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EXHIBIT 10.6
MORTGAGE AND SECURITY AGREEMENT
(Revolving Loan)
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), dated as of July
_____, 1993, is executed and delivered by ORIOLE HOMES CORP., a Florida
corporation, (the "Mortgagor" or "Borrower") having its principal place of
business at Suite 200, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx
00000-0000, to OHIO SAVINGS BANK, an Ohio corporation (the "Mortgagee"), having
its principal place of business at l80l Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00xx0, under the circumstances summarized in the following recitals:
A. In consideration for a revolving line of credit in the maximum amount
of Ten Million Dollars ($10,000,000.00)(the "Loan") made by Mortgagee to
Borrower, Borrower has executed and delivered to Mortgagee a certain Revolving
Mortgage Note of even date herewith in the maximum principal amount of the Loan
as aforesaid, payable in full as to principal and accrued interest on June 30,
1996 (the "Note");
B. This Mortgage secures the payment of the unpaid principal balance of
the Note, together with interest as therein provided and any other obligations
of the Borrower pursuant to said Note, this Mortgage, the Revolving Loan
Agreement of even date herewith between Borrower and Mortgagee (the "Agreement")
and any other documents or instruments evidencing or securing the Loan or
otherwise executed in connection with the Loan and any partial or total
extensions, renewals, modifications, amendments, restatements or substitutions
thereof or therefor (collectively referred to herein as the "Loan Documents");
C. It is intended that this Mortgage may secure unpaid balances of
advances made after this Mortgage is delivered to the Clerk of the Circuit Court
of Palm Beach County, Florida.
This Instrument Prepared By:
Xxxx X. Xxxxxxxx, Esq.
Ohio Savings Plaza
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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NOW, THEREFORE, in consideration of the Loan made by Mortgagee to
Borrower, as evidenced by the Note, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and for the purpose of
securing: (i) all payments to be made by the Borrower pursuant to the Note, the
Mortgage and/or any other Loan Document, (ii) any future or additional advances
made at the option of Mortgagee as contemplated herein, (iii) any amounts
advanced or costs incurred by the Mortgagee for the protection of the Mortgaged
Property (as hereinafter defined) or the enforcement of this Mortgage, the Note,
the Agreement and/or any other Loan Document, (iv) any other cost or expense
which, by the terms of this Mortgage, the Note, the Agreement and/or any other
Loan Document, may be the subject of reimbursement to Mortgagee by Mortgagor,
and (v) the performance and observance of each covenant and agreement of the
Borrower contained in this Mortgage, the Note, the Agreement and/or any other
Loan Document, the Mortgagor does hereby grant, bargain, sell, convey, mortgage,
assign, grant a security interest in and transfer unto the Mortgagee, its
successors and assigns, the following property whether now owned or hereafter
acquired (the "Mortgaged Property"):
(a) The land described in Exhibit A attached hereto (the "Land"),
together with all buildings, structures, additions, improvements,
facilities and fixtures and other property, now or hereafter
located in, upon or under or based at, such land (the "Premises");
(b) All easements, rights of way or use, licenses, privileges,
franchises, servitudes, tenements, hereditaments and appurtenances
now or hereafter belonging or in anyway appertaining thereto,
including, without limitation, all right, title and interest of
the Mortgagor in any street, alley, sidewalk, open or proposed,
and in front of, adjoining or adjacent or contiguous thereto, and
all rights and estates in reversion or remainder;
(c) All leases, rentals, revenues, payments, repayments, income,
charges, moneys, issues and profits thereof;
(d) The proceeds from any insurance or condemnation award pertaining
thereto, or compensation in lieu thereof, including but not
limited to any award or compensation for the alteration of the
grade of any street or any other injury to or decrease in the
value of the Mortgaged Property;
(e) All of Mortgagor's right, title, interest, estate, claim or
demand, either at law or in equity, in and to all architectural,
engineering and similar plans, specifications, drawings,
renderings, profiles, studies, shop drawings, reports, plats,
permits, surveys and the like, and all sewer taps, permits and
allocations, agreements for utilities, bonds, sureties and the
like, relating to the Premises or appurtenant facilities erected
or to be erected upon or about the Land;
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(f) All proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including,
without limitation, the proceeds of insurance;
(g) All contracts and other agreements for the sale of any of the
Mortgaged Property or any part thereof or interest therein now or
hereafter entered into by Mortgagor, and all right, title and
interest of Mortgagor thereunder, including, without limitation,
all right, title and interest of Mortgagor in cash or securities
deposited thereunder to secure performance by the contract
purchasers of their obligations thereunder, and including, without
limitation, the right to receive and collect the proceeds thereof;
provided that, so long as no Event of Default has occurred
hereunder, the Mortgagor shall have the right to receive, retain
and use any and all amounts paid pursuant to any such agreements,
including without limitation security or other deposits, upon, but
not prior to, accrual, and to retain possession of any and all
such contracts and agreements;
(h) All of Mortgagor's rights, powers and privileges (but not the
burdens and obligations) under any construction contract or
architect's (or engineer's) agreement now or hereafter entered
into by Mortgagor relating to the Mortgaged Property, and all
bonds and surety agreements related thereto, provided that
Mortgagor shall be entitled to exercise any and all rights
pursuant thereto and to receive any and all amounts payable
pursuant to any of the foregoing at, but not prior to, accrual, so
long as no Event of Default has occurred;
(i) All contracts and other agreements, if any, relating to the sale,
lease, brokerage, development, management, maintenance and/or
operation of the Mortgaged Property (or of any part thereof or
interest therein) or otherwise pertaining thereto, provided that,
so long as no Event of Default has occurred hereunder, the
Mortgagor shall have the right to receive, retain and use any and
all amounts paid pursuant to any such agreements, including
without limitation security or other deposits, upon, but not prior
to, accrual, and to retain possession of any and all such
contracts and agreements;
(j) All rights of Mortgagor under any commitment for any other loan
secured by the Mortgaged Property or any part thereof or interest
of Mortgagor therein;
(k) All right, title and interest of Mortgagor in all tradenames,
trademarks and/or servicemarks hereinafter used in connection with
the Mortgaged Property (including without limitation subdivision
or community names, but not including the name of the Borrower or
any of its Affiliates or the word "Oriole") and all contract
rights and contracts, franchise agreements, general intangibles,
actions and rights of action, deposits, prepaid expenses, permits,
licenses owned by Mortgagor and used in connection with or related
to the Mortgaged Property;
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(l) All machinery, apparatus, equipment, fittings, fixtures,
inventory, appliances, furniture and articles of personal property
of every kind and nature whatsoever, other than consumable goods,
now or hereafter located in or upon said Premises or any part
thereof owned by Mortgagor and used or useable in connection with
any present or future operation of said Premises (herein
collectively called "Equipment"), including, but without limiting
the generality of the foregoing, all heating, lighting, laundry,
incinerating, plumbing, lifting, cleaning, fire-prevention,
fire-extinguishing, refrigerating, ventilating, communications,
air-conditioning and air-cooling equipment or apparatus, engines,
pipes, pumps, tanks, motors, conduits, switchboards, elevators,
escalators, shades, awnings, screens, storm doors and windows,
stoves, wall beds, refrigerators, attached cabinets, partitions,
ducts and compressors, and all of the right, title and interest of
the Mortgagor in and to any Equipment which may be subject to any
conditional xxxx of sale, chattel mortgage or security interest
superior to the lien or security interest established by this
Mortgage; and
(m) All proceeds, additions, replacements and substitutions of and to
any of the foregoing.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its
successors and assigns, forever;
AND, IT IS HEREBY COVENANTED that this Mortgage is given and the Mortgaged
Property is to be held upon and subject to the terms, provisions and conditions
herein set forth.
