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EXHIBIT 4-D
This instrument prepared by:
XXXXXX X. XXXXX, Esquire
Clark, Partington, Xxxx, Xxxxx,
Bond, Xxxxxxxxxx & Xxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
STATE OF FLORIDA
COUNTY OF ESCAMBIA MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT, dated the 25th day of April, 1994,
from CUCOS INC., a Louisiana corporation, whose address is 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx 00000 (hereinafter the "Mortgagor"), to FIRST
NATIONAL BANK OF COMMERCE, whose address is 000 Xxxxxxx Xxxxxx, X.X. Xxx 00000,
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000 (hereinafter the "Mortgagee"), WITNESSETH:
SECTION 1.
1.01 PREMISES. Mortgagor, for and in consideration of the premises, as security
for the Secured Indebtedness, as that term is hereinafter defined, and other
good and valuable consideration, the receipt of which is hereby acknowledged,
does hereby bargain, sell, convey and grant unto the Mortgagee, its successors
and assigns, the following (hereinafter collectively the "Premises"):
A. REAL PROPERTY. That certain real property lying and being in Escambia County,
Florida and being more particularly described as follows:
A parcel of land in Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 30 West, Escambia County, Florida, described as follows: All of
Lot 7 and the East 225.00 feet of Lot 6, according to Plat by X.X.
Xxxxxx, dated September 20, 1943, and recorded in Deed Book 195, at
Page 238, of the Public Records of said County.
B. IMPROVEMENTS. All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Real Property, all building
materials, plans, specifications, drawings and books and records pertaining to
design or construction of any buildings, structures and improvements now or
hereafter situated on the Real Property, and all gas and electric fixtures,
radiators, heaters, engines and machinery, boilers, ranges, elevators and
motors, plumbing and heating fixtures, carpeting and other floor coverings, fire
extinguishers and any other safety equipment required by governmental regulation
or law, washers, dryers, water heaters, mirrors, mantles, air conditioning
apparatus, refrigeration plants, refrigerators, cooking apparatus and
appurtenances, window screens, awnings and storm sashes which are or shall be
attached to said buildings, structures or improvements, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Real Property
and a part of the Premises as between the parties hereto and all persons
claiming by, through or under them.
C. APPURTENANCES. All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, and passages, sewer rights, water rights and
powers, minerals, flowers, shrubs, trees and other emblements now or hereafter
located on the Real Property or under or above the same or any part or parcel
thereof and all estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments and appurtenances, reversions and remainders,
whatsoever, in any way belonging, relating or appertaining to the Real Property
or Improvements or any part thereof, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by
Mortgagor.
TO HAVE AND TO HOLD the same, together with all and singular the tenements,
hereditaments and appurtenances thereunto belonging or in anywise appertaining,
to Mortgagee, its successors and assigns in fee simple forever.
1.02 PERMITTED ENCUMBRANCES. Mortgagor, for himself, his heirs, successors,
assigns and legal representatives, covenants with Mortgagee, its successors and
assigns, that: (i) Mortgagor is indefeasibly seized of the Premises in fee
simple; that Mortgagor has full power and lawful right to convey the same in fee
simple as aforesaid; that the Premises and every part thereof is free from all
encumbrances of every kind and character except for taxes assessed for the year
of closing and those matters, if any, described on Exhibit "A" attached hereto
and made a part hereof (the "Permitted Encumbrances"); that the Mortgagor will
make such further assurances to perfect the fee simple title to the Premises in
Mortgagee, its successors and assigns, as may reasonably be required; that the
Mortgagor does hereby fully warrant the title to the Premises and every part
thereof and will defend the same against the lawful claims of all persons
whomsoever except for the Permitted Encumbrances; (ii) Mortgagor shall duly,
promptly and fully perform, discharge, execute, effect, complete, comply with
and abide by each and every of the stipulations, agreements, conditions and
covenants of the Note and all other documents or instruments evidencing or
securing the Secured Indebtedness, as those terms are hereinafter defined; (iii)
the Premises and its use fully complies with all applicable building and zoning
codes and other land use regulations, any applicable environmental laws or
regulations, and any other applicable laws or regulations; (iv) no part of the
Real Property has been artificially filled; and (v) Mortgagor has lawful access
to the Premises from a public road.
