in any other instrument securing payment of the Note shall at any time be
held to be a waiver of any of the other terms of this Mortgage, the Note or the
Loan Documents or a future waiver of the same covenant.
8. In
order to accelerate the maturity of the indebtedness secured hereby because of
Mortgagor’s failure to pay any governmental tax, assessment, liability,
obligation or encumbrance upon the Mortgaged Property, or any other payment
required to be paid by the Mortgagor pursuant to this Mortgage or the Loan
Documents, it shall not be necessary or required that Mortgagee first pay
same.
9. Mortgagor
shall not further mortgage or encumber all or any portion of the Mortgaged
Property or sell, convey or assign same or any part thereof without Mortgagee’s
prior written consent, which consent may within Mortgagee’s sole discretion be
withheld. Without in any way limiting the generality of this paragraph, any
transaction (i) conveying any interest in the Mortgaged Property pursuant to
“agreement for deed; (ii) resulting in a lease of the Mortgaged Property; (iii)
resulting in a transfer of any of the corporate stock of a corporate, Mortgagor;
shall constitute a conveyance pursuant to this paragraph and give rise to all
rights of the Mortgagee contained in this paragraph.
10. If
any judgment, mechanic’s, materialman’s, laborer’s or any other lien or claim is
filed against all or any portion of the Mortgaged Property or if any proceedings
are instituted against all or any portion of the Mortgaged Property upon any
lien or claim of any nature whatsoever, regardless of whether such lien or claim
is Junior or superior to the lien of this Mortgage, Mortgagee may declare a
default and accelerate and demand immediate payment of all sums due under the
Note unless Mortgagor shall remove such lien or satisfy such judgment or claim
by payment or by transferring same to a bond issued by a surety company
acceptable to Mortgagee within thirty (30) days after Mortgagor has knowledge of
the filing of such lien or judgment or the institution of such
claim.
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11. In
the event Mortgagor shall (i) consent to the appointment of a receiver, trustee
or liquidator of all or a substantial part of their assets or (ii) file a
voluntary petition in bankruptcy, or admit in writing their inability to pay
their debts as they become due, or (iii) make a general assignment for the
benefit of Creditors, or (iv) file a petition or answer seeking reorganization
or arrangement with creditors, or to take advantage of any Insolvency law, or
(v) file an answer admitting the material allegations of a petition filed
against any of them in any bankruptcy. reorganization or insolvency proceeding,
or (vi) action shall be taken by any of them for the purpose of effecting any of
the foregoing, or (vii) any order, judgment or decree is entered upon the
application of a creditor of any of them by a court of competent jurisdiction
approving a petition seeking appointment of a receiver or trustee of all or a
substantial part of the assets of any of them, or declaring anyone of them
bankrupt or insolvent and such action by a creditor is not dismissed or
discharged within forty five (45) days of the filing of the action, then upon
the occurrence of any of such events, Mortgagee may accelerate and declare the
Note secured hereby immediately due and payable, whereupon all the unpaid
principal of and accrued Interest on the Note and all other sums hereby secured
shall become immediately due and payable.
12. Mortgagee
or any of its agents shall have the right to enter upon and inspect the
Mortgaged Property at all reasonable times, upon reasonable notice.
13. Any
sum or sums which may be loaned or advanced by Mortgagee to Mortgagor, in its
sole discretion, at any time within ten (10) years from the date of this
Mortgage, together with interest thereon at the rate agreed upon at the time of
such loan or advance, shall be equally secured with and have the same priority
as to original indebtedness and be subject to all the terms and provisions of
this Mortgage. The aggregate amount of principal outstanding at any time and
secured by this Mortgage shall not exceed one hundred percent (100%) of the
original principal amount of the Note secured hereby.
14. Upon
Mortgagee’s request, Mortgagor will furnish a written statement of the amount
owing on the obligation which this Mortgage secures and therein state whether or
not it claims any defaults, defenses or offsets thereto. If Mortgagee deems
itself to reasonably be insecure concerning repayment of the Note, within thirty
(30) days following any request for same by Mortgagee, during the term of the
Note, Mortgagor agrees to furnish Mortgagee current financial statements and tax
returns for all borrowers under the Note and all guarantors of the debt secured
hereby.
