Exhibit 10.19
This Instrument Prepared By and Return To:
Xxxxxxxx X. Xxxxxxxx, Esq.
Xxxx & Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $962.50 AND FLORIDA INTANGIBLE
PERSONAL PROPERTY TAXES IN THE AMOUNT OF $550.00 HAVE BEEN PAID, UPON THE
RECORDATION OF THIS INSTRUMENT IN THE PUBLIC RECORDS OF MONROE COUNTY, FLORIDA,
ON A TAXABLE BASE OF $275,000.00, WHICH, PURSUANT TO THE TERMS HEREOF, IS THE
MAXIMUM PRINCIPAL AMOUNT THAT MAY BE RECOVERED HEREUNDER.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made this 3__ day of
April, 2003, by and among XXXXXXX X. XXXX-XXXXXXXX ("SCH"), XXX X. XXXX-XXXXXXXX
("ACH" together with SCH, each a "Mortgagor" and collectively, "Mortgagors"),
each with a mailing address of 000 Xxxxx 000, Xxxxx Xxxxx, Xxx Xxxx, 00000, in
favor of IIG EQUITY OPPORTUNITIES FUND LTD. ("Mortgagee"), with a mailing
address of 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, Frontline Communications Corporation and Proyecciones y Ventas
Organizadas, S.A. de C.V. (collectively, "Borrowers") have entered into that
certain Term Loan and Security Agreement dated as of the date hereof ("Loan
Agreement") with Mortgagee, pursuant to which Borrowers borrowed from Mortgagee
and agreed to repay to Mortgagee the principal sum of TWO HUNDRED SEVENTY FIVE
THOUSAND AND 00/100 DOLLARS ($275,000.00), together with interest thereon and
other costs, expenses and charges as provided therein.
WHEREAS, pursuant to (i) that certain Limited Guaranty dated as of the date
hereof made by SCH in favor of Mortgagee (the "SCH Guaranty") and (ii) that
certain limited Guaranty dated as of the date hereof made by ACH in favor of
Mortgagee (the "ACH Guaranty", together with SCH Guaranty, collectively, the
"Guaranty"), each Mortgagor agreed to guarantee the repayment of the obligations
and indebtedness of Borrowers under the Loan Agreement pursuant to the terms of
the Guaranty.
WHEREAS, as a condition to Mortgagee's agreement to provide financial
accommodations to Borrowers, Mortgagee has requested that each Mortgagor execute
and
deliver, and each Mortgagor has agreed to execute and deliver this Mortgage
for the benefit of Mortgagee.
NOW, THEREFORE, to secure the payment of the indebtedness evidenced by the
Guaranty in accordance therewith and the Mortgage in accordance herewith, and
the performance and observance by Mortgagors of all other covenants and
conditions in the Guaranty and this Mortgage (collectively, the "Indebtedness"),
or executed in connection therewith, and in order to charge the properties,
interests and rights hereinafter described with such payment, performance and
observance, and for and in consideration of the sum of One and No/100 Dollar
($1.00) paid by Mortgagee to Mortgagors this date, and for other valuable
consideration, the receipt and sufficiency of which is acknowledged, each
Mortgagor does hereby grant, bargain, sell, alienate, remise, release, convey,
assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and
confirm unto Mortgagee, its successors and assigns forever:
THE MORTGAGED PROPERTY
(A) THE LAND: All the land located in Monroe County, Florida, described in
Exhibit "A" attached hereto and incorporated herein and made a part hereof
("Land"), together with all mineral, oil and gas rights appurtenant to said
Land, and all shrubbery, trees and crops now growing or hereafter grown upon
said Land.
(B) THE IMPROVEMENTS: (i) All the buildings, structures and improvements of
every nature whatsoever now or hereafter situated on said Land, and (ii) all
fixtures, machinery, appliances, equipment, furniture and personal property of
every nature whatsoever now or hereafter owned by Mortgagors and located in or
on, or attached to, and used or intended to be used in connection with or with
the operation of, said Land, buildings, structures or other improvements, or in
connection with any construction being conducted or which may be conducted
thereon, and owned by Mortgagors, and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to any of the foregoing,
and all of the right, title and interest of each Mortgagor in and to any said
personal property or fixtures, which, to the fullest extent permitted by law,
shall be conclusively deemed fixtures and a part of the real property encumbered
hereby (hereinafter called the "Improvements").