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1.03 SECURED INDEBTEDNESS. This conveyance is intended to be and is a real
property Mortgage and a "Security Agreement" governed by the laws of the State
of Florida concerning mortgages and the Uniform Commercial Code as adopted in
Florida, and is intended to secure the payment of the following (the "Secured
Indebtedness"):
A. The existing indebtedness represented by that certain promissory note (the
"Note") of date even herewith for the sum of FOUR HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($450,000.00) made by the Mortgagor payable to the order of
Mortgagee with interest from date until paid at the rate therein specified, the
said principal and interest payable in the manner and upon the terms, provisions
and conditions set forth in the Note, together with any and all renewals,
extensions, modifications, consolidations and extensions thereof;
B. Such future or additional advances as may be made by Mortgagee at the option
of Mortgagee to the Mortgagor, and also, the payment of any and all notes,
liabilities, and obligations of the Mortgagor to Mortgagee, its successors or
assigns, whether as maker, endorser, guarantor or otherwise, and whether such
notes, liabilities or obligations, or any of them, be now in existence or accrue
or arise hereafter, or be now owned or held by Mortgagee, or be acquired
hereafter, it being the intent and purpose of the Mortgagor to secure, by the
Mortgage, all notes, claims, demands, liabilities and obligations which
Mortgagee, its successors or assigns, may have, hold or acquire at any time
during the life of this Mortgage against the Mortgagor. Provided that,
notwithstanding the foregoing, the total of all amounts secured hereby shall not
exceed at any one time the sum of NINE HUNDRED THOUSAND AND NO/100 DOLLARS
($900,000.00); and provided, further, that all such advances, notes, claims,
demands or liabilities and obligations secured hereby be incurred or arise or
come into existence either on or prior to the date of this Mortgage, or on or
before twenty (20) years after the date of this Mortgage or within such lesser
period of time as may hereafter be provided by law as a prerequisite for the
sufficiency of actual notice or record notice of such advances, notes, claims,
demands or liabilities and obligations as against the rights of creditors or
subsequent purchasers for a valuable consideration. The Mortgagor hereby waives,
on behalf of himself and his successors and assigns, the right to file for
record a notice limiting the maximum principal amount which may be secured by
this Mortgage as provided for in Florida Statutes 697.04(1)(b); and
C. The compliance with all the covenants, agreements and stipulations of this
Mortgage, the Note, and any and all documents or instruments evidencing,
securing or otherwise executed in connection with the Secured Indebtedness.
SECTION 2.
Mortgagor further covenants and agrees as follows:
2.01 PAYMENT OF INDEBTEDNESS. To pay all and singular the principal and interest
and other sums of money payable by virtue of the Secured Indebtedness, as in the
Note, any instrument or instruments evidencing one or more future or additional
advances, and/or this Mortgage provided, promptly on the days that the same
respectively become due.
2.02 MAINTENANCE AND REPAIR. To keep perfect and unimpaired the security hereby
given and to permit, commit or suffer no waste, impairment or deterioration of
the Premises or any part thereof. Mortgagor shall comply with all restrictive
covenants, statutes, ordinances and requirements of any governmental authority
relating to the Premises, and shall not join in, consent to or initiate any
change in such restrictive covenants, statutes, ordinances or requirements
without the express written consent of Mortgagee.
2.03 TAXES, LIENS AND OTHER CHARGES. To pay all and singular the taxes,
assessments, obligations and encumbrances of every nature now on the Premises or
that hereafter may be levied, assessed or imposed thereon when due and payable
according to law and before they become delinquent; and if the same not be
promptly paid Mortgagee may, at any time either before or after delinquency, pay
the same without waiving or affecting its right to foreclose this Mortgage or
any other right hereunder and all sums so paid shall become a part of the
Secured Indebtedness and at the option of Mortgagee, shall bear interest from
the date of each such payment at the maximum rate allowed by law. Upon
notification from Mortgagee, Mortgagor shall pay to Mortgagee, together with and
in addition to the payments of principal and interest payable under the terms of
the Note secured hereby, on installment paying dates in the Note, until said
Note is fully paid or until notification from Mortgagee to the contrary, an
amount reasonably sufficient (as estimated by Mortgagee) to provide Mortgagee
with funds to pay said taxes, assessments, insurance premiums, rents and other
charges next due so that Mortgagee will have sufficient funds on hand to pay the
same thirty (30) days before the date upon which they become past due. In no
event shall Mortgagee be liable for any interest on any amount paid to it as
herein required, and the money so received shall be held in a separate account,
pending payment or application thereof as herein provided. As required by
Mortgagee, Mortgagor shall furnish to Mortgagee, at least thirty (30) days
before the date on which same will become past due, an official statement of the
amount of said taxes, assessments, insurance premiums and rents next due, and
Mortgagee shall pay said charges to the amount of the then unused credit
therefor as and when they become severally due and payable. An official receipt
therefor shall be conclusive evidence of such payment and the validity of such
charges.