Section 1. Representations and Warranties. The Mortgagor represents and
warrants that:
(i) The Mortgagor is lawfully seized with good and marketable title in fee
simple absolute to the Mortgaged Property free and clear of all liens and
encumbrances whatsoever, except taxes and assessments (other than respread
assessments) general and special not delinquent, zoning ordinances and except
for those matters set forth in Exhibit B attached hereto (hereinafter "Permitted
Prior Encumbrances"), and has good and marketable title to all personal property
included in the Mortgaged Property, subject only to the Permitted Prior
Encumbrances; (ii) it has full right, power and authority to bargain, sell,
mortgage and convey the Mortgaged Property as herein provided; and (iii) except
as expressly provided above, it will warrant and defend to the Mortgagee such
title to the Mortgaged Property and the lien and interest of the Mortgagee
therein and thereon against all claims and demands whatsoever and will maintain
the priority of the lien of, and the security interest granted by, this Mortgage
upon the Mortgaged Property until the Mortgagor shall be entitled to defeasance
as provided herein.
Section 2. After-Acquired Property. All property of every kind acquired by
the Mortgagor after the date hereof and located at, on or under the Premises,
shall, without further mortgage, conveyance or assignment, become subject to the
lien of this Mortgage as fully as though now
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owned by the Mortgagor and specifically described herein. Nevertheless, the
Mortgagor shall take such actions and execute and deliver such additional
instruments as the Mortgagee shall reasonably require to further evidence or
confirm the subjection to the lien of this Mortgage of any such property.
Section 3. Payment of Indebtedness. Mortgagor will pay the indebtedness
secured hereby in the manner and at the times provided herein and/or in the Note
or any other Loan Document, and, until the indebtedness secured hereby is fully
paid, will comply with all the covenants, terms and provisions contained herein,
in the Agreement and in any other Loan Documents.
Section 4. Loan Advances. Advances made under the Note shall be in the
form of a continual revolving credit whereby advances may be made, repaid and
readvanced from time to time. The Mortgagee shall maintain an account on its
books (the "Loan Account"), which shall evidence at all times the amount from
time to time outstanding under the Note. This Mortgage secures the unpaid
balances of any advances or readvances made under the Note, this Mortgage, the
Agreement or any other Loan Document after this Mortgage has been delivered to
the appropriate County Officer for recordation. It is also expressly provided
for and agreed that this Mortgage secures said future advances and readvances,
whether such advances and readvances are obligatory or to be made at the option
of Mortgagee or otherwise, to the same extent as if such future advances and
readvances were made on the date of the execution of this Mortgage although
there may be no advance made at the time of execution of this Mortgage or no
indebtedness outstanding at the time any advance or readvance is made. The total
amount of indebtedness that may be secured by this Mortgage may decrease or
increase from time to time; provided, however, that the total unpaid balance
secured at any time shall not exceed Twenty Million Dollars ($20,000,000.00)
plus interest thereon, and advances made by Mortgagee pursuant to this Mortgage,
including without limitation, for the payment of taxes, assessments, insurance
premiums, costs for the protection of the Mortgaged Property, reasonable
attorneys' fees (at all tribunal levels) and court costs incurred in the
collection of any or all of such sums of money and interest thereon. It shall be
an Event of Default hereunder if Mortgagor shall file a notice pursuant to
Section 697.04(1)(b), Florida Statutes, limiting the amount of indebtedness that
may be secured by this Mortgage. All future advances and readvances shall be
made within twenty (20) years from the date hereof or such longer period of time
as may be authorized by Florida law, and all indebtedness created by such future
advances and readvances shall be secured hereby. All provisions of this Mortgage
shall apply to any future advances or readvances made pursuant to the provisions
of this Section. Nothing herein contained shall limit the amount secured by this
Mortgage if such amount is increased by advances made by Mortgagee as herein
elsewhere provided.
Section 5. Continuing Lien. Mortgagor expressly agrees that any and all of
the Mortgaged Property, howsoever and whensoever acquired, received or arising,
shall secure any and all obligations, howsoever and whensoever incurred, without
apportionment between obligations of the Borrower to Mortgagee under or with
respect to any of the Loan Documents. Accordingly, all
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of the Mortgaged Property is mortgaged, assigned and conveyed, and a security
interest in favor of Mortgagee is granted therein, to secure (a) the entire
indebtedness which may be owed to the Mortgagee from time to time pursuant to
the Note, the Agreement or any other Loan Document, and (b) all other
obligations of the Borrower under or with respect to any of the Loan Documents,
and in no manner shall the rights of the Mortgagee in all or any portion of the
Mortgaged Property be limited by virtue of the fact that any portion of the
Mortgaged Property may have been (1) mortgaged, assigned and conveyed to
Mortgagee, or a security interest in favor of Mortgagee granted therein, or (2)
placed in the possession or control of the Mortgagee ancillary to the making of
a particular advance hereunder or the incurrence of any other obligation, and
Mortgagee shall have the right, in its sole and absolute discretion, to
determine the order in which its rights in or remedies against any Mortgaged
Property are to be exercised, which type(s) or portion(s) of Mortgaged Property
are to be proceeded against, and the order of application of proceeds of
Mortgaged Property as against any particular obligations.
Upon the sale, exchange or other disposition of any of the Mortgaged
Property, the lien and security interest created and provided for herein shall,
without break in continuity and without further formality or act, continue in
and attach to the instruments for the payment of money, accounts receivable,
contract rights and all other cash and non-cash proceeds of such sale, exchange
or disposition. The Mortgagee's right to proceeds specifically set forth herein
or indicated in any financing statement shall never constitute an express or
implied authorization on the part of the Mortgagee to Borrower' sale, exchange
or other disposition of any or all of the Mortgaged Property except as expressly
authorized in the Loan Documents or consented to in writing by Mortgagee.
The lien, security interests and rights granted to the Mortgagee hereunder
shall continue in full force and effect until expressly released by Mortgagee,
notwithstanding the termination of the line of credit provided in the Note and
Agreement or the fact that the Loan Account may from time to time be temporarily
in a credit position.
Section 6. Hazardous Substances. (a) Mortgagor hereby represents that
neither Mortgagor nor, to the best of Mortgagor's knowledge, after due inquiry,
any other person or entity has ever generated, used or disposed of any Hazardous
Substance (as defined below) from or in connection with the Mortgaged Property
or used the Mortgaged Property as a storage facility for any Hazardous
Substance.
