EXHIBIT 9
THIS INSTRUMENT
PREPARED BY:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ESQ.
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE DEED
AND SECURITY AGREEMENT
THIS MORTGAGE DEED, executed this 29th day of January, 2003, by and
between ORIOLE AT STONECREST, INC., A FLORIDA CORPORATION, hereinafter called
the MORTGAGOR, which term as used in every instance shall include the
Mortgagor's heirs, executors, administrators, successors, legal representatives
and assigns, either voluntary by act of the parties, or involuntary by operation
of law, and shall denote the singular and/or plural, and the masculine and/or
feminine and natural and/or artificial persons, whenever and wherever the
context so requires or admits, party of the first part, in favor of OCEAN BANK,
a state banking corporation, its successors and assigns, hereinafter called the
BANK,
WITNESSETH, that for divers good and valuable considerations, and to
secure the payment of that certain promissory note in the amount of ONE MILLION
FIVE HUNDRED SEVENTY THREE THOUSAND AND NO/100 DOLLARS ($1,573,000.00), executed
by the MORTGAGOR and ORIOLE HOMES CORP., a Florida corporation, hereinafter
collectively referred to as BORROWER, as the context so requires, in favor of
the BANK (the term PROMISSORY NOTE as hereafter used shall denote the singular,
if one Note, or the plural, if more than one Note is secured by this Mortgage),
together with interest thereon and all other sums of money secured hereby as
hereinafter provided, the MORTGAGOR does grant, bargain, sell, alien, remise,
release, convey, and confirm unto the BANK in fee simple, the following
described real estate, of which the MORTGAGOR is now seized and possessed, and
in actual possession, situate in the County of ▇▇▇▇▇▇, State of Florida, to-wit:
---SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF---
THIS IS AN OPEN FIRST MORTGAGE IN THE TOTAL AMOUNT OF $1,573,000.00
GIVEN TO SECURE ANY PRESENT OR FUTURE OBLIGATIONS OF BORROWER.
TOGETHER with all structures and improvements now and hereafter on said
land, and the fixtures attached thereto; and the easements, riparian and
littoral rights and appurtenances thereunto belonging, or in any wise
appertaining; and all rents, issues, proceeds and profits accruing and to accrue
from said premises; and all gas and electric fixtures, heaters, air conditioning
equipment, machinery, boilers, ranges, elevators and motors, plumbing fixtures
and hardware, window screens, screen doors, venetian blinds, storm shutters and
awnings, pool pumps and motors and all other heating, cooking, refrigerating,
plumbing, cooling, ventilating, irrigating and power systems and appliances
which are now or may hereafter pertain to or be used with, in or on said
premises though they may be either detached or detachable.
TOGETHER with all furniture, furnishings, fixtures, and equipment
contained in or appurtenant to said premises, or which may hereafter from time
to time be placed therein, and any substitution or replacement thereof.
TO HAVE AND TO HOLD the same, together with the tenements,
hereditaments, and appurtenances, unto the said BANK, in fee simple.
AND THE SAID MORTGAGOR does hereby covenant with BANK that said
MORTGAGOR is indefeasibly seized with the absolute and fee simple title to said
property, and has full power and lawful authority to sell, convey, transfer and
mortgage the same; that it shall be lawful at any time hereafter for the BANK to
peaceably and quietly enter upon, hold, and occupy said property; that said
property is free and discharged from all other and prior liens, assessments,
judgements, taxes, and encumbrances; that said MORTGAGOR does hereby warrant the
title to said land and will defend the same against the lawful claims of all
persons whomsoever.
PROVIDED ALWAYS that if the BORROWER shall pay unto the BANK the sum of
money aggregating to EIGHT MILLION TWO HUNDRED TWENTY ONE THOUSAND AND NO/100
DOLLARS ($8,221,000.00, evidenced by the PROMISSORY NOTE hereinbefore referred
to, as well as any renewals, modifications and extensions thereof, together with
all sums secured hereby and shall pay all other sums provided to be paid by this
Mortgage, and shall perform, comply with and abide by all the stipulations,
agreements, conditions and covenants of said PROMISSORY NOTE, of this Mortgage,
and of all the related loan documents delivered to the BANK in connection with
the loan secured hereby (collectively the "Loan Documents"), the estate hereby
created shall cease and be null and void.