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2.04 INSURANCE. Mortgagor will keep the Premises insured against loss or damage
by fire, flood and such other risks and matters including, without limitation,
business interruption, rental loss, public liability and boiler insurance, as
Mortgagee may from time to time require in amounts required by Mortgagee, not
exceeding in the aggregate 100% of the full insurable value of the Premises and
shall pay the premiums for such insurance as same become due and payable. All
policies of insurance (the "Policies") shall be issued by an insurer acceptable
to Mortgagee and shall contain the standard New York Mortgagee non-contribution
provision naming Mortgagee as the person to which all payments made by such
insurance company shall be paid. Mortgagor will assign and deliver the Policies
to Mortgagee. Not later than thirty (30) days prior to the expiration date of
each of the Policies, Mortgagor will deliver to Mortgagee evidence satisfactory
to Mortgagee of the renewal of each of the Policies. If the Premises shall be
damaged or destroyed, in whole or in part, by fire or other casualty, Mortgagor
shall give prompt notice thereof to Mortgagee. Sums paid to Mortgagee by any
insurer may be retained and applied by Mortgagee toward payment of the Secured
Indebtedness in such priority and proportions as Mortgagee in its discretion
shall deem proper or, at the discretion of Mortgagee, the same may be paid,
either in whole or in part, to Mortgagor for such purposes as Mortgagee shall
designate. If Mortgagee shall receive and retain such insurance money, the lien
of this Mortgage shall be reduced only by the amount thereof received after
expenses of collection and retained by Mortgagee and actually applied by
Mortgagee in reduction of the Secured Indebtedness.
2.05 EXPENSES. To pay all and singular the costs, charges and expenses,
including reasonable attorneys' fees and costs of abstracts of title, incurred
or paid at any time by Mortgagee or its assigns in collecting or attempting to
collect the Secured Indebtedness or in foreclosing or attempting to foreclose
this Mortgage or in enforcing any of its rights hereunder or incurred or paid by
it because of the failure on the part of the Mortgagor promptly and fully to
perform the agreements and covenants of the instrument or instruments evidencing
the Secured Indebtedness and this Mortgage; and said costs, charges and expenses
shall be immediately due and payable and shall be secured by the lien of this
Mortgage.
2.06 CONDEMNATION. Notwithstanding any taking of any property, herein conveyed
and agreed to be conveyed, by eminent domain, alteration of the grade of any
street or other injury to, or decrease in value of, the Premises by any public
or quasi-public authority or corporation, Mortgagor shall continue to pay
principal and interest on the Secured Indebtedness, and any reduction in the
Secured Indebtedness resulting from the application by Mortgagee of any award or
payment for such taking, alterations, injury or decrease in value of the
Premises, as hereinafter set forth, shall be deemed to take effect only on the
date of such receipt; and said award or payment may, at the option of Mortgagee,
be retained and applied by Mortgagee toward payment of the Secured Indebtedness,
or be paid over, wholly or in part, to Mortgagor for the purpose of altering,
restoring or rebuilding any part of the Premises which may have been altered,
damaged or destroyed as a result of any such taking, alteration of grade, or
other injury to the Premises, or for any other purpose or object satisfactory to
Mortgagee, but Mortgagee shall not be obligated to see to the application of any
amount paid over to Mortgagor. If, prior to the receipt by Mortgagee of such
award or payment, the Premises shall have been sold on foreclosure of this
Mortgage, Mortgagee shall have the right to receive said award or payment to the
extent of any deficiency found to be due upon such sale, with legal interest
thereon, whether or not a deficiency judgment on this Mortgage shall have been
sought or recovered or denied, and of the reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with the collection of such
award or payment.