(b) Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee
harmless from and against any and all losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' and
paralegals' fees, costs of any settlement or judgment and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted against,
Mortgagee by any person or entity or governmental agency for, with respect to,
or as a direct or indirect result of, the presence, usage, storage, generation
or disposal on or under or in connection with the Mortgaged
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Property, or the escape, seepage, leakage, spillage, discharge, emission,
discharging or release from the Mortgaged Property, of any Hazardous Substance
(including, without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' and
paralegals' fees, costs of any settlement or judgment or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liability Act, under any so called Federal, state or local "superfund" or
"superlien" law, or under any statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to or imposing liability, including strict
liability, or standards of conduct concerning any Hazardous Substance),
regardless of whether within the control of Mortgagee.
(c) For purposes of this Section 6, "Hazardous Substance" shall mean and
include those elements or compounds which are from time to time contained in the
list of hazardous substances adopted by the United States Environmental
Protection Agency ("EPA") and the list of toxic pollutants designated by
Congress or the EPA or defined by any other Federal, Florida, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material as now or at any time
hereafter in effect.
(d) If Mortgagor receives any notice of (i) the happening of any event
involving the spill, release, leak, seepage, discharge or cleanup of any
Hazardous Substance on or in connection with the Mortgaged Property or in
connection with operations thereon or (ii) any complaint, order, citation or
notice with regard to air emissions, water discharges, or any other
environmental, health or safety matter affecting or related to the Mortgaged
Property (an "Environmental Complaint") from any person or entity (including
without limitation the EPA), then Mortgagor shall within five (5) days notify
Mortgagee orally and in writing of said notice.
(e) If Mortgagor shall not effect the cleanup or removal, containment and
other action required as the result of such Environmental Complaint with
diligence and continuity in a manner reasonably satisfactory to Mortgagee within
180 days after notice thereof, then Mortgagee shall have the right but not the
obligation, and without limitation of Mortgagee's rights under this Mortgage, to
enter onto the Mortgaged Property or to take such actions as Mortgagee deems
necessary or advisable to cleanup, remove, resolve or minimize the impact of, or
otherwise deal with, any such Hazardous Substance or Environmental Complaint
following receipt of any notice from any person or entity (including without
limitation the EPA) asserting the existence of any Hazardous Substance or any
Environmental Complaint pertaining to the Mortgaged Property or any part thereof
which, if true, could result in an order, suit or other action against Mortgagor
and/or which, in the absolute and sole opinion of Mortgagee, could jeopardize
Mortgagee's security under this Mortgage. All reasonable costs and expenses
incurred by Mortgagee in the exercise of any such rights and shall be payable by
Mortgagor within ten (10) days following receipt of a notice therefor, shall
bear interest thereafter at the Default Rate and shall be secured by this
Mortgage.
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(f) Mortgagee shall have the right, in its reasonable discretion, to
require Mortgagor to periodically (but not more frequently than annually unless
an Environmental Complaint is then outstanding) perform (at Mortgagor's expense)
an environmental audit and, if deemed necessary by Mortgagee, an environmental
risk assessment, each of which must be satisfactory to Mortgagee, of the
Mortgaged Property, of hazardous waste management practices and/or hazardous
waste disposal sites used in connection with operations conducted at the
Mortgaged Property. Said audit and/or risk assessment must be an environmental
consultant reasonably satisfactory to Mortgagee. Should Mortgagor fail to
perform said environmental audit and/or risk assessment within thirty (30) days
of Mortgagee's written request, Mortgagee shall have the right but not the
obligation to retain an environmental consultant to perform said environmental
audit and/or risk assessment. All costs and expenses incurred by Mortgagee in
the exercise of such rights shall be secured by this Mortgage and shall be
payable by Mortgagor upon demand or charged to Mortgagor's loan balance at the
discretion of Mortgagee.
(g) Any breach of any warranty, representation or agreement contained in
this Section 6 shall, after any required notice and opportunity to cure by use
of diligence and continuity, be an Event of Default under this Mortgage and
shall entitle Mortgagee to exercise any and all remedies provided in this
Mortgage or otherwise permitted by law. The provisions of this Section 6 shall
survive satisfaction, release or foreclosure of this Mortgage and shall inure to
the benefit of any transferee of title to the Mortgaged Property through
foreclosure of the Mortgage or any Loan Document or through deed in lieu thereof
(but only to the extent such transferee is Mortgagee, its successor, an assignee
of the Note, a participant of any of the foregoing or an affiliate or entity
related to any of the foregoing).
Section 7. Commercial Code and Financing Statement. This Mortgage
constitutes a security agreement, and creates a continuing security interest as
to all or any part of the Mortgaged Property which is of a nature that a
security interest therein can be created and perfected under the Uniform
Commercial Code from time to time in effect in the State in which the Mortgaged
Property is located, and all replacements and additions thereto and
substitutions and proceeds thereof. Mortgagee shall have all remedies of a
secured party under the Uniform Commercial Code with respect to any property
subject to the security interest created pursuant to this Section. This Mortgage
also constitutes a financing statement with respect to any and all property
included in the Mortgaged Property which is or may become fixtures. Mortgagor
hereby authorizes Mortgagee to file carbon, photographic or other reproduction
of a financing statement, and any such filing shall constitute a sufficient
financing statement under the Uniform Commercial Code.
Section 8. Maintenance and Use of Mortgaged Property. The Mortgagor at its
expense, shall keep the Mortgaged Property in good order and in a clean and safe
condition (ordinary wear and tear excepted) and shall make all necessary or
appropriate repairs, replacements, restorations and renewals thereof, interior,
exterior, structural and non-structural, ordinary and extraordinary, foreseen
and unforeseen. The Mortgagor will not do, or permit to be done, any act or
thing which
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might impair the value or usefulness of the Mortgaged Property or any part
thereof, will not commit or permit any waste of the Mortgaged Property or any
part thereof, and will not permit any unlawful occupation, business or trade to
be conducted on the Mortgaged Property or any part thereof. The Mortgagor shall
also, at its expense, promptly comply with all rights of way, privileges,
franchises, servitudes, licenses, easements, tenements, hereditaments,
restrictions of record and appurtenances being a part of, or burdening, the
Mortgaged Property. The Mortgagee understands that construction of subdivision
improvements, the movement of earth and soil and the construction of buildings
and other amenities is occurring upon the Mortgaged Property and agrees that the
same do not constitute waste to the extent done for the purpose of such
improvements and in accordance with applicable law and regulation.