AND THE MORTGAGOR AND/OR BORROWER DO HEREBY FURTHER COVENANT AND AGREE
AS FOLLOWS:
1) BORROWER shall promptly pay when due, the principal and interest on the
indebtedness evidenced by the PROMISSORY NOTE, the principal and interest
on any Future Advances secured by this Mortgage, late charges if provided
in the PROMISSORY NOTE and any other amounts due to the BANK by reason of
any payment made in order to protect the BANK'S interest under the
PROMISSORY NOTE and this Mortgage.
2) To pay all and singular the taxes, insurance, assessments, levies,
liabilities, obligations, and encumbrances of every nature on said
described property, each and every one when due and payable according to
law, before they become delinquent and if the same shall not be promptly
paid, the BANK, at its option and without obligation to do so, may pay the
same without waiving or affecting the option to foreclose, or any rights
hereunder and every payment so made shall bear interest from the date
thereof at the maximum default rate as provided in the PROMISSORY NOTE
secured hereby. The MORTGAGOR shall deliver to the BANK receipts evidencing
the payment of said taxes, assessments, levies, etc., immediately upon the
payment thereof as required under this Paragraph. Any such amounts paid by
the BANK pursuant to this paragraph shall be secured by this mortgage.
3) To keep the buildings now or hereafter on said land and the fixtures and
personal property therein contained insured with a company or companies
approved by the BANK, against loss by fire, windstorm, and such other
casualties, for such period and for not less that such amount as BANK may
require, but in no event less that the outstanding principal sum of the
PROMISSORY NOTE or the full insurable value of the improvements, and to pay
promptly when due all premiums for such insurance. MORTGAGOR agrees to
deliver renewal or replacement policies of any nature or replacement
certificates of insurance to the BANK, at least ten (10) days prior to the
expiration or anniversary date of the existing policies. The amounts of
insurance required by the BANK shall be the minimum amounts for which said
insurance shall be written and it shall be incumbent upon the MORTGAGOR to
2
maintain such additional insurances as may be necessary to meet and comply
fully with all co-insurance requirements contained in said policies to the
end that MORTGAGOR is not a co-insuror thereunder.
The policy or policies shall be held by and be payable to said BANK, and
the BANK shall have the option, if destruction is over 50% of the value of
the improvements, excluding the land, to receive and apply said payment on
account of the indebtedness hereby secured rather than to permit the
MORTGAGOR to receive or use it, or any part thereof, for any purposes
without thereby waiving or impairing the equity, lien or right under and by
virtue of this Mortgage, and may place and pay such insurance or any part
thereof without waiving or affecting the option to foreclose or any right
hereunder, and each such payment shall bear interest at the maximum default
rate as provided in the PROMISSORY NOTE secured hereby.
4) To permit, commit, or suffer no waste, impairment, abandonment, or
deterioration of said property, or any part thereof, and upon the failure
of the MORTGAGOR to keep the buildings and/or the personal property located
on the mortgaged premises in good condition or repair, the BANK may demand
the immediate repair of said property, or the immediate repayment of the
debt hereby secured, and the failure of the MORTGAGOR to comply with said
demand of the BANK for a period of thirty (30) days, shall constitute a
default of this Mortgage, and at the option of the BANK, it may immediately
mature the entire amount of principal and interest hereby secured, and the
BANK, immediately and without notice, may institute proceedings to
foreclose this Mortgage and apply for the appointment of a receiver, as
hereinafter provided.
5) To perform, comply with and abide by all the stipulations, agreements,
conditions, and covenants set forth in the PROMISSORY NOTE secured hereby
and this Mortgage.