(C) EASEMENTS: All easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and all
appurtenances whatsoever, in any way belonging, relating or appertaining to any
of the mortgaged property described in Sections (A) and (B) hereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by the Mortgagors.
(D) TOGETHER WITH (i) all the estate, right, title and interest of each
Mortgagor of, in and to all judgments, insurance proceeds, awards of damages and
settlements hereafter made resulting from condemnation proceedings or the taking
of the mortgaged property described in Sections (A), (B) and (C) hereof or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the mortgaged property described in
Sections (A), (B) and (C) hereof or any part thereof, or to any rights
appurtenant thereto, and all proceeds of any sales or other dispositions of the
mortgaged property
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described in Sections (A), (B) and (C) hereof or any part thereof; and the
Mortgagee is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor, and (if it so elects) to
apply the same toward the payment of the Indebtedness and other sums secured
hereby, notwithstanding the fact that the amount owing thereon may not then be
due and payable; and (ii) all contract rights (including, without limitation,
all rights of Mortgagors in and to any and all contracts relating to management,
maintenance and security of and for said Land and the Improvements), general
intangibles, actions and rights in action, including, without limitation, all
rights to insurance proceeds and unearned premiums arising from or relating to
the mortgaged property described in Sections (A), (B) and (C) above; and (iii)
all proceeds, products, replacements, additions, substitutions, renewals and
accessions of and to the mortgaged property described in Sections (A), (B) and
(C).
(E) TOGETHER WITH all rents, income, accounts receivable and other benefits
to which the Mortgagors may now or hereafter be entitled from the mortgaged
property described in Sections (A), (B) and (C) hereof to be applied against the
Indebtedness and other sums secured hereby; provided, however, that permission
is hereby given to the Mortgagors, so long as no Event of Default has occurred
hereunder, to collect and use said rents, income, accounts receivable and other
benefits as they become due and payable, but not in advance thereof. Upon the
occurrence of any such Event of Default, the permission hereby given to the
Mortgagors to collect said rents, income, accounts receivable and other benefits
from the mortgaged property described in Sections (A), (B) and (C) hereof shall
terminate and such permission shall not be reinstated upon a cure of such Event
of Default without the Mortgagee's specific written consent.
The foregoing provisions hereof shall constitute an absolute and present
assignment of the rents, income, accounts receivable and other benefits from the
mortgaged property described in (A), (B) and (C) above, subject, however, to the
conditional permission given to the Mortgagor to collect and use such rents,
income, accounts receivable and other benefits as hereinabove provided; and the
existence or exercise of such right of the Mortgagors shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by the Mortgagors, and any such subsequent assignment by the Mortgagors shall be
subject to the rights of the Mortgagee hereunder.
(F) TOGETHER WITH (i) all right, title and interest of each Mortgagor in
and to any and all contracts for sale and purchase of all or any part of the
property described in paragraphs (A), (B) and (C) hereof, and any down payments,
xxxxxxx money deposits or other sums paid or deposited in connection therewith;
and (ii) all right, title and interest of each Mortgagor in and to any and all
leases now or hereafter on or affecting the mortgaged property described in
Sections (A), (B) and (C) hereof, together with all security therefor and all
monies payable thereunder, including, without limitation, tenant security
deposits, and all books and records which contain information pertaining to
payments made under the leases and security therefor, subject, however, to the
conditional permission hereinabove given to the Mortgagors to collect the rents,
income and other benefits arising under any such lease. The Mortgagee shall have
the right, at any time and from time to time, to notify any lessee of the rights
of the Mortgagee as provided by this Section.
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(G) TOGETHER WITH (i) each Mortgagor's rights further to encumber the
mortgaged property described in Sections (A), (B) and (C) above for debt and
(ii) all of the Mortgagors' rights to enter into any lease or lease agreement.
All of the mortgaged property described in Sections (A), (B), (C), (D),
(E), (F) and (G) above, and each item of mortgaged property described therein,
is herein referred to as "the Property."