15. Nothing
herein contained, nor any instrument or transaction related hereto, shall be
construed or so operate as to require the Mortgagor, or any person liable for
the payment of the loan made pursuant to the Note and Loan Documents secured by
this Mortgage, to pay interest in an amount or at a rate greater than the
maximum allowed by law. Should any interest or other charges paid by the
Mortgagor, or any parties liable for the payment of the Note secured by this
Mortgage, result in the computation or claiming of interest in excess of the
maximum rate of interest which is permitted under law, then any and all such
excess shall be and the same is hereby waived by the Mortgagee, and all such
excess shall be automatically credited against and in reduction of the principal
balance and any portion of said excess which exceeds the principal balance shall
be paid by the Mortgagee to the Mortgagor and any parties liable for the payment
of the Note secured by this Mortgage, it being the intent of the parties hereto
that under no circumstances shall the Mortgagor, or any parties liable for the
payment of the Note secured hereby be required to pay interest in excess of the
maximum rate allowed by law.
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16. If
all or any material portion of the Mortgaged Property is damaged or taken
through the exercise of the power of eminent domain (which term when used in
this Mortgage shall include any transfer by private sale in lieu thereof), the
entire indebtedness secured hereby shall become immediately due and payable and
the entire proceeds of Mortgagor’s award shall be paid to Mortgagee and applied
by it towards the payment of the saris secured hereby with the remaining
balance, if any, to be paid over to Mortgagor. Mortgagee is hereby authorized,
at its option, to commence, appear and prosecute, in its own or the Mortgagor’s
name, any action or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds, and the right thereto are hereby
assigned by the Mortgagor to the Mortgagee, and Mortgagor agrees to execute such
further assignments of any compensation, awards, damages, claims, rights of
action and proceeds as Mortgagee may require.
17. This
Mortgage shall also be construed and shall operate as a security agreement under
the State of Florida Uniform Commercial Code.
18. To
further secure payment of Mortgagor’s indebtedness to Mortgagee, Mortgagor does
hereby sell, assign, transfer and set over to Mortgagee all of the rents, issues
and profits of the Mortgaged Property. Although this is a presently effective
assignment, it shall become operative only upon any uncured noncompliance or a
material breach by Mortgagor under the terms of this Mortgage, the Note or the
Loan Documents, and the Mortgagee shall thereafter have the right to enter upon
the Mortgaged Property and collect the same directly from the persons in
possession.
19. Time
is of the essence to this Mortgage and all the provisions hereof.
20. In
the event any legal action is commenced to enforce the provisions of this
Mortgage or as a result of the relationship created hereby, the Mortgagee shall
be entitled to recover all reasonable attorneys’ fees, costs, charges and
expenses incurred or paid by it at both trial and all appellate
levels.
21. All
rights and remedies granted to Mortgagee herein shall be in addition to and not
In lieu of any rights and remedies provided to mortgagees by law or statute, and
the invalidity of any right or remedy herein provided by reason of its conflicts
with applicable law or statute shall not affect any other valid right or remedy
afforded to Mortgagee by any provision hereof or by applicable law.
22. To
the extent of the Indebtedness of the Mortgagor to the Mortgagee as described
herein and secured hereby, the Mortgagee is subrogated to the lien or liens and
to the rights of the owners and holders of each and every mortgage, lien or
other encumbrance on the Mortgaged Property or any part thereof which is paid or
satisfied, in whole or in part, out of the proceeds of the Note. The respective
liens of said mortgages, liens or other encumbrances shall be preserved and
shall pass to and be held by the Mortgagee as security for the indebtedness
described herein or secured hereby, to the same extent that it would have been
preserved and would have been passed to and held by the Mortgagee had it been
duly and regularly assigned to the Mortgagee by separate assignment,
notwithstanding the fact that the same may be satisfied and canceled of record,
it being the intention of the parties that the same will be satisfied and
cancelled of record by the holder thereof at or about the time of the retarding
of this Mortgage.
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23. Mortgagor
warrants and represents that it has no knowledge of any violation of any type or
manner of any law, ordinance, orders, requirements or regulations imposed on or
affecting the Mortgaged Property, that Mortgagor shall not permit any such
violation to be created or to exist and that Mortgagor has not received notice
of any such violation from any municipal, county, federal or state government or
agency thereof In the event that Mortgagor receives any notice of any such
violation from any governmental body or agency thereof, Mortgagor agrees to
immediately give notice thereof to Mortgagee, and to take all necessary Or
appropriate actions to cure or otherwise resolve such violation within thirty
(30) days after receipt by Mortgagee of the notice of violation, or, in the
event it cannot be cured in thirty (30) days, then to diligently and
continuously undertake and complete the cure within a reasonable time of notice
of this violation. In the event any such violation is not cured or otherwise
resolved within said thirty (30) day period or such longer period as may be
reasonably necessary, the Mortgagee may declare the Note hereby secured
forthwith due and payable, whereupon the principal of and the interest accrued
on the Note and all other sums hereby secured shall become forthwith due and
payable.