2.07 REPAIRS BY MORTGAGEE. Mortgagee shall have the right from time to time to
expend such sums as it shall deem necessary to keep the Premises in good
condition and repair, and all sums so expended shall be added to and become a
part of the Secured Indebtedness and shall bear interest and be payable as
herein provided for the payment of Secured Indebtedness and interest and the
lien of this Mortgage shall extend to and secure the same.
2.08 INDEMNIFICATION. Mortgagor shall protect, indemnify and save harmless
Mortgagee from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation
attorneys' fees and expenses) imposed upon or incurred by or asserted against
Mortgagee by reason of (a) ownership of this Mortgage, the Premises or any
interest therein or receipt of any rents; (b) any accident, injury to or death
of persons or loss of or damage to property occurring in, on or about the
Premises or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (c) any use, nonuse or
condition in, on or about the Premises or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(d) any failure on the part of Mortgagor to perform or comply with any of the
terms of this Mortgage; or (e) performance of any labor or services or the
furnishing of any materials or other property in respect of the Premises or any
part thereof. Any amounts payable to Mortgagee by reason of the application of
this paragraph shall become part of the Secured Indebtedness and shall bear
interest and be payable as herein provided for the payment of the Secured
Indebtedness and interest and the lien of this Mortgage shall extend to and
secure the same. The obligations of Mortgagor under this paragraph shall survive
any termination or satisfaction of this Mortgage.
2.09 HAZARDOUS SUBSTANCES. Mortgagor shall not cause or permit the presence,
use, disposal, storage, or release of any Hazardous Substances (hereinafter
defined) on or in the Premises. Mortgagor shall not do, nor allow anyone else to
do, anything affecting the Premises that is in violation of any Environmental
Law (hereinafter defined). Mortgagor shall promptly give Mortgagee written
notice of any investigation, claim, demand, lawsuit or other action by any
governmental or regulatory agency or private party involving the
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Premises and any Hazardous Substance or Environmental Law of which Mortgagor has
actual knowledge. If Mortgagor learns, or is notified by any governmental or
regulatory authority, that any removal or other remediation of any Hazardous
Substance affecting the Premises is necessary, Mortgagor shall promptly take all
necessary remedial actions in accordance with Environmental Law at Mortgagor's
expense. As used in this paragraph, "Hazardous Substances" are those substances
defined as toxic or hazardous substances by Environmental Law, and the following
substances: (i) gasoline, kerosene, other flammable or toxic petroleum products,
toxic pesticides and herbicides and volatile solvents (other than such small
quantities thereof as are generally recognized as being appropriate to normal
use and to maintenance of the Premises), and (ii) materials containing asbestos
or formaldehyde, and radioactive materials. As used in this paragraph,
"Environmental Law" means federal laws and laws of the jurisdiction where the
Premises are located that relate to health, safety or environmental protection.
To the maximum extent permitted by applicable law, Mortgagor shall indemnify
Mortgagee and Mortgagee's successors, assigns, officers, directors,
shareholders, employees, affiliates and agents (collectively, the "Indemnitees")
against any and all liabilities, losses, damages or expenses suffered or
incurred by Indemnitees as the result of Mortgagor's failure to observe or
perform any of the provisions of this paragraph, as a result of the failure of
Mortgagor or any other person to comply with any Environmental Law affecting the
Premises or as a result of the presence, storage, disposal or treatment on the
Premises of any Hazardous Substance. The indemnification obligations of
Mortgagor under this paragraph shall survive payment or satisfaction of the
Secured Indebtedness and any acquisition of the Premises by Mortgagee by
foreclosure of this Mortgage, by conveyance in lieu of foreclosure or otherwise,
and such provisions shall remain in full force and effect as long as the
possibility exists that Indemnitees may suffer or incur any such liabilities,
losses, damages or expenses.
SECTION 3.