TO HAVE AND TO HOLD all and singular the said Property hereby conveyed,
mortgaged, pledged, assigned or granted by each Mortgagor, or intended so to be,
unto the Mortgagee.
PROVIDED HOWEVER, that, notwithstanding anything to the contrary herein,
the maximum amount that may be recovered by Mortgagee under this Mortgage is the
principal sum of $275,000.00, plus interest on the Indebtedness, any
disbursements made for the payment of taxes, levies or insurance on the
mortgaged Property, and other charges payable hereunder.
PROVIDED FURTHER, that the foregoing limitation on recovery shall not in
any way limit the right of Mortgagee to enforce the Guaranty or the Loan
Agreement or to collect the Indebtedness.
And each Mortgagor covenants and warrants to Mortgagee that (i) such
Mortgagor has the full power and lawful right to mortgage and convey the
Property as aforesaid; (ii) no third party consents are required; (iii) such
Mortgagor is the fee owner of the Land and other property located thereon; (iv)
the Property is free from all liens and encumbrances except for those matters as
set forth in Exhibit B attached hereto and made a part hereof; and (v) such
Mortgagor hereby fully warrants and covenants to defend the title to the
Property against all claims and demands of all persons whosoever.
PROVIDED, ALWAYS, that if Mortgagors shall fully pay unto Mortgagee the
Indebtedness, and shall perform, comply with and abide by each and every of the
stipulations, agreements, conditions and covenants of said Guaranty and of this
Mortgage, then this Mortgage and the estate hereby created shall cease and be
null and void, and this Mortgage shall be released.
1. Each Mortgagor hereby warrants, covenants and agrees:
a. To pay all and singular the taxes, assessments, levies,
liabilities, obligations and encumbrances of every nature, and kind on said
described Property each and everyone, when due and payable, according to law,
before they became delinquent and before any interest attaches or penalty is
incurred, and if the same be not promptly paid, the Mortgagee may at any time
pay the same without waiving or affecting the option to foreclose or any other
right hereunder; and every payment so made shall be due from the Mortgagors on
demand and shall bear interest from the date of payment at the maximum rate of
interest allowable by law, and all said costs, charges and expenses so incurred
or paid, together with interest, shall be secured by the lien of this Mortgage.
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Mortgagors shall pay these obligations in accordance with the
provisions of this paragraph directly to the person or entity owed payment.
Mortgagors shall promptly furnish to Mortgagee all notices of amounts to be paid
under this paragraph. If Mortgagors make these payments directly, Mortgagors
shall promptly furnish to Mortgagee receipts evidencing the payments.
Each Mortgagor agrees to comply with any covenants, declarations,
conditions, stipulations, easements, and reservations of record which shall
include, but not be limited to, the payment of all taxes, assessments and/or
levies, regular or special, and if the same be not promptly paid, the Mortgagee
may at any time pay same without waiving or affecting the option to foreclose or
any right hereunder pay the same, and every payment so made shall be due from
the Mortgagors on demand and shall bear interest from the date of payment at the
maximum rate of interest allowable by law and shall be secured by lien of the
Mortgage.
b. To pay all and singular costs, charges and expenses, including
attorneys' and paralegals' fees and abstracting costs, reasonably incurred or
paid at any time by the Mortgagee because of the failure on the part of any
Mortgagor to perform comply with and abide by each and every of the
stipulations, agreements, conditions and covenants of said Guaranty and this
Mortgage, or any of them, and to pay such reasonable attorneys' and paralegals'
fees, cost and expenses as may be incurred by Mortgagee in connection with any
proceeding or proposal for acquisition for public use of all or any part of the
Property encumbered by this Mortgage by condemnation or otherwise, and every
such payment shall be due from the Mortgagors on demand and shall bear interest
from the date of payment at the maximum rate of interest allowable by law, and
all said costs, charges and expenses so incurred or paid, together with
interest, shall be secured by the lien of this Mortgage.
c. Mortgagors shall keep the improvements now existing or hereafter
erected on the Property insured against loss by fire, hazards included within
the term "extended coverage" and any other hazards for which Mortgagee requires
insurance. This insurance shall be maintained in the amounts and for the periods
that Mortgagee requires. The insurance carrier providing the insurance shall be
chosen by Mortgagors subject to Mortgagee's approval which shall not be
reasonably withheld.