Section 9. Compliance with Legal and Insurance Requirements. The
Mortgagor, at its expense, shall promptly comply with all Legal Requirements and
Insurance Requirements, and shall procure, maintain and comply with all permits,
licenses and other authorizations required for the construction, installation,
operation, maintenance and use of the Mortgaged Property. As used in this
Section, "Legal Requirements" means all laws, statutes, codes, acts, ordinances,
resolutions, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of all
governmental entities, departments, commissions, boards, courts, authorities,
agencies, officials and officers, foreseen and unforeseen, ordinary or
extraordinary, which now or at any time hereafter may be applicable to the
Mortgaged Property or any part thereof, or any use or condition of the Mortgaged
Property or any part thereof, and "Insurance Requirements" means all provisions
of any insurance policy covering or applicable to the Mortgaged Property or any
part thereof, all requirements of the issuer of any such policy, and all orders,
rules, regulations and other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) applicable to or
affecting the Mortgaged Property or any part thereof, or any use or condition
thereof. The Mortgagor may, at its expense and after prior written notice to the
Mortgagee, contest in good faith by appropriate legal proceedings any Legal
Requirement and postpone compliance therewith pending the resolution or
settlement of such contest provided that (i) such postponement does not, in the
reasonable opinion of the Mortgagee, adversely affect the condition, or value
of, or the lien of this Mortgage as to, any part of the Mortgaged Property, and
(ii) the Mortgagor shall deposit in escrow with the Mortgagee pending such
contest moneys sufficient in amount to cover the cost of compliance with Legal
Requirement in excess of Five Hundred Thousand Dollars ($500,000.00)so
contested.
Sections 10 and 11. Intentionally omitted.
Section 12. Payment of Taxes and Other Governmental Charges. The Mortgagor
shall pay promptly when due all taxes, assessments (whether general or special),
and other governmental charges of any kind whatsoever, foreseen or unforeseen,
ordinary or extraordinary, that now or may at any time hereafter be imposed,
assessed or levied against or with respect to the Mortgaged Property or any part
thereof, or upon the Mortgagee's interest therein (without regard to any law
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heretofore or hereafter enacted imposing payment of the whole or any part
thereof upon the Mortgagee). If requested by Mortgagee, within five (5) Business
Days after receipt of evidence of payment of real estate taxes or assessments
relating to the Mortgaged Property, and in any case not more than thirty (30)
days after the same are due and payable, Mortgagor shall deliver to Mortgagee
evidence of such payment in form and substance satisfactory to Mortgagee.
Mortgagor shall pay any and all documentary stamps and intangible taxes which
may be due with respect to any advance or readvance of loan proceeds. If at any
time any agency of the State of Florida shall determine that the documentary
stamps affixed to the Note are insufficient or if no documentary stamps have
been affixed and that such stamps should thereafter be affixed, the Mortgagor
shall pay for the same, together with any interest or penalties imposed in
connection with such determination and the amount of money needed to pay for
such stamps and penalties shall, until such stamps are purchased and affixed, be
a portion of the indebtedness secured hereby and bear interest from the date of
such determination at the rate set forth in the Note applicable to a period when
default exists thereunder.
If at any time applicable law shall require Internal Revenue Stamps to be
affixed to the Note, Mortgagor shall pay for the same, together with any
interest or penalties imposed in connection therewith. In the event of the
passage after the date of this Mortgage of any Federal, state or local law,
deducting from the value of real property for the purposes of taxation any lien
thereon, or changing in any way the laws of or the taxation of mortgages or
debts secured by mortgages for Federal, State or local purposes, or the manner
of the collection of any such taxes, and imposing a tax, either directly or
indirectly, on this Mortgage, the Note, any other indebtedness secured hereby or
any instrument securing the indebtedness secured hereby, the holder of this
Mortgage and of the debt which it secures shall have the right to declare the
debt secured by this Mortgage and any interest thereon due on a date to be
specified by written notice to Mortgagor from Mortgagee, which date shall be not
less than one hundred eighty (180) days after the date of such notice unless an
Event of Default exists, provided, however, that such election shall be
ineffective if the Mortgagor is permitted by law to pay the whole of such tax in
addition to all other payments required hereunder and if the Mortgagor, prior to
such specified date, does pay such tax and agrees to pay any such tax when
thereafter levied or assessed against the Mortgaged Property, and such agreement
shall constitute a modification of this Mortgage.
The Mortgagor may, at its expense and after prior notice to the Mortgagee,
by appropriate proceedings diligently prosecuted, contest in good faith the
validity or amount of any such taxes, assessments and other charges and, during
the period of such contest, permit the items so contested to remain unpaid.
During the period when the taxes, assessments or other charges so contested
remain unpaid, the Mortgagor shall deposit in escrow with the Mortgagee moneys
equal in amount to the amount of such contested taxes, assessments or charges in
excess of Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate.
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Section 13. Required Insurance Coverage. (a) The Mortgagor shall keep the
Mortgaged Property continuously insured for the benefit of the Mortgagee against
loss or damage by fire and other hazards included in a standard fire insurance
policy with extended coverage endorsement, including vandalism and malicious
mischief coverage and such other coverage as Mortgagee may reasonably require,
duly endorsed to show the interest of the Mortgagee under a standard
non-contributing mortgagee clause, in an amount equal to the greater of 80% of
the then replacement value of the Mortgaged Property (excluding such amounts as
are not insured by standard fire insurance policies, such as excavations,
underground foundations, piping, underground utilities, footings below ground
level lakes and ponds, and architect's fees relating to repair or restoration
resulting from damage covered by such insurance); but in no event shall the
amount of such insurance be less than that required to avoid co-insurance. The
loss deductible provision for any such insurance shall not exceed Ten Thousand
Dollars ($10,000.00).
(b) Intentionally omitted.
(c) The Mortgagor shall obtain and continuously maintain single limit
comprehensive general accident and public liability insurance in minimum amounts
of $2,500,000, with a loss deductible clause not to exceed Ten Thousand Dollars
($10,000.00), and naming the Mortgagee as an additional insured, and the
Mortgagee may, in its reasonable discretion, require such increases in coverage
as it deems necessary or advisable as a result of the operations conducted by
the Mortgagor on the Mortgaged Property and/or the insurance coverage carried by
other entities conducting similar operations.
(d) All insurance required to be obtained and maintained pursuant to this
Mortgage shall be obtained from generally recognized, responsible insurance
companies qualified or licensed to transact such business in the State of
Florida and otherwise satisfactory to the Mortgagee. Each policy of insurance
shall not be subject to cancellation or substantial modification without at
least thirty (30) days prior written notice to the Mortgagee.
(e) Mortgagor shall deposit with the Mortgagee all such policies of
insurance or, at the option of the Mortgagee, binders, certificates or other
evidence satisfactory to the Mortgagee that (i) the insurance required hereby
has been obtained and is in full force and effect, and (ii) all premiums thereon
have been paid in full. Prior to the expiration of any such insurance, the
Mortgagor shall furnish the Mortgagee with evidence satisfactory to the
Mortgagee that such insurance has been renewed or replaced and that all premiums
thereon have been paid in full, and all insurance policies required hereby are
in full force and effect.
(f) Subject to Section 18, Mortgagor hereby assigns to the Mortgagee all
of the Mortgagor's right, title and interest in and to all such policies of
insurance and in and to any insurance proceeds resulting therefrom to the full
extent of the indebtedness secured hereby, and authorizes and directs the
insurer to pay any and all such proceeds directly to the Mortgagee. The
Mortgagor shall have
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the right to adjust and compromise any claims under any such insurance policies,
with the approval of Mortgagee with respect to any claim in excess of
$1,000,000, which approval shall not be unreasonably withheld. In the event of a
foreclosure of this Mortgage, the purchaser of the Mortgaged Property shall
succeed to all the rights of the Mortgagor (including any right to unearned
premiums) in and to all policies of insurance assigned to the Mortgagee pursuant
hereto.