3.01 EVENT OF DEFAULT. Each of the following events shall constitute an "Event
of Default" under this Mortgage: (i) should Mortgagor fail to pay the Secured
Indebtedness or any part thereof, when and as the same shall become due and
payable; (ii) should any warranty or representation of Mortgagor herein
contained, or contained in any instrument, transfer, certificate, statement,
conveyance, assignment or loan agreement given with respect to the Secured
Indebtedness, prove untrue or misleading in any material aspect; (iii) should
the Premises be subject to actual or threatened waste, or any part thereof be
removed, demolished or materially altered so that the value of the Premises be
diminished; (iv) should any federal tax lien or claim of lien for labor or
material be filed of record against Mortgagor or the Premises and not be removed
by payment or bond within thirty (30) days from date of recording; (v) should
any claim of priority to this Mortgage by title, lien or otherwise be asserted
in any legal or equitable proceeding which is not fully covered by applicable
title insurance; (vi) should Mortgagor or any guarantor of the Secured
Indebtedness make any assignment for the benefit of creditors, or should a
receiver, liquidator or trustee of Mortgagor or any guarantor of the Secured
Indebtedness or of any of Mortgagor's or any guarantor's of the Secured
Indebtedness property be appointed, or should any petition for the bankruptcy,
reorganization or arrangement of Mortgagor or any guarantor of the Secured
Indebtedness pursuant to the Federal Bankruptcy Act or any similar statute, be
filed, or should Mortgagor or any guarantor of the Secured Indebtedness be
adjudicated a bankrupt or insolvent, or should Mortgagor or any guarantor of the
Secured Indebtedness in any proceeding admit his insolvency or inability to pay
his debts as they fall due or should Mortgagor, if a corporation, be liquidated
or dissolved; (vii) should Mortgagor fail to keep, observe, perform, carry out
and execute in every particular the covenants, agreement, obligations and
conditions set out in this Mortgage, or in the Note or in any instrument given
with respect to the Secured Indebtedness; (viii) should Mortgagor transfer,
convey, encumber, mortgage, grant a security interest in or otherwise convey any
interest in the Premises whatsoever without the prior written consent of
Mortgagee excluding the creation of a purchase money security interest for
household appliances, a transfer by devise, descent or by operation of law upon
the death of a joint tenant or the grant of any leasehold interest of three (3)
years or less not containing an option to purchase; (ix) should an event of
default or an event that but for the passage of time or giving of notice would
constitute an event of default occur under the terms of any mortgage or any note
secured by said mortgage or any other document or security instrument given in
connection therewith given from Mortgagor to Mortgagee; (x) should an event of
default or an event that but for the passage of time or giving of notice would
constitute an event of default occur under the terms of any other mortgage
encumbering all or any portion of the Premises; or (xi) should Mortgagor
hereafter attempt to limit the maximum principal amount which may be secured by
this Mortgage. Notwithstanding anything herein to the contrary, Mortgagor shall
be entitled to written notice and 30 days to cure any non-monetary defaults
under Section (vii) of this paragraph.
3.02 REMEDIES. If an Event of Default occurs and remains uncured, then in either
or any such event, the aggregate sum or sums secured hereby then remaining
unpaid, with interest accrued at that time, and all moneys secured hereby, shall
become due and payable forthwith, or thereafter, at the option of Mortgagee, or
its assigns, as fully and completely as if all of the said sums of money were
originally stipulated to be paid on such date, anything in the Note or any
instrument or instruments or in this Mortgage to the contrary notwithstanding;
and thereupon, or thereafter, at the option of Mortgagee, or its assigns,
without notice or demand, suit at law or in equity may be prosecuted as if all
moneys secured hereby had matured prior to its institution. The Mortgagee, or
its assigns, may do either or both of the following as to the amount so declared
due and payable: (i) bring an action to enforce payment of the amount so
declared due and payable, with or without bringing an action to foreclose this
Mortgage; and/or (ii) foreclose this Mortgage as to the amount so declared due
and payable, and the Premises, or any part or parts thereof, in one or more
sales as determined by Mortgagee, shall be sold to satisfy and pay the same with
costs, expenses and allowances. In
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addition, Mortgagee shall also be entitled to take such action and avail itself
of such remedies as may be available under the Uniform Commercial Code in effect
in the State of Florida.
3.03 RECEIVER. In the event a suit shall be instituted to foreclose this
Mortgage, Mortgagee, its successors or assigns, shall be entitled to apply at
any time pending such foreclosure suit to the court having jurisdiction thereof
for the appointment of a receiver for all and singular the Premises and of all
the rents, income, profits, issues and revenues thereof, from whatsoever source
derived, with the usual powers and duties of receivers in like cases and such
appointment shall be made by such court as a matter of strict right to
Mortgagee, its successors or assigns, without reference to the adequacy or
inadequacy of the value of the property hereby mortgaged or to the solvency or
insolvency of the Mortgagor, Mortgagor's legal representatives, successors or
assigns, and that such rents, profits, incomes, issues, and revenues shall be
applied by such receiver to the payment of the Secured Indebtedness, costs, and
charges, according to the order of said court. The Mortgagor hereby specifically
waives the right to object to the appointment of a receiver as described herein
and hereby expressly consents that such appointment shall be made as an admitted
equity and is Mortgagee's absolute right, and that the appointment may be done
without notice to the Mortgagor. Mortgagor further consents to the appointment
of Mortgagee or any officer or employee of Mortgagee as receiver.