All insurance policies and renewals shall be acceptable to
Mortgagee and shall include a standard mortgage clause and shall provide that
they may not be terminated for any reason, including the non-payment of premiums
without providing Mortgagee with at least ten (10) days' prior written notice at
Mortgagee's address specified herein above. Mortgagee shall have the right to
hold the policies and renewals. If Mortgagee requires, Mortgagors shall promptly
give to Mortgagee all receipts of paid premiums and renewal notices. In the
event of loss, Mortgagors shall give prompt notice to the insurance carrier and
Mortgagee. Mortgagee may make proof of loss if not made promptly by Mortgagors.
Unless Mortgagee and Mortgagors otherwise agree in writing,
insurance proceeds may be applied to restoration or repair of the Property
damaged, if the restoration or repair is economically feasible and Mortgagee's
security is not lessened. If the restoration or repair is not economically
feasible or Mortgagee's security would be lessened, the insurance proceeds shall
be applied to the sums secured by this Mortgage, whether or not then due, with
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any excess paid to Mortgagors. If Mortgagors abandon the Property, or do not
answer within 30 days a notice from Mortgagee that the insurance carrier has
offered to settle a claim, then Mortgagee may collect the insurance proceeds.
Mortgagee may use the proceeds to repair or restore the Property or to pay sums
secured by this Mortgage, whether or not then due. The 30-day period will begin
when the notice is given.
If the Property is acquired by Mortgagee through foreclosure or
otherwise, Mortgagors' right to any insurance policies and proceeds resulting
from damage to the Property prior to the acquisition shall pass to Mortgagee to
the extent of the sums secured by this Mortgage immediately prior to the
acquisition.
d. To keep the Property at all times in good order and repair, except
for normal wear and tear and to permit, commit or suffer no waste, impairment or
deterioration of said Property or any part thereof.
e. To perform, comply with and abide by all applicable laws,
stipulations, agreements, conditions and covenants in the Guaranty and this
Mortgage.
f. That in order to accelerate the maturity of the Indebtedness
because of the failure of the Mortgagors to pay any tax, assessment, liability,
obligation or encumbrance upon said Property, as herein provided, it shall not
be necessary nor requisite that the Mortgagee shall first pay the same.
2. Any default by any Mortgagor under its Guaranty or any default under the
Loan Agreement shall, at the option of Mortgagee or any subsequent holder or
holders of the Guaranty or the Loan Agreement, be deemed a default under the
Guaranty, and under this Mortgage. Any default by any Mortgagor on any superior
or inferior mortgages, liens or encumbrances on the Property shall, at the
option of the Mortgagee be deemed a default under the Guaranty, the Loan
Agreement and this Mortgage.
3. Each Mortgagor hereby assigns to the Mortgagee the rents, issues and
profits of the premises, and each Mortgagor grants to the Mortgagee the right to
enter upon and take possession of the mortgaged Property for the purpose of
collecting the same and to let the premises or any part thereof, and to apply
the rents, issues and profits, after payment of all necessary charges and
expenses, on account of said indebtedness. This assignment and grant shall
continue in effect until this Mortgage is paid. Until a default by the
Mortgagors, the Mortgagee hereby waives the right to enter upon and take
possession of the mortgaged Property for the purpose of collecting said rents,
issues and profits, and the Mortgagors shall be entitled to collect and receive
said rents, issues and profits until default under any of the covenants,
conditions or agreements contained in this Mortgage and agrees to use such
rents, issues and profits in payment of principal and interest becoming due on
this Mortgage and in payment of taxes, assessments, sewer rents, water rates and
carrying charges becoming due against said premises, but such right of the
Mortgagors may be revoked by the Mortgagee upon any default. The Mortgagors will
not, without the written consent of the Mortgagee, receive or collect rent from
any tenant of the mortgaged Property or any part thereof for a period of more
than one month in advance, and in the event of any default under this Mortgage
will pay monthly in advance to the Mortgagee, or to any receiver appointed to
collect said rents, issues and profits,
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the fair and reasonable rental value for the use and occupation of the mortgaged
Property or of such part thereof as may be in the possession of the Mortgagors,
and upon default in any such payment will vacate and surrender the possession of
the mortgaged Property to the Mortgagee or to such receiver, and in default
thereof may be evicted by summary proceedings.