24. Mortgagor
may be required to deliver to Mortgagee the abstracts and title covering the
Mortgaged Property, which shall at all times during the life of this Mortgage
remain in the possession of the Mortgagee. In the event of the foreclosure of
this Mortgage or other transfers of title, all right, title and interest of the
Mortgagor to any such abstract of title shall pass to the purchaser or
grantee.
25. In
case of any material damage to or destruction of all or any part of the
Mortgaged Property, Mortgagor shall give prompt notice thereof to Mortgagee. In
case of a taking or proposed taking of all or any part of the Mortgaged Property
or any right therein by eminent domain, the party upon which notice of such
taking is served shall give prompt notice to the other, Each such notice shall
generally describe the nature and extent of such damage, destruction, taking,
loss, proceedings or negotiations.
26. (a) This
Mortgage further secures all costs, fees, changes and expenses of every kind,
including the cost of an abstract of title to the Real Property, in connection
with any suit for the foreclosure of this Mortgage, and reasonable attorneys’
fees incurred or expended at any time by the Mortgagee because of the, failure
of Mortgagor to perform, comply with and abide by the covenants, conditions and
stipulations of the Note, this Mortgage or the Loan Documents.
(b) If
Mortgagor fails to comply with any provision of this Mortgage, the Note or the
Loan Documents and Mortgagee expends any money in obtaining the performance or
satisfaction of such requirement, then all sums shall bear interest from the
date of disbursement by Mortgagee at the highest rate permitted by law and, if
no such rate is specified, then at the rate of eighteen percent (18%) per annum.
This rate shall apply before and after the issuance of any final agreement for
amounts owed under the Note. This rate shall apply before and after any judgment
is obtained for amounts owed under the Note.
27. This
Mortgage shall be governed and construed under the laws of the State of
Florida.
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28. Mortgagor
agrees:
(a) To
comply with all the terms, covenants, agreements and conditions of any mortgage
encumbering the property herein described, whether superior or junior to the
lien of this Mortgage.
(b) That
any default, breach or violation of any term, covenant, agreement or condition
of any such mortgage, whether superior or junior to the lien of this Mortgage,
shall, subject to applicable notice and grace periods, if any, be a default
hereunder and shall vest in Mortgagee all and every one of the remedies herein
provided for in case of default.
(c) That
failure by the Mortgagor to pay the monies referred to in any such mortgage,
whether superior or junior to the lien of this Mortgage, within thirty (30) days
after the same severally becomes due and payable, shall also constitute a
default under this Mortgage. This rate skull apply before and after any judgment
is entered for any sums due under the Note.
(d) That
if any proceedings should be instituted against the property covered by this
Mortgage upon any other lien or claim whether superior or junior to the lien of
this Mortgage, the Mortgagee way at its option immediately upon institution of
such suit or during the pendency thereof declare this Mortgage and the
indebtedness secured hereby due and payable forthwith and may at its option
proceed to foreclose this Mortgage.
(e) That
Mortgagee shall have the right, at its option, to cure any default under any
such mortgage whether superior or junior to the lien of this
Mortgage.
(f) That
any sums advanced by Mortgagee in curing said defaults shall be included as part
of the debt of the Mortgagor and shall be secured by this Mortgage and shall
become immediately due and payable upon advancement.
(g) The
Mortgagor covenants and agrees not to enter into any agreement with the holder
of any such mortgage, whether junior or senior to the lien of this Mortgage,
modifying or amending any of the provisions dealing with payment of principal or
interest under any such mortgage without the prior written consent of the
Mortgagee.
(h) The
Mortgagor covenants and agrees that no further advances shall be made under the
provisions for future advances, if any, under any such mortgage, or, in the
alternative, Mortgagors covenant and agree that any advances made to them under
any such mortgage shall be applied to reduce the balance under this
Mortgage.
29. Mortgagor
further warrants to Mortgagee that, to the best of its knowledge and except as
otherwise disclosed to Lender in any Phase I or Phase Il environmental reports
that were provided to Lender, the Mortgaged Property has not in the past and is
not presently being used for the handling, storage, transportation, or disposal
of hazardous or toxic materials, and no notice or advice has been received by
Mortgagor of any condition or state of facts that would contribute to a claim of
pollution or any other damage to the environment by reason of the conduct of any
business on the Mortgaged Property or operation of the Mortgaged Property,
whether past or present. The Mortgagor acknowledges that the Mortgagee has
relied upon the Mortgagor’s representations and the information contained in
such Phase I and Phase II environmental reports, has made no independent
investigation of the truth thereof, is not charged with any knowledge contrary
thereto that may be received by an examination of the public records in
Tallahassee, Florida and the county where the Real Property is located, or that
may have been resolved by any officer, director, agent, employee or shareholder
of Mortgagee.