6) To pay all and singular the costs, fees, charges, and expenses of every
kind, including the cost of an abstract of title to said lands found to be
necessary or expedient in connection with any suit for the foreclosure of
this Mortgage, and also including, whether the BANK is obligated to pay
same or not, reasonable attorney's fees incurred or expended at any time by
the BANK because of the failure of the MORTGAGOR to perform, comply with,
and abide by all or any of the covenants, conditions, and stipulations of
said PROMISSORY NOTE, or this Mortgage, in the foreclosure of this
Mortgage, or in collecting the amount secured hereby with or without legal
proceedings, or in enforcing the terms, conditions, and covenants of this
Mortgage with or without legal proceedings, and to reimburse the BANK for
every payment made or incurred for any such purpose with interest from date
of every such payment at the maximum default rate as provided in the
PROMISSORY NOTE secured hereby; such payments and obligations, with
interest thereon as aforesaid, shall be secured by the lien hereof.
7) To comply with all federal, state, and local laws, rules and regulations,
subdivision restrictions and the municipal zoning ordinances applicable to
mortgaged property, now in effect or in the future; not to erect or permit
to be erected any new buildings on the premises herein mortgaged or to add
to or permit to be added to, make or permit to be made, any material
structural alterations to any of the existing improvements thereon without
the written consent of the BANK, and in the event of any violation or
attempt to violate these stipulations, or any of them, and THE MORTGAGOR
has not cured such violation within thirty (30) days written notice of same
from THE BANK, this Mortgage and all sums secured hereby shall immediately
become due and payable at the option of the BANK.
MORTGAGOR, BORROWER, AND BANK FURTHER AGREE TO THE FOLLOWING:
3
8) If any of the sums of money herein referred to are not promptly and fully
paid within ten (10) days written notice after the same becomes due and
payable, or if any of the other stipulations, agreements, conditions, and
covenants contained in the PROMISSORY NOTE and this Mortgage, or either,
are not fully performed, complied with and abided by after thirty (30) days
written notice, same shall be considered a default of this Mortgage and the
PROMISSORY NOTE, and the aggregate sum set forth in the PROMISSORY NOTE
then remaining unpaid, with interest accrued to that time and unpaid, and
all monies secured hereby, shall become due and payable forthwith, or
thereafter, at the option of the BANK, as fully and completely as if all
the said sums of money were originally stipulated to be paid on such day,
anything in the PROMISSORY NOTE or in this Mortgage to the contrary
notwithstanding; and thereupon or thereafter, at the option of the BANK,
without notice or demand, suit at law or in equity may be prosecuted as if
all monies secured hereby had matured prior to its institution.
9) In the event the BORROWER fails to pay any charges or obligations required
to be paid by BORROWER hereunder, within the time set forth for such
payment, the BANK shall have the right to pay such charge or obligation
without waiving or affecting the option of the BANK to consider this
mortgage in default. Every such payment so made shall bear interest at the
maximum default rate as provided in the PROMISSORY NOTE secured hereby, and
every such payment shall be deemed additional monies owed by the MORTGAGOR
AND/OR BORROWER to BANK, shall be payable on demand of the BANK therefore
and shall be secured by the lien of this Mortgage.
10) In the event of a default in any of the terms of this Mortgage and/or the
filing of a Complaint to foreclose this or any other mortgage encumbering
the within described property, the BANK shall be entitled to apply at any
time without notice, pending such foreclosure suit, to the Court having
jurisdiction thereof for the appointment of a receiver of all and singular
the mortgaged property, and of all the rents, incomes, profits, issues and
revenues thereof, from whatsoever source derived; and thereupon it is
hereby expressly covenanted and agreed that the Court shall forthwith
appoint a receiver of said mortgaged property, all and singular, and of
such rents, incomes, 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 the BANK, and without reference to the adequacy or
inadequacy of the value of the property hereby mortgaged, or to the
solvency or the insolvency of the MORTGAGOR AND/OR BORROWER, and that such
rents, profits, incomes, issues, and revenues shall be applied by such
receiver to the payment of the mortgage indebtedness, costs, and charges,
according to the order of such court.
11) Notwithstanding the provisions of paragraph 10 hereof, all of the rents,
deposits, revenues and profits arising out of the operation of the
mortgaged property are, by the terms hereof, assigned to the BANK as
further security for the payment of the indebtedness secured hereby, and no
other instrument or documents need to be executed by the MORTGAGOR to
effect such assignment. Any subsequent assignment of the rents, deposits,
revenues, and profits of the mortgaged property, or any part thereof, shall
at all times be inferior and subordinate to the assignment granted hereby
and to the rights of the MORTGAGE hereunder. This assignment shall continue
in effect until the indebtedness secured by this Mortgage is paid in full.