(g) Mortgagor shall maintain or cause to be maintained in connection with
the Mortgaged Property any workers' compensation coverage required by the laws
of the State in which the Mortgaged Property is located. If the Mortgaged
Property is used for (1) manufacturing purposes, or (2) any purpose involving
the use of machinery, mobile or production equipment, tank storage, or the
production of any gases, chemicals, or any use other than general office,
apartment living or storage purposes only, Mortgagor shall also maintain
liability insurance coverage to insure against any liability risks not covered
by workers' compensation coverage.
Section 14. Intentionally omitted.
Section l5. Disposition of Mortgaged Property; Liens and Encumbrances.
Except in connection with sales of single family residential dwellings or units
pursuant to bona fide contracts between Borrower and one or more Persons not an
Affiliate of Borrower as permitted by the Agreement, and except as expressly
permitted by Sections 11, 19 and 49 of this Mortgage, the Mortgagor shall not
sell, convey, assign, transfer, lease, or dispose of all or any part of the
Mortgaged Property, or any interest therein, or enter into any agreement for any
of the foregoing, in each case without the prior written consent of the
Mortgagee. The Mortgagor shall not directly or indirectly create or permit to
remain, and will promptly discharge, any mortgage, lien, encumbrance or charge
on, pledge of, security interest in or conditional sale or other title retention
agreement with respect to all or any part of the Mortgaged Property, or any
interest therein, or any revenues, income or profit or other sums arising from
the Mortgaged Property or any part thereof (including, without limitation, any
lien, encumbrance or charge as a result of operation of law) other than: (i) the
lien and security interest of this Mortgage; (ii) liens for taxes, assessments
and other governmental charges which are not at the time required to be paid
pursuant to Section l2 hereof; (iii) liens of mechanics', materialmen, suppliers
or vendors or rights thereto to the extent permitted by Section l6 hereof; and
(iv) the Permitted Prior Encumbrances specified in Section 1 hereof, if any.
Section l6. Mechanics' and Other Liens. The Mortgagor shall not permit any
construction or other liens to be filed or to exist against the Mortgaged
Property or any part thereof in an amount in excess of One Hundred Thousand
Dollars ($100,000.00) in any one instance or Two Hundred Fifty Thousand Dollars
($250,000.00) in the aggregate, and the Mortgagor shall, within sixty (60) days
after notice of the filing of any such lien, cause the same to be discharged of
record by payment, deposit, bond, order of a Court of competent jurisdiction or
otherwise.
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Section l7. No Claims Against Mortgagee. This Mortgage does not relate to
the construction of specific improvements and is for working capital pursuant to
the Agreement. Nothing contained in this Mortgage shall be construed as a
request by the Mortgagee, expressed or implied, for the performance of any labor
or services or the furnishing of any materials or other property with respect to
the Mortgaged Property or any part thereof, or be construed to give the
Mortgagor any right, power or authority to contract for or permit the
performance of any labor or services or the furnishing of any materials or other
property with respect to the Mortgaged Property or any part thereof, or be
construed to give the Mortgagor any right, power or authority to contract for or
permit the performance of any labor or services or the furnishing of any
material or other property on behalf of Mortgagee, or in such manner as to
provide the basis for any claim either against the Mortgagee or that any lien
based on the performance of such labor or services or the furnishing of any such
material or other property is prior to the lien of this Mortgage.
Section l8. Damage, Destruction, Eminent Domain.
(a) Mortgagor shall promptly notify Mortgagee in writing of any damage to
or destruction of any part of the Mortgaged Property, including a description of
the nature, extent and date of the damage, the estimated cost of repair, and
estimated net proceeds of insurance. Mortgagor shall promptly notify Mortgagee
in writing of any proposed, threatened or actual taking or injury to any part of
the Mortgaged Property pursuant to use of the power of eminent domain, including
a description of the nature, extent and date of the taking or proposed taking
and the estimated net proceeds of the condemnation award, or price for
conveyance under threat of condemnation.
(b) Mortgagor hereby assigns to Mortgagee all of Mortgagor's right, title
and interest in and to any and all such proceeds of insurance and/or eminent
domain awards (including any amount paid for a conveyance under threat of
condemnation), and all such proceeds shall be paid to Mortgagee for application
to the Mortgagee's costs of collection, any amounts then due pursuant to the
Note, the Agreement or this Mortgage, and then to the prepayment without premium
of principal; provided, however, that, subject to paragraph (c) below, and so
long as no Event of Default, or event which with notice or lapse of time or both
would constitute an Event of Default, has occurred, the Mortgagee shall promptly
remit to Mortgagor such insurance proceeds to the extent less than $1,000,000
resulting from a single loss and shall further permit such insurance proceeds
(to the extent not remitted to Borrower as aforesaid) to be used for the purpose
of repairing, replacing, restoring and rebuilding the Mortgaged Property as
nearly as practicable to the value, condition and character thereof immediately
prior to such damage or destruction, with such changes or alterations, however,
as the Mortgagor may deem necessary for proper use or operation of the Mortgaged
Property and as may be approved by the Mortgagee, in accordance with Section
18(e) hereof.
(c) If (i) any building being part of the Mortgaged Property is damaged or
destroyed to such an extent that (y) it cannot be reasonably repaired, replaced
or restored within a period of six (6)
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months to the condition thereof immediately preceding such damage or
destruction, or (z) its normal use and operation is prevented for a period of
six (6) months, or (ii) title to, or the temporary use of a significant portion
of the Mortgaged Property shall have been taken to such an extent that (v) the
Mortgaged Property cannot be reasonably repaired, replaced or restored within a
period of six (6) months to a condition not substantially different from that
existing prior to such taking, or (w) normal use and operation of the Mortgaged
Property is prevented for a period of six (6) months, then, in any of such
events, Mortgagor shall within thirty (30) days after receiving notice of any
such events, cause the value of such property to be re-appraised in a manner
satisfactory to Mortgagee and shall cause the amount outstanding pursuant to the
Agreement to be permitted within the applicable Loan Amount Limitation, whether
by subjecting additional Collateral hereto or by reducing the principal amount
outstanding pursuant to the Note and Agreement.
(d) Intentionally omitted.