SECTION 4.
4.01 PRIOR LIENS, LEASEHOLD, OR CONDOMINIUM. If this is a junior Mortgage, or if
this is a mortgage on a leasehold estate, Mortgagor shall pay all installments
of principal and interest and perform each and every covenant and obligation of
the prior mortgage or the lease. Failure of Mortgagor to do so shall constitute
a default hereunder. Upon failure of Mortgagor to do so, Mortgagee may (but
shall not be required to) make such payments or perform such covenants or
obligations and the cost of same, together with interest at the maximum rate
allowed by law, shall be payable by Mortgagor upon demand by Mortgagee and shall
be secured by the lien of this Mortgage. If this is a junior Mortgage and
Mortgagor increases the amount due on any prior mortgage without Mortgagee's
prior written consent, Mortgagee may, at its option, immediately or thereafter
declare this Mortgage and the indebtedness secured hereby due and payable
forthwith and thereupon may, at its option, proceed to foreclose this Mortgage.
If this is a Mortgage on a condominium or a planned unit development, Mortgagor
shall perform all of Mortgagor's obligations under the declaration or covenants
creating or governing the condominium or planned unit development, and
constituent documents. If a condominium or planned unit development rider is
executed by Mortgagor and recorded together with this Mortgage, the covenants
and agreements of such rider shall be incorporated into and shall amend and
supplement the covenants and agreements of this Mortgage as if the rider were a
part hereof.
4.02 NOTICES. Any notice, election, or other communication required or permitted
hereunder shall be in writing and shall be either: (i) delivered in person; (ii)
sent by overnight courier service; or (iii) sent by certified or registered
United States mail, return receipt requested, to the addresses for Mortgagor and
Mortgagee set forth on the first page of this Mortgage. Any notice, election, or
other communication delivered or mailed as aforesaid shall, if delivered in
person, be effective upon date of delivery, if couriered by overnight delivery
service be effective on the date of delivery and if mailed, such notice shall be
effective upon date of actual receipt. Any notice delivered to the address or
addresses set forth above to the respective party shall be deemed delivered if
delivery thereof is rejected or refused at the address provided. Each party
hereto may change its address and addressee for notice, election, and other
communication from time to time by notifying the other parties hereto of the new
address and addressee in the manner provided for giving notice herein.
4.03 SUBROGATION. To the extent of the Secured Indebtedness, Mortgagee is hereby
subrogated to the lien or liens and to the rights of the owners and holders
thereof of each and every mortgage, lien or other encumbrance on the Premises
which is paid or satisfied, in whole or in part, from the proceeds of the loan
evidenced by the Secured Indebtedness or from the proceeds of any future or
additional advances, and the liens of said mortgages or other encumbrances,
shall be and the same and each of them hereby are preserved and shall pass to
and be held by Mortgagee herein as security for the Secured Indebtedness, to the
same extent that it would have been preserved and would have been passed to and
been held by Mortgagee had it been duly and regularly assigned, transferred, set
over and delivered unto Mortgagee by separate deed of assignment,
notwithstanding the fact that the same may be satisfied and cancelled of record,
it being the intention that the same will be satisfied and cancelled of record
by the holders thereof at or about the time of the recording of this Mortgage.