12) Except in the ordinary course of business and the payment to BANK of the
applicable release prices, if all or any part of the property or an
interest therein is sold, transferred, encumbered, or if there is a change
in ownership of the mortgaged premises or of any property encumbered by
this mortgage, or in the management, use and operation of the mortgaged
premises or if there is a transfer or change of ownership of the property
without BANK'S prior written consent, BANK may, at BANK'S option, declare
4
all the sums secured by this Mortgage to be immediately due and payable.
BANK shall have waived such option to accelerate if, prior to the sale,
transfer, encumbrance, or change of ownership, BANK and the person to whom
the property is to be sold, encumbered, or transferred reach agreement in
writing that the credit of such person is satisfactory to BANK and that the
interest payable on the sums secured by this Mortgage shall be at such rate
as BANK shall request.
13) In the event the ownership of the mortgaged premises, or any part thereof,
becomes vested in a person or entity other than the MORTGAGOR, the BANK
may, without notice to the MORTGAGOR, deal with such successor or
successors in interest with reference to this Mortgage and the debt hereby
secured, in the same manner as with the MORTGAGOR, without in any way
vitiating or discharging the MORTGAGOR'S liability hereunder or upon the
debt hereby secured. No sale of the premises hereby mortgaged and no
forbearance on the part of the BANK, and no extension of the time for the
payment of the debt hereby secured given by the BANK, shall operate to
release, discharge, modify, change, or affect the original liability of the
MORTGAGOR herein, either in whole or in part.
14) Time is of the essence and no waiver of any obligation hereunder, or of the
obligation secured hereby, shall at any time hereafter be held to be a
waiver of the terms hereof or of the NOTE secured hereby.
15) If foreclosure proceedings are instituted on any mortgage inferior to this
Mortgage or if any foreclosure proceeding is instituted on any lien of any
kind, the BANK may at its option immediately or thereafter declare this
Mortgage and the indebtedness secured hereby, due and payable. If there is
any mortgage superior to this Mortgage, then failure to pay said mortgage
when due and in accordance with its terms or failure to abide by the terms
at its option, may immediately or thereafter declare this Mortgage and the
indebtedness hereby secured, due, and payable. Any modification of any
mortgage superior to this Mortgage or waiver of any principal or interest
payments on any note or mortgage superior to this Mortgage, including but
not limited to the granting and acceptance of future advances pursuant
thereto, shall be deemed a breach of the terms and covenants of this
Mortgage and the BANK hereof may at its option declare this Mortgage and
the indebtedness secured hereby due and payable.
16) To the extent of the indebtedness of the MORTGAGOR to the BANK described
herein or secured hereby, the BANK 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 land described herein which is
paid and/or satisfied, in whole or in part, out of the proceeds of the loan
described herein or secured hereby, and the respective liens of said
mortgages, liens, or other encumbrances, shall be and the same and each of
them is hereby preserved and shall pass to and be held by the BANK herein
as security for the indebtedness to the BANK herein described or hereby
secured, to the same extent that it would have been preserved and could
have passed to and been held by the BANK had it been duly and regularly
assigned, transferred, set over, and delivered unto the BANK by separate
instrument of assignment, notwithstanding the fact that the same may be
satisfied and canceled of record, it being the intention of the parties
hereto that the same will be satisfied and canceled of record by the
holders thereof at or about the time of the recording of this Mortgage.
17) In order to accelerate the maturity of the indebtedness hereby secured
because of the failure of the MORTGAGOR to pay any tax assessment,
liability, obligation, or encumbrance upon said property as herein
provided, it shall not be necessary nor requisite that the BANK shall first
pay the same.
18) The mailing of a written notice of demand, addressed to the owner of record
of the mortgaged premises, directed to the said owner at the last address
actually furnished to the BANK, and mailed by United States Certified Mail,
5
Return Receipt Requested, shall be sufficient notice and demand in any case
arising under this instrument and required by the provisions hereof or by
law. Notice to BANK if required hereunder, shall be deemed properly given
when forwarded by Certified Mail, Return Receipt Requested, with sufficient
postage affixed thereto and addressed to BANK at ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇.