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30. Mortgagor
hereby agrees that in consideration of the recitals and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, in the event Mortgagor shall (1)
file with any bankruptcy court of competent jurisdiction or be the subject of
any petition under Title 11 of the U.S. Code, as amended (ii) be the subject of
any order for relief issued under such Title 11 of the U.S. Code, as amended,
(iii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, Insolvency, or other relief for debtors, (iv) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, (v) be the subject of any order, judgment, or decree
entered by any court of competent jurisdiction approving a petition flied
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
for debtors, Mortgagee shall thereupon be, entitled to relief from any automatic
stay imposed by Section 362 of Title 11 of the U.S. Code, as amended, and is
entitled to the exercise of the rights and remedies otherwise available to
Mortgagee as provided in the Loan Documents, and as otherwise provided by law,
Mortgagor shall have sixty (60) days to discharge any of the above proceedings
which are initiated by third parties, prior to Mortgagee exercising its rights
and remedies upon default by the Mortgagor, to allow Mortgagor an opportunity to
terminate such proceedings and to meet all of the obligations that Mortgagor has
to the Mortgagee.
31. BY
EXECUTING THIS MORTGAGE, MORTGAGOR KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ITS RIGHTS AND THE RIGHTS OF ITS HEIRS, ASSIGNS, SUCCESSORS OR PERSONAL
REPRESENTATIVES TO A TRIAL BY JURY, IF ANY, IN ANY ACTION, PROCEEDING OR SUIT,
WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF
COMPLAINT, ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE,
BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS MORTGAGE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO 13E EXECUTED IN CONNECTION HEREWITH
OR WITH THE INDEBTEDNESS OR XXX RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE
FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE EXTENDING CREDIT TO MORTGAGOR AND NO WAIVER OR
LIMITATION OF MORTGAGEE’S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING
AND MANUALLY SIGNED ON MORTGAGEE’S BEHALF.
32. ALL
DOCUMENTARY STAMP TAXES AND INTANGIBLE TAXES DUE AND PAYABLE IN CONNECTION WITH
THE EXECUTION AND DELIVERY OF THIS MORTGAGE HAVE BEEN PAID SIMULTANEOUSLY WITH
THE RECORDING OF THE MORTGAGE BASED ON THE PRINCIPAL BALANCE OF THE OBLIGATIONS
AS ESTABLISHED BY TERM NOTE (i.e. $3,013,586.10). In any event, however,
Mortgagor acknowledges and agrees, upon Mortgagee’s request, to pay all taxes,
including without limitation, additional documentary stamps and intangible
taxes, which are deemed to be due and payable in connection with this Mortgage,
if any.
10
|
Signed,
sealed and delivered
|
|||
|
in
the presence of:
|
|||
|
Florida
Gaming Centers, Inc., a Florida
|
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|
Corporation,
d/b/a Miami Jai-Alai, Inc.,
|
|||
|
d/b/a
W.J.A. Realty, Inc.
|
|||
|
Print
Name:
|
Print
Name:
|
||
|
Title:
|
|||
|
Print
Name:
|
|||
|
STATE
OF FLORIDA
|
)
|
|
)
SS
|
|
|
COUNTY
OF MIAMI-DADE
|
)
|
BEFORE
ME, the undersigned authority, appeared ____________________ as President of
________________________________________, who is personally known to me or who
has produced ________________________________________ as identification, and
acknowledged that he/she/they executed the foregoing instrument for the purposes
expressed therein and with hill corporate authority.
WITNESS
my hand and seal in the State and County aforesaid, this ________ day of
____________________, 2009.
|
NOTARY
PUBLIC State of Florida
|
|
Print Name:
|
|
My
Commission Expires:
|
|
|
and
|
11
|
City
National Bank of Florida, a Florida
banking
corporation; f/k/a City National
Bank
of Miami, a Florida banking
corporation
as Trustee xxxxxx its Land Trust
#5003471,
dated January 1, 1979
|
|||
|
Print
Name:
|
Print
Name:
|
||
|
Title:
|
|||
|
Print
Name:
|
|||
|
STATE
OF FLORIDA
|
)
|
|
)
SS
|
|
|
COUNTY
OF MIAMI-DADE
|
)
|
BEFORE
ME, the undersigned authority, appeared ____________________________ as
____________________________ of ___________________________________, who is
personally known to me or who has produced
________________________________________ as identification, and acknowledged
that he/she/they executed the foregoing instrument for the purposes expressed
therein and with hill corporate authority.
WITNESS
my hand and seal in the State and County aforesaid, this ________ day of
____________________, 2009.
|
NOTARY
PUBLIC State of Florida
|
|
Print Name:
|
|
My
Commission Expires:
|
12