(e) Mortgagor shall, regardless of the adequacy or availability of
insurance proceeds, if any, promptly commence and complete the restoration,
repair, replacement and rebuilding of the Mortgaged Property as nearly as
practicable to the value, condition and character thereof immediately prior to
any damage or destruction. Mortgagor shall, regardless of the adequacy or
availability of proceeds of condemnation, if any, promptly commence and complete
the restoration, repair, replacement and rebuilding of the Mortgaged Property as
nearly as practicable to the value, condition and character thereof immediately
prior to such taking. If no Event of Default or event which with notice or lapse
of time or both would constitute an Event of Default has occurred, Mortgagee
shall make any insurance proceeds remaining in its possession, as provided in
Paragraph (b) above, available for any such repair or restoration, and shall
disburse such funds as work progresses in accordance with and subject to
Mortgagee's then normal and customary construction loan disbursement practices
and procedures, provided that Mortgagee may require Mortgagor either to deposit
with Mortgagee, for disbursement prior to the disbursement of any such insurance
proceeds, the amount in addition to such available net proceeds of insurance
that will be required (in Mortgagee's judgment) to complete such repair or
restoration, or to provide Mortgagee with evidence satisfactory to Mortgagee
that such additional funds are available for such purposes.
Section l9. Leases. The Mortgagor shall not enter into any lease of all or
any part of the Mortgaged Property ("Lease") except for leases of individual
single family residences, lots or units to Persons not Affiliates of Borrower in
the ordinary course of business or except with the prior written consent of the
Mortgagee and pursuant to lease terms in form and substance satisfactory to the
Mortgagee. Unless otherwise provided by written instrument signed by the
Mortgagee, any and all Leases (other than Permitted Prior Encumbrances, if any)
shall be subordinated to this Mortgage. This Mortgage constitutes an absolute
and present assignment of all rentals, income and other revenues payable under
or derived from any and all Leases, subject only to the conditional license
granted by the Mortgagee to the Mortgagor to collect such rentals, income and
revenues during such times as no Event of Default shall have occurred hereunder.
Concurrently with the
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execution and delivery hereof, the Mortgagor has also executed and delivered to
the Mortgagee a collateral assignment of its interests as lessor in all Leases
and to all rentals, income and other revenues payable thereunder or derived
therefrom, as additional collateral for the indebtedness hereby secured.
The Mortgagor will perform, fulfill, comply with and observe each and
every material covenant, agreement and condition to be performed, fulfilled,
complied with and observed by the Mortgagor as lessor under the Leases, and will
not suffer or permit any material default of the Mortgagor as lessor thereunder
to occur (except defaults which are duly cured within the time provided in the
Leases for the curing thereof).
Section 20. Inspection. Mortgagee, its agents and employees shall have the
right to enter upon and inspect the Mortgaged Property at any and all reasonable
times for the protection of its interest in the Mortgaged Property and for such
other purposes as may in Mortgagee's sole discretion be necessary or desirable
in connection with the exercise of its rights hereunder or under the Agreement.
Section 2l. Intentionally omitted.
Section 22. Indemnification. The Mortgagor hereby protects, indemnifies
and saves harmless the Mortgagee, its officers, directors, agents and employees,
from and against any and all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation,
reasonable attorneys' fees and expenses) imposed upon, incurred by or asserted
against the Mortgagee or any of such persons by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof, (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways, excepting for those caused by
the negligence of the Mortgagee, (c) any use, disuse or condition of the
Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs,
vaults and vault space, if any, or any streets or ways, excepting for those
caused by the negligence of the Mortgagee, (d) any failure on the part of the
Mortgagor to perform or comply with any of the terms hereof or of the Agreement,
or any inaccuracy in any representation or warranty made by Mortgagor herein or
in the Agreement, (e) any necessity to defend any of the right, title or
interest conveyed by this Mortgage, (f) the performance of any labor or services
or the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof, (g) any subsidence or erosion of any part of the
surface of the Mortgaged Premises, including any shoreline or any bank of any
river, stream, creek, lake, ocean or other water source, or (h) the location or
existence of asbestos or any toxic or hazardous waste, chemicals, materials or
substance on, at, in or under the Mortgaged Property or any part thereof. If any
action, suit or proceeding is brought against the Mortgagee, or any of its
officers, directors, agents or employees, for any such reason, the Mortgagor,
upon the request of such party, will at the Mortgagor's expense, cause such
action, suit or proceeding to be resisted
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and defended by counsel satisfactory to the Mortgagee or such person. Any
amounts payable to an indemnified party under this Section which are not paid
within ten (10) days after written demand therefor shall bear interest at the
Default Rate from the date of such demand, and such amounts, together with such
interest, shall be indebtedness secured by this Mortgage. The obligations of the
Mortgagor under this Section shall survive any defeasance of the Mortgage.
Section 23. Events of Default. An Event of Default as defined in the
Agreement shall be an "Event of Default" under this Mortgage.
Section 24. Right to Cure. If the Mortgagor or any Borrower shall fail to
make any payment or perform any act required to be made or performed under this
Mortgage or the Agreement, the Mortgagee, upon reasonable notice to Mortgagor of
its intent to do so (not to exceed five (5) days) and without waiving or
releasing any obligation or default, may (but shall be under no obligation to)
make such payment or perform such act for the account and at the expense of the
Mortgagor and may enter upon the Mortgaged Property or any part thereof for such
purpose and take all such action thereon as, in its sole opinion, may be
necessary or appropriate therefor, all without prejudice to any other rights or
remedies available to Mortgagee. All payments so made by the Mortgagee and all
costs, fees and expenses incurred in connection therewith or in connection with
the performance by the Mortgagee of any such act, together with interest thereon
at the Default Rate (as hereinafter defined) from the date of payment or
incurrence, shall constitute additional indebtedness secured by this Mortgage
and shall be paid by the Mortgagor to the Mortgagee on demand.
Section 25. Remedies. If an Event of Default shall have occurred, the
Mortgagee may exercise any or all or any combination of the remedies conferred
upon or reserved to it under this Mortgage, the Agreement or any other Loan
Document, or now or hereafter existing at law or in equity or by statute.
Without limitation, the Mortgagee may (a) declare the entire unpaid principal
balance of the indebtedness secured hereby to be immediately due and payable,
without notice or demand, except as expressly required by the Loan Documents,
the same being expressly waived by the Mortgagor, and upon such declaration the
entire indebtedness secured hereby shall become immediately due and payable and
shall thereafter bear interest at a rate equal to five percent (5%) per annum in
excess of the rate that would otherwise be applicable pursuant to the terms of
the Note (the "Default Rate"); (b) proceed at law or equity to collect all
indebtedness secured by this Mortgage then due hereunder, whether at maturity or
by acceleration; (c) foreclose the lien of this Mortgage as against all or any
part of the Mortgaged Property; and (d) exercise any rights, powers and remedies
it may have as a secured party under the Uniform Commercial Code of the State in
which the Mortgaged Property is located, including, without limitation, the
option of proceeding as to both personal property and fixtures in accordance
with the Mortgagee's rights with respect to real property.
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Section 26. Waiver of Appraisement, Valuation. The Mortgagor hereby
waives, to the full extent that it may lawfully do so, the benefit of all
appraisement, valuation, stay and extension laws now or hereafter in force and
all rights of marshalling of assets in the event of any sale of the Mortgaged
Property, any part thereof or any interest therein, and any court having
jurisdiction to foreclose the lien hereof may sell the Mortgaged Property (real
or personal, or both) as an entirety or in such parcels, lots, manner or order
as the Mortgagee in its sole discretion may elect.