4. In the event there shall be filed a complaint to foreclose this
Mortgage, or any other suit upon this Mortgage, Mortgagee shall immediately and
without notice be entitled to the appointment of a receiver for the Property and
the rents, earnings, issues, income and profits thereof, with the usual power of
receivers in such cases, and such receiver may be continued in possession of
said Property and of said rents, earnings, issues, income and profits of said
Property during the pendency of such suit or foreclosure suit, and Mortgagors
hereby specifically waive the right to object to such appointments and consents
that such appointment shall be made as an admitted equity and as a matter of
absolute right to Mortgagee, and without reference to the adequacy or inadequacy
of the value of the Property or to the solvency or insolvency of Mortgagors or
any other party defendant to such suit and that such rents, earnings, issues,
income and profits shall be applied by such receiver according to the lien of
the Mortgagee.
5. In the event the ownership of the Property, or any part thereof, becomes
vested in a person other than Mortgagors, Mortgagee may without notice to
Mortgagors, deal with such successor in interest with reference to this Mortgage
and the debt hereby secured, in the same manner as with Mortgagors, without any
way vitiating or discharging Mortgagor's liability hereunder or upon the debt
hereby secured. No sale or other conveyance of the Property hereby mortgaged and
no forbearance on the part of Mortgagee, and no extension of the time for the
payment of the debt hereby secured given by Mortgagee shall operate to release,
discharge, modify, change or affect the original liability of Mortgagors herein,
either in whole or in part, and shall not be a waiver of Mortgagee's right to
accelerate the aggregate sum secured by this Mortgage.
6. Notwithstanding the foregoing, each Mortgagor acknowledges that
ownership of Property by such Mortgagor is of a material nature to the
transaction. Therefore, the undersigned agrees that in the event of any transfer
of all or any part of the Property, or any interest therein, or the placing of
any additional financing secured by a mortgage, lien or other encumbrance on the
Property or any part thereof, without the written consent of Mortgagee shall
permit Mortgagee at its option to declare the entire unpaid principal balance
under the Guaranty and the Loan Agreement, together with accrued interest
immediately due and payable by Mortgagors, and shall constitute a default under
this Mortgage.
7. The lien of this Mortgage secures and shall continue to secure payment
of the Indebtedness to Mortgagee, however evidenced, whether by the Guaranty or
any renewal or extension thereof or substitute thereof, or otherwise, until all
such Indebtedness has been fully paid.
8. Mortgagee shall have the right to enforce the lien of this Mortgage
against any or all of the Property and to cause any or all of said mortgaged
Property to be sold for payment and satisfaction of any decree of foreclosure
without any right of Mortgagors or those claiming under Mortgagors to any
marshalling of liens, exonerations of security or other similar rights or
remedies.
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9. In the event damages are awarded for the taking of, or injury to, the
Property under the power of eminent domain or otherwise, all such damages shall
be paid to and received by Mortgagee to be applied as a payment upon such part
of the Indebtedness, as Mortgagee may elect, without affecting the amount of or
time for payment of, any other installments required hereunder, whether or not
such Indebtedness to which such damages may be applied is then due and payable.
10. If any action, or proceeding, shall be commenced by any person other
than the holder of this Mortgage (except an action to foreclose this Mortgage,
or to collect the debt secured thereby) to which action, or proceeding, the
holder of this Mortgage is made a party, or in which it shall become necessary
to defend, or uphold the lien of this Mortgage, all sums paid by the holder of
this Mortgage for the expense of any litigation to prosecute to defend the
rights and liens created by this Mortgage (including reasonable attorney's fees
and costs at trial and appellate levels), shall be paid by Mortgagors on demand,
together with interest thereon, at the maximum rate of interest allowable by
Florida law, and any such sum together with the interest thereon, shall be
secured by the lien of this Mortgage.
11. If all or any part of the Property or an interest therein is sold,
conveyed or otherwise transferred by Mortgagors without Mortgagee's prior
written consent, or further mortgaged or pledged as security for any other loans
obtained by Mortgagors, such action shall constitute a default under this
Mortgage and, at Mortgagee's option, Mortgagee may declare all the sums secured
by this Mortgage to be immediately due and payable.