4.04 GENERAL. The provisions hereof shall be binding upon and shall inure to the
benefit of Mortgagor, the heirs, executors, administrators, legal
representatives, successors and assigns (including without limitation subsequent
owners of the Premises) and shall be binding upon and inure to the benefit of
Mortgagee, its successors and assigns and any future holder of the Secured
Indebtedness hereby secured, and any successors or assigns of any future holder
of the Secured indebtedness. This Mortgage may not be changed, terminated or
modified orally or in any other manner than by an instrument in writing signed
by the party against whom enforcement is sought. The captions or headings at the
beginning of each Section hereof are for the convenience of the parties and are
not a pan of this Mortgage. In no event shall all charges in the nature of
interest charged or taken on this Mortgage or in connection with the Secured
Indebtedness exceed the maximum allowed by law and in the event such charges
cause the interest to exceed said maximum allowed by law, such interest shall be
recalculated, and such excess shall be credited to principal, it being the
intent of the parties that under no circumstances shall the Mortgagor be
required to pay any charges in the nature
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of interest in excess of the maximum rate allowable by law. In the case any one
or more of the covenants, agreements, terms, or provisions contained in this
Mortgage or in the Note shall be held or found invalid, illegal, or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms, or provisions contained herein and in the Note shall in no
way be affected, prejudiced, or disturbed thereby. This Mortgage shall be
governed and construed by the laws of the State of Florida. No act of Mortgagee
shall be construed as an election to proceed under any one provision of the
Mortgage or of the applicable statutes of the State of Florida to the exclusion
of any other such provision, anything herein otherwise to the contrary
notwithstanding. Time is of the essence of this Mortgage. No waiver of any
covenant herein or in the obligations secured hereby shall at any time hereafter
be held to be a waiver of any of the other terms hereof or of the Secured
Indebtedness secured hereby, or future waiver of the same covenant. The use of
any gender shall include all other genders. The singular shall include the
plural. Mortgagor will execute and deliver promptly to Mortgagee on demand at
any time or times hereafter, any and all further instruments reasonably acquired
by Mortgagee to carry out the provisions of this Mortgage.
4.05 ENTIRE AGREEMENT, WAIVER OF JURY TRIAL. It is understood and agreed that:
ANY CONTEMPORANEOUS OR PRIOR REPRESENTATIONS, STATEMENTS, UNDERSTANDINGS AND
AGREEMENTS, ORAL OR WRITTEN, BETWEEN MORTGAGOR AND MORTGAGEE ARE MERGED INTO
THIS MORTGAGE, WHICH ALONE FULLY AND COMPLETELY EXPRESSES THEIR AGREEMENT, AND
THAT THE SAME IS ENTERED INTO AFTER FULL INVESTIGATION, NEITHER PARTY RELYING ON
ANY STATEMENT OR REPRESENTATION MADE BY THE OTHER WHICH IS NOT EMBODIED IN THIS
MORTGAGE. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANT COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY. THIS PARAGRAPH IS A MATERIAL
INDUCEMENT FOR THE MORTGAGEE MAKING THE LOAN TO MORTGAGOR.
IN WITNESS WHEREOF, the Mortgagor, in pursuance of due and legal action of its
stockholders (or members, in case of a non-profit corporation) and Board of
Directors has executed these presents by causing its name to be signed by its
------ President, and its corporate seal to be affixed hereto the day and year
first above written.
MORTGAGOR:
Signed sealed and delivered
in the presence of: CUCOS INC., a Louisiana corporation
/s/ XXXX XXX XXXXXXXXX By: /s/ XXXXXXX X. XXXXXX, Xx. (SEAL)
Xxxx Xxx Xxxxxxxxx Xxxxxxx X. Xxxxxx, Xx.
[Type/Print Name of Witness] Its President
/s/ XXXXX XXXXXXXX
Xxxxx Xxxxxxxx
[Type/Print Name of Witness]
STATE OF LOUISIANA
PARISH OF JEFFERSON
The foregoing instrument was acknowledged before me this 20th day of April,
1994, by Xxxxxxx X. Xxxxxx, Xx., as President of CUCOS Inc., a Louisiana
corporation, on behalf of the said corporation.
/s/ XXXXXXXXXXX X. XXXXX, XX.
SIGNATURE OF NOTARY PUBLIC
STATE OF LOUISIANA
PRINT, TYPE OR STAMP COMMISSIONED
NAME OF NOTARY PUBLIC:
/s/ XXXXXXXXXXX X. XXXXX, XX.
Personally Known [X] OR
Produced Identification [ ]
Type of Identification Produced:
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EXHIBIT "A"
Permitted Exceptions to Title
1. Real Estate Taxes for the year 1994 and subsequent years, which are not yet
due and payable.
2. Subject to Grant of Easement recorded in O.R. Book 1865, at Page 819, of the
Public Records of Escambia County, Florida.
Mortgagee hereby permits Mortgagor to place liens upon the Premises,
subordinate to the lien of this mortgage, so long as the indebtedness secured by
said subordinate liens does not exceed $150,000.00.
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