Section 27. Appointment of Receiver. If an Event of Default shall have
occurred, the Mortgagee shall be entitled, to the extent permitted by law, to
the appointment of a receiver for all or any part of the Mortgaged Property,
whether such receivership is incidental to a proposed sale of the Mortgaged
Property or otherwise. The foregoing is agreed to, in part, in recognition of
the fact that a delay in the management, development, disposition or other
activity involving the Mortgaged Property may substantially adversely affect
Mortgagee's security by virtue of the effects of Florida's Growth Management Act
and concurrency requirements and documents and instruments of record affecting
development of the Mortgaged Property.
Section 28. Possession, Management and Income; Assignment. If an Event of
Default shall have occurred, the Mortgagee, to the extent permitted under
applicable law, may enter upon and take possession of the Mortgaged Property or
any part thereof by force, summary proceedings, ejectment or otherwise, and may
remove Mortgagor and all other persons and any and all property therefrom and
may hold, operate and manage the same and receive all revenues, income or
profits accruing with respect thereto or any part thereof. The Mortgagee shall
have no liability for or by reason of any such taking of possession, entry,
removal or holding, operation or management, or for the failure to do so, except
for grossly negligent or intentional misconduct.
Section 29. Remedies Cumulative. Each right, power and remedy of the
Mortgagee provided for in this Mortgage, in the Note, in the Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy, and the exercise or beginning of the exercise or partial
exercise by the Mortgagee of any one or more of such rights, powers or remedies
shall not preclude the simultaneous or later exercise by the Mortgagee of any or
all such other rights, powers or remedies.
Section 30. Provisions Subject to Applicable Law. All rights, powers and
remedies provided herein may be exercised only to the extent that the exercise
thereof does not violate any applicable law, and are intended to be limited to
the extent necessary so that they will not render this Mortgage invalid,
unenforceable or not entitled to be recorded, registered or filed under any
applicable law.
Section 3l. No Waiver by Mortgagee. No failure by the Mortgagee to insist
upon the strict performance of any term hereof or to exercise any right, power
or remedy consequent upon a breach thereof shall constitute a waiver of any such
term or of any such breach. No waiver of any
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breach shall affect or alter this Mortgage, which shall continue in full force
and effect with respect to any other then existing or subsequent breach.
Section 32. Right to Xxx for Installments. Mortgagee shall have the right
from time to time to xxx for any sums required to be paid pursuant to the terms
of this Mortgage (whether principal, interest, taxes, insurance premiums, or
otherwise) as the same become due, without regard to whether or not the
principal or any other sums secured hereby shall then be due and payable, and
without prejudice to the right of the Mortgagee to accelerate the indebtedness
secured hereby or to commence an action for foreclosure or any other action for
a default or defaults by the Mortgagor existing at the time such earlier action
was commenced.
Section 33. Additional Security. Without impairment of the lien and rights
created by this Mortgage, the Mortgagee may accept additional security for the
indebtedness secured by this Mortgage from the Mortgagor or (without notice to
or the consent of the Mortgagor) from any other person or persons. Mortgagee may
release or subordinate any part of the security for the indebtedness secured by
this Mortgage without in any way impairing or affecting the validity or priority
of this Mortgage as to the Mortgaged Property not specifically released.
Mortgagee may resort to the security created by this Mortgage or to any such
additional security in such manner and order as Mortgagee may elect, in each
case without affecting the lien hereof and the rights conferred hereunder.
Section 34. Notices. Any notice, demand or request required or permitted
by this Mortgage shall be in writing and shall be deemed to have been
sufficiently given at the earlier of when personally delivered or at 6:00 P.M.
on the second Business Day after deposit in the United States certified or
registered mail, postage prepaid, and addressed to the address of the party to
whom such notice is directed as such address as is set forth at the beginning of
this Mortgage, and in the case of the Mortgagee, to the attention of the Legal
Department, or at such other address as any party may from time to time notify
the other by notice in writing as aforesaid. A Business Day is any day other
than a Saturday, Sunday or any day on which savings and loan associations are
authorized or required to be closed in the State of Ohio.
Section 35. Reimbursement of Attorneys' Fees and Expenses. If the
Mortgagee becomes a party to any action wherein the Mortgagee must establish or
defend the validity or priority of this Mortgage, the Mortgagor shall reimburse
the Mortgagee on demand for any and all such costs or expenses incurred by
Mortgagee, including, without limitation, attorneys' fees at all tribunal
levels, together with interest thereon at the Default Rate from the date such
costs and expenses are incurred, and all of said amounts, including interest,
shall constitute indebtedness secured by this Mortgage to the extent permitted
by law.
Section 36. Discharge of Mortgage. If the Note and all other sums payable
under this Mortgage and the Agreement shall have been fully paid, the line of
credit provided by the Note and
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Agreement shall have been terminated, then, upon the written request and at the
expense of the Mortgagor, the Mortgagee will execute and deliver the original
Note and such proper instruments of release and discharge as may reasonably be
requested to evidence the defeasance, release and discharge of this Mortgage.
The lien, security interests and rights granted to the Mortgagee herein
shall continue in full force and effect until expressly released by Mortgagee,
notwithstanding the termination of the line of credit provided by the Note and
Agreement or the fact that the Loan Account may from time to time be in a credit
position.
Section 37. Recordation. The Mortgagor, at its expense, shall cause this
Mortgage, any instruments supplemental hereto, and financing statements,
including all necessary amendments, supplements and appropriate continuation
statements, to be recorded, registered and filed, and to be kept recorded,
registered and filed, in such manner and in such places as may be required in
order to establish, preserve and protect the lien of this Mortgage as a valid,
first mortgage lien on all real property and fixtures included in the Mortgaged
Property and a valid, perfected first priority security interest in all fixtures
included in the Mortgaged Property (including in each such case, without
limitation, any such properties acquired after the execution hereof). If
requested by the Mortgagee, but in each case not more than once in each calendar
year, the Mortgagor, at its expense, will furnish the Mortgagee an opinion of
counsel satisfactory to the Mortgagee specifying the action required and taken
by the Mortgagor to comply with this Section 37 since the date of this Mortgage
or the date of the most recent such opinion (or stating that no such action is
or was necessary) and specifying all action which will be required to be taken
in the next succeeding twelve month period.
Section 38. Further Assurances. Mortgagor will properly execute and
deliver, or cause to be executed and delivered from time to time, at the request
of Mortgagee, all such further mortgages, security agreements, financing
statements, assignments of leases now existing or hereafter entered into,
transfers and such other assurances as the Mortgagee shall require for better
assuring, mortgaging, pledging, assigning and confirming unto the Mortgagee all
and singular the Mortgaged Property and the title thereto; provided, however,
that no such assurance shall create liability or security not contemplated by
the Agreement.
Section 39. Estoppel Affidavits. The Mortgagor or the Mortgagee, as the
case may be, within ten (l0) days after written request from the other party,
shall furnish a written statement, duly acknowledged, setting forth the unpaid
principal of, and interest on the indebtedness secured hereby, and in the case
of the Mortgagor only, whether or not any offsets or defenses exist against the
obligations of Mortgagor to pay such principal and interest.