12. In the event any person, partnership, corporation or other entity
owning an interest in the Property is adjudicated as bankrupt, insolvent, or
shall make an assignment for the benefit of creditors, or shall take, or
receive, the benefit of any act for reorganization, or if a receiver should be
appointed for such owner, or in the event a petition is filed against any
Mortgagor or the Property and not dismissed within 60 days, Mortgagee may at its
option, declare the principal balance of the Guaranty and the Loan Agreement
then outstanding to be due and payable by Mortgagors immediately; and upon such
declaration, the said principal so declared to be due and payable, together with
the interest accrued thereon and together with any other sums secured hereby
shall become due and payable immediately, anything in this Mortgage or in said
Guaranty and the Loan Agreement to the contrary notwithstanding. In the event a
petition under United States Bankruptcy Code ("Code") is filed against any
Mortgagor and/or the Property which is not dismissed within sixty (60) days, or
in the event any Mortgagor filed a petition under the Code, Mortgagee may, at
its option declare the principal balance of the Guaranty and the Loan Agreement
then outstanding to be due and payable by Mortgagors immediately and each
Mortgagor hereby consents to and shall stipulate to any action by the Mortgagee
to obtain a relief from any automatic stay and/or injunction in effect so that
Mortgagee can proceed with a foreclosure action in a Florida court with respect
to the Property.
13. Time is of the essence in all matters herein.
14. Forbearance in exercising any other right or remedy hereunder, or
otherwise afforded by applicable law, at any time, shall not be taken to be a
waiver of the terms of the Guaranty, the Loan Agreement or this Mortgage or be a
waiver of or preclude the exercise of any
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such right or remedy, and the acceptance of payment upon said Indebtedness shall
not constitute a waiver of the option of Mortgagee to accelerate the
Indebtedness as provided for herein.
15. The whole of the principal sum secured hereunder and interest accrued
thereon shall become due, at the option of Mortgagee, immediately upon the
happening of any one of the following events (each an "Event of Default"):
a. After default in the payment of any installment of principal,
interest or any other payment required to be made under the Guaranty, the Loan
Agreement and this Mortgage beyond applicable grace period;
b. After default in any other terms, conditions or covenants of the
Guaranty and the Loan Agreement or this Mortgage which default continues for
thirty (30) days after written notice thereof, and Mortgagors are not making a
good faith effort to cure such default;
c. Any filing for record of a notice pursuant to Florida Statutes
Section 697.04 limiting the maximum principal amount which may be secured by
this Mortgage.
16. Unless paid in accordance with Paragraph 1.a. herein, Mortgagors shall
provide Mortgagee with evidence of payment of real estate taxes prior to the
time same become delinquent.
17. Upon the request of Mortgagee, Mortgagors shall provide Mortgagee with
evidence of payment of insurance premiums as same become due.
18. Should Mortgagors fail to make payment of any taxes, assessments or
public charges before they become delinquent, or before any interest or penalty
shall attach, or if any insurance premiums or other charges payable by
Mortgagors, or should Mortgagors fail to make payment of any principal or
interest secured by any mortgagor or lien prior to the lien of this Mortgage
before the same become delinquent, then Mortgagee may make payments of the same,
and also may redeem said premises from tax sale without any obligation to
inquire into the validity of such taxes, assessments and tax sales (the receipts
of the proper officers being conclusive evidence of the validity and amount
thereof). In case of such payments by Mortgagee, Mortgagors agree to reimburse
Mortgagee on demand, and the amounts so paid, with interest thereon at the
maximum rate per annum allowable by law shall be added to and become part of the
debt secured by these presents without waiver of any right arising from breach
of any of the covenants, and for such payments, with interest as aforesaid, the
premises hereinbefore described, as well as Mortgagors, shall be bound to the
same extent that they are bound for the payment of the Guaranty herein
described.
19. Should Mortgagee at any time request in writing that Mortgagors confirm
the amount of the Indebtedness for principal and interest secured by this
Mortgage and the validity of the lien hereof, Mortgagors covenant and agree to
give such written request, or within said period of time to advise Mortgagee in
writing of any dispute as to the amount of the Indebtedness or the validity of
this Mortgage, or the lien thereof.