19) The Abstract of Title covering the mortgaged property shall belong to and
remain in the possession of the BANK during the lien of this Mortgage, and
in the event of the foreclosure of this Mortgage or other transfer of title
of the mortgaged property in extinguishment of the indebtedness secured
hereby, all right, title and interest of the MORTGAGOR in and to any such
Abstract of Title shall pass to the purchaser or grantee.
20) If the validity or lien of this Mortgage or the PROMISSORY NOTE secured
hereby be contested by litigation or otherwise, of if any action or
proceeding shall be commenced in which the BANK is made a party, the
MORTGAGOR agrees to defend BANK with the BANK'S Consent or otherwise pay to
the BANK the cost of defending same, including a reasonable attorney's fee
and attorneys' fees on appeal, together with interest at the maximum
default rate as provided in the PROMISSORY NOTE secured hereby.
21) MORTGAGOR does hereby agree to, protect, indemnify, defend and hold THE
BANK and its directors, officers, agents, employees and attorneys harmless
from and against any and all liability, loss, expense or damage of any kind
or nature, including, without limitation, any liability or loss that may
arise by reason of an incorrect legal description of the Property (Land),
and from any suits, proceedings, claims, demands or damages (including
attorneys' fees and expenses paid or incurred in connection therewith)
arising out of any event of default of MORTGAGOR in connection with THE
NOTE, this Mortgage, the other Loan Documents or the Mortgaged Property.
This indemnification shall survive the full payment and performance of the
obligations.
22) In the event that MORTGAGOR shall: (1) consent to the appointment of a
receiver, trustee, or liquidator of all or a substantial part of
MORTGAGOR'S assets, or (2) be adjudicated at bankruptcy, or admit in
writing its inability to pay its debts as they become due, or (3) make a
general assignment for the benefit of creditors, or (4) file a petition or
answer seeking reorganization or arrangement with creditors, or to take
advantage of any insolvency law, or (5) file an answer admitting the
material allegations of a petition filed against the MORTGAGOR in any
bankruptcy, reorganization or insolvency proceedings, or (6) action shall
be taken by the MORTGAGOR for the purpose of effecting any of the
foregoing, or (7) any order, judgment, or decree shall be entered upon an
application of a creditor of MORTGAGOR by a court of competent jurisdiction
approving a Petition seeking appointment of a receiver or trustee of all or
a substantial part of the MORTGAGOR'S assets and such order, judgment, or
decree shall continue unstayed and in effect for any period of thirty (30)
consecutive days, the BANK may declare the PROMISSORY NOTE hereby secured
forthwith due and payable, whereupon the principal of and the interest
accrued on the PROMISSORY NOTE and all other sums hereby secured shall
become forthwith due and payable as if all of the said sums of money were
originally stipulated to be paid on such day; and thereupon the BANK
without notice or demand may prosecute a suit at law and/or in equity as if
all monies secured hereby had matured prior to its institution.
23) The BANK may at any time, without notice to any person, grant to the
MORTGAGOR any modification of any kind or nature whatsoever, release any
person liable for payment of any indebtedness secured hereby, or allow any
change or changes, substitution or substitutions of any of the property
described in this Mortgage or any other collateral which may be held by the
BANK without in any manner affecting the liability of the MORTGAGOR, of any
endorsers, and/or guarantors of the indebtedness hereby secured or any
6
other person for the payment of said indebtedness, together with interest
and any other sums which may be due and payable to the BANK, and also
without in any manner affecting or impairing the lien of this Mortgage upon
the remainder of the property and other collateral which is not changed or
substituted; and it is also understood and agreed that the BANK may at any
time, without notice to any person, release any portion of the property
described in this Mortgage or any other collateral, or any portion of any
other collateral which may be held as security for the payment of the
indebtedness hereby secured, either with or without any consideration for
such release or releases, without in any manner affecting the liability of
the MORTGAGOR, the endorsers, and/or guarantors, and all other persons who
are or shall be liable for the payment of said indebtedness, and without
affecting, disturbing or impairing in any manner whatsoever the validity
and priority of the lien of this Mortgage or the full amount of the
indebtedness remaining unpaid, together with all interest and advances
which shall become payable, upon the entire remainder of the mortgaged
property which is unreleased, and without in any manner affecting or
impairing to any extent whatsoever any and all other collateral security
which may be held by the BANK. It is distinctly understood and agreed by
the MORTGAGOR and the BANK that any release or releases may be made by the
BANK without the consent or approval of any other person or persons
whomsoever.