Section 40. Amendments, Changes and Modifications. Except as otherwise
provided in this Mortgage, this Mortgage may not be effectively amended,
changed, modified, altered or terminated
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without the prior written consent of the Mortgagee. If the payment of the
indebtedness secured by this Mortgage, or any part thereof, be extended or
varied, or if any part of the security or guaranties therefor be released, then
all persons now or at any time hereafter liable therefor, or interested in the
Mortgaged Property, shall be held to assent to such extension, variation or
release and their liability and the lien of this Mortgage and all provisions
hereof shall continue in full force and effect. The right of recourse against
all such persons is expressly reserved by Mortgagee, notwithstanding any such
extension, variation or release. Any person, firm or corporation taking a junior
mortgage, or other lien upon the Mortgaged Property or any part thereof or any
interest therein, shall take said lien subject to the rights of Mortgagee to
amend, modify, extend or release this Mortgage, the Agreement or any other
document or instrument evidencing, securing or guarantying the indebtedness
secured by this Mortgage, in each and every case without obtaining the consent
of the holder of such junior lien and without the lien of this Mortgage losing
its priority over the rights of any such junior lien. Any acceptance by the
Mortgagee of part payment of any installment of principal or interest, or both,
or part performance of any covenant, or delay by mortgagee for any period of
time in exercising the option to accelerate any indebtedness evidenced by the
Note or secured by this Mortgage shall not operate as a waiver of the right to
exercise such option to accelerate such indebtedness.
Section 4l. Governing Law. This Mortgage shall be deemed to be made under
the laws of the State of Florida and for all purposes shall be governed by and
construed in accordance with the laws of the State of Florida.
Section 42. Binding Effect. This Mortgage shall inure to the benefit of
and be binding upon the Mortgagor, its successors and assigns, and the
Mortgagee, its successors and assigns, provided that this Mortgage may not be
assigned by the Mortgagor without the prior written consent of the Mortgagee and
may not be assigned by the Mortgagee, except as provided in the Agreement.
Section 43. Severability. If any term or provision of this Mortgage, or
the operation thereof, shall be held to be invalid, illegal or unenforceable,
the validity of the remaining provisions hereof, and the operation thereof,
shall in no way be affected thereby, each of which shall be deemed to be
effective to the full extent permitted by law.
Section 44. Captions. The captions or headings herein shall be solely for
convenience of reference and in no way define, limit or describe the scope or
intent of any provisions or sections of this Mortgage.
Section 45. Counterparts. This Mortgage may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which
shall constitute but one and the same instrument; it shall not be necessary in
proving this Mortgage to produce or account for more than one such counterpart,
or a copy hereof certified by the appropriate recording officer.
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Section 46. Joint and Several Liability. If Mortgagor consists of more
than one party, each of the undersigned shall be jointly and severally liable
for the performance of all of the obligations, covenants and agreements of the
Mortgagor contained herein.
Section 47. No Setoffs. Mortgagor acknowledges that the indebtedness
secured hereby was incurred in good faith for full value received, and the
Mortgagor has no defenses, setoffs or counterclaims thereto.
Section 48. Definitions. Whenever in this instrument the context so admits
or requires, the terms "Mortgagor" and "Mortgagee" shall be construed as
including their respective heirs, legal representatives, successors and assigns,
as the case may be (provided, however, that nothing herein shall be construed to
permit the assignment of this Mortgage by Mortgagor; and the pronoun as used
herein to refer to either Mortgagor or Mortgagee in the third person, singular
number and masculine gender, shall be construed as meaning the person, number
and gender appropriate to the first designation to the respective parties
hereto.
Section 49. Partial Releases. Mortgagee will consent to the sale of any
Single Family Residence (as defined in the Agreement) and a partial release of
such Single Family Residence from the lien and operation of this Mortgage can be
obtained upon Mortgagor's request and at Mortgagor's expense, subject to the
following terms and conditions:
(a) No Event of Default has occurred and is existing;
(b) Mortgagor, at its own expense, has submitted to Mortgagee at least two
(2) weeks prior to the date the release is required: (i) a legal description and
sketch of survey or recorded plat of the portion of the Mortgaged Property to be
released and other documentation as Mortgagee may deem reasonably necessary; and
(ii) a properly prepared partial release instrument in form and substance
satisfactory to Mortgagee, in Mortgagee's reasonable judgment;
(c) Suitable ingress and egress are assured for the remaining portion of
the Premises subject to this Mortgage in the reasonable judgment of Mortgagee;
and
(d) Evidence of compliance with the requirements of such Federal, State or
local laws and regulations as may from time to time apply to such sales,
satisfactory to Mortgagee in its reasonable judgment.
When all of the foregoing conditions are satisfied in Mortgagee's determination,
Mortgagee will, within ten (10) days after its receipt of the last of such
items, execute and deliver the partial release of Mortgage to the appropriate
escrow agent to be held in escrow pending the closing of the sale by Mortgagor
of the Mortgaged Property to be released.
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Section 50. WAIVER OF JURY TRIAL. THE MORTGAGOR AND MORTGAGEE EACH WAIVES
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED
TO, ANY ASPECT OF THE TRANSACTION IN CONNECTION WITH WHICH THIS DOCUMENT IS
BEING GIVEN OR ANY DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH SUCH
TRANSACTION. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY
MORTGAGOR AND MORTGAGEE, AND EACH OF THE MORTGAGOR AND MORTGAGEE EACH
ACKNOWLEDGES THAT NO ONE HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. MORTGAGOR
AND MORTGAGEE EACH FURTHER ACKNOWLEDGES HAVING BEEN REPRESENTED IN CONNECTION
WITH THE TRANSACTION WITH RESPECT TO WHICH THIS DOCUMENT IS BEING GIVEN AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY ITS OWN FREE
WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH SUCH
COUNSEL. MORTGAGOR AND MORTGAGEE EACH ACKNOWLEDGES HAVING READ AND UNDERSTOOD
THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
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IN WITNESS WHEREOF, this instrument has been signed and acknowledged this
day of _______________, 1993.
Signed and Acknowledged
in the Presence of:
ORIOLE HOMES CORP.
Name Printed:
By: ________________________________________
and: ________________________________________
Name Printed:
Witnesses as to ORIOLE HOMES CORP.
STATE OF FLORIDA )
)
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgements, the
foregoing instrument was acknowledged before me by
______________________________________, the ___________________, of ORIOLE HOMES
CORP., a Florida corporation, freely and voluntarily under authority duly vested
in him/her by said corporation and that the seal affixed thereto is the true
corporate seal of said corporation. He/She is personally known to me or has
produced ________________________ as identification and DID/DID NOT take an
oath.
WITNESS my hand and official seal in the County and State last aforesaid
this _____ day of _______________, 1993.
-------------------------------------------
(SEAL)
Notary Public
State of Florida
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Typed, printed or stamped name of
Notary Public
My Commission Expires:___________________
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EXHIBIT A
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(Legal Description)
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Exhibit B
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(Permitted Encumbrances)
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