20. Without affecting the liability of Mortgagors or any other person
(except any person expressly released in writing) for payment of any
Indebtedness or for performance of any
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obligation contained herein, and without affecting the rights of Mortgagee with
respect to any security not expressly released in writing, the Mortgagee may, at
any time and from time to time, either before or after the maturity of said
Guaranty and the Loan Agreement and without notice and consent:
a. Release any person liable for payment of all or any part of the
Indebtedness or for performance of any obligation.
b. Make any agreement extending the time or otherwise altering the
terms of payment of all or part of the Indebtedness or modify or waiving any
obligation or subordinating, modifying or otherwise dealing with the loan or
charge hereof.
c. Exercise or refrain from exercise or waive any right which
Mortgagee may have.
d. Accept additional security of any kind.
e. Release or otherwise deal with any property, real or personal,
securing the Indebtedness, including all or any part of the property mortgaged
hereby.
21. It is agreed that if any of the property herein mortgaged is of a
nature so that a security interest can be perfected under the Uniform Commercial
Code, as in effect from time to time in the State of Florida (the "UCC"), this
instrument shall constitute a security agreement and Mortgagors authorize
Mortgagee to file any financing statements and to execute any other instruments
that may be required for the perfection or renewal of such security interest
under the UCC. A satisfaction of this Mortgage, when recorded, shall constitute
a satisfaction of any financing statement filed in connection with this
instrument, or renewal thereof.
22. That in the event that the Guaranty or the Loan Agreement, or both, are
placed in the hands of an attorney for collection, or in case Mortgagee shall
become a party either as plaintiff or as a defendant in any law suit or legal
proceeding in relation to the Property described or the lien created herein, or
for the recovery or protection of said Indebtedness, Mortgagors will repay on
demand all cost and expenses arising therefrom, including reasonable attorney's
fees and costs (whether incurred on appeal or in any bankruptcy or
administrative proceeding or otherwise), with interest thereon at the maximum
rate allowable by Florida law until paid, all of which sums, if unpaid, shall be
added to and become a part of the debt secured by these presents.
23. It is further covenanted that Mortgagee may (but shall not be obligated
to) advance monies that should have been paid by Mortgagors hereunder in order
to protect the lien or security hereof, and Mortgagors agree without demand
forthwith to repay such monies, which amount shall bear interest from the date
so advanced until paid, at the maximum rate allowed by Florida law, and shall be
considered as additional Indebtedness; but no payment by Mortgagee of any such
monies shall be deemed a waiver of Mortgagee's right to declare the principal
sum due hereunder by reason of the default or violation of Mortgagors in any of
its covenants hereunder.
24. If a foreclosure proceeding of any prior or subordinate lien or
mortgage should be instituted, the Mortgagee may, at its option immediately or
thereafter, declare this Mortgage and
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the Indebtedness due and payable forthwith and may, at its option, proceed to
foreclose this Mortgage.
25. Each Mortgagor represents and warrants that:
a. no asbestos, substance containing asbestos, or any other substance
deemed hazardous by federal, state or local laws, rules, regulations or orders
respecting such materials has been installed or constructed upon or in the
improvements comprising a part of the Property, and such Mortgagor has not and
will not install or permit to be installed in, on or about the improvements
comprising a part of the Property, any such asbestos, substance containing
asbestos or other hazardous substance; and
b. the Property is free from all hazardous or toxic wastes and
underground storage tanks.
Each Mortgagor shall comply with all federal, state and local laws,
regulations or orders with respect to the discharge and removal of hazardous or
toxic wastes and shall keep the Property free from all hazardous or toxic wastes
and shall keep the Property free of and from any lien imposed against the
Property pursuant to such laws, regulations and orders. No Mortgagor shall
knowingly install or knowingly permit to be installed on the Property any
underground storage tank or any substance deemed hazardous or toxic waste by
federal, state or local laws, regulations, orders and ordinances.
Mortgagors hereby agree to indemnify and hold Mortgagee and any wholly
owned subsidiary of Mortgagee harmless from any and all loss, liability, damage,
cost or expense (including, without limitation, attorneys' and paralegals' fees,
including, without limitation, such fees as may be incurred in litigation,
mediation, arbitration and bankruptcy and administrative proceedings, and
appeals therefrom) incurred by or imposed upon Mortgagee or any such subsidiary
at any time or, occasioned by, resulting from or consequent to any such toxic or
hazardous wastes, waste products or substances at the Property or releases or
discharges thereof from the Property or the manufacturing, maintaining, holding,
handling, transporting, spilling, leaking or dumping of toxic or hazardous
wastes, waste products or substances on the Property at any time. The aforesaid
indemnification and hold harmless agreement shall benefit Mortgagee from the
date hereof and shall continue notwithstanding payment, release or discharge of
this Mortgage or the indebtedness secured hereby, and, without limiting the
generality of the foregoing such obligations shall continue for the benefit of
Mortgagee and any wholly owned subsidiary of Mortgagee during and following any
possession of the Property thereby or any ownership of the Property thereby,
whether arising by foreclosure or deed in lieu of foreclosure or otherwise, such
indemnification and hold harmless agreement to continue forever, excepting out
from such indemnification any loss, liability, damages, cost or expense arising
out of the control of, or acts upon, the Property by Mortgagee subsequent to the
date Mortgagee takes title to the Property.
26. Mortgagors hereby acknowledge that consideration has been given and
waives any argument that the Mortgage was given without consideration.
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27. WAIVER OF JURY TRIAL. NEITHER MORTGAGORS NOR MORTGAGEE NOR ANY
ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF EITHER SHALL SEEK A JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS MORTGAGE, ANY RELATED AGREEMENT OR
INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS EVIDENCED HEREBY OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG MORTGAGORS AND MORTGAGEE, OR ANY
OF THEM. NEITHER MORTGAGORS NOR MORTGAGEE WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY MORTGAGORS AND MORTGAGEE, AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NEITHER MORTGAGORS NOR MORTGAGEE HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES.
28. This Mortgage shall be construed in accordance with the laws of the
State of Florida. The venue of any litigation arising out of this Mortgage,
including appellate proceedings, shall lie in Monroe County, Florida.
29. The terms "Mortgagor" and "Mortgagee" whenever used in this instrument
shall include the heirs, personal representatives, successors and permitted
assigns of the respective parties hereto. Whenever used, the singular number
shall include the plural and the singular, and the use of any gender shall
include all gender.
30. The unenforceability or invalidity of any provision or provisions of
this Mortgage as to any persons or circumstances shall not render that provision
or those provisions unenforceable or invalid as to any other persons or
circumstances, and all provisions hereof, in all other respects, shall remain
valid and enforceable.
31. This Mortgage is given to secure not only existing indebtedness, but
also such future advances, whether such advances are obligatory or are to be
made at the option of Mortgagee, or otherwise, as are made within twenty years
from the date hereof, to the same extent as if such future advances were made on
the date of the execution of this Mortgage. The total amount of indebtedness
that may be so secured may decrease or increase from time to time, but the total
unpaid balance so secured at one time shall not exceed $275,000.00 plus interest
on the Indebtedness, and any disbursements made for the payment of taxes, levies
or insurance on the mortgaged Property, plus interest thereon.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
first above written.
Witnesses: MORTGAGORS:
/s/
------------------------ ----------------------------------
(Signature) XXXXXXX X. XXXX-XXXXXXXX
------------------------
(Printed Name)
------------------------
(Signature)
------------------------
(Printed Name)
Witnesses:
/s/
------------------------ ----------------------------------
(Signature) XXX X. XXXX-XXXXXXXX
------------------------
(Printed Name)
------------------------
(Signature)
------------------------
(Printed Name)
13
STATE OF ____________________
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this _______ day of
April, 2003, by XXXXXXX X. XXXX-XXXXXXXX and XXX X. XXXX-XXXXXXXX, who are
personally known to me or have produced ______________________________ (type of
identification) as identification.
My Commission Expires:
-------------------------
Notary Public (Signature)
(AFFIX NOTARY SEAL)
-------------------------
(Printed Name)
-------------------------
(Title or Rank)
-------------------------
(Serial Number, if any)
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EXHIBIT "A"
(the Property)
A-1
EXHIBIT "B"
(Permitted Encumbrances)
B-1