24) Any agreement hereafter made by MORTGAGOR and BANK pursuant to this
Mortgage shall be superior to the rights of the holder of any intervening
lien or encumbrance.
25) In the event the premises hereby mortgaged, or any part thereof, shall be
condemned and taken under the power of eminent domain, the BANK shall have
the right to demand that all damages awarded for the taking of or damages
to said premises shall be paid to the BANK, its successors or assigns, up
to the amount then unpaid on this Mortgage, and may be applied against the
payment or payments last payable thereon.
26) The MORTGAGOR will keep adequate records and books of account in accordance
with generally accepted accounting principles and will permit the BANK, by
its agents, accountants and attorneys, to visit and inspect the premises
and examine the records and books of account of MORTGAGOR and to discuss
the affairs, finances and accounts with MORTGAGOR at such reasonable times
as may be requested by the BANK.
27) The MORTGAGOR will, at the cost of the MORTGAGOR, and without expense to
the BANK, do, execute, acknowledge, and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignments,
transfers, and assurances as the BANK shall from time to time require, for
the better assuring, conveying, assigning, transferring and confirming unto
the BANK the property and rights hereby conveyed or assigned or intended
now or hereafter so to be, or which the MORTGAGOR may be or may hereafter
become bound to convey or assign to the BANK, or for carrying out the
intention or facilitating the performance of the terms of this Mortgage
and/or any other loan documents, or for filing, registering, or recording
this Mortgage and/or any other loan documents, and, on demand, will execute
and deliver, and hereby authorizes the BANK to execute in the name of the
MORTGAGOR to the extent it may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments, to
evidence more effectively the lien hereof upon the mixed or personal
property.
28) The MORTGAGOR forthwith upon the execution and delivery of this Mortgage
and thereafter from time to time, will:
a) cause this Mortgage, and any security instrument creating a lien or
evidencing the lien hereof upon the real and/or personal property and
each instrument of further assurance to be filed, registered or
recorded in such manner and in such places as may be required by any
present or future law in order to publish notice of and to fully
7
protect the lien and interest of the BANK in the mortgaged property;
and
b) pay all filing, registration, or recording fees, and all expenses
incident to the preparation, execution, and acknowledgment of this
Mortgage, any mortgage supplemental hereto, any security instrument
with respect to the chattels, and any instrument of further assurance,
and all federal, state, county municipal stamp taxes and other taxes,
duties, imposts, assessments, and charges arising out of or in
connection with the execution and delivery of the PROMISSORY NOTE, this
Mortgage, any mortgage supplemental hereto, any security instrument
with respect to the chattels, or any instrument of further assurance.
29) The MORTGAGOR will pay, from time to time when the same shall become due,
all claims and demands of mechanics, materialmen, laborers, and others
which, if unpaid, might result in, or permit the creation of, a lien on the
mortgaged property, whether paramount or subordinate to this Mortgage, or
any part thereof, or on the revenues, rents, issues, income and profits
arising therefrom, and in general will do or cause to be done everything
necessary so that the lien of this Mortgage shall be fully preserved, at
the cost of the MORTGAGOR, without expense to the BANK.
The claims of mechanics, materialmen and/or laborers which may give rise to
mechanics' liens shall be released, discharged or bonded by MORTGAGOR with
a cash or surety bond in the amount required by law for the bonding of
mechanics' liens within thirty (30) days of the recording of the claim of
lien.
30) The MORTGAGOR shall, within five (5) days after written demand by the BANK,
execute in such form as shall be required by the BANK, an estoppel
certificate and waiver of defenses duly acknowledged, setting forth the
amount of principal and interest unpaid under the PROMISSORY NOTE and the
general status of this Mortgage.
31) This Mortgage shall constitute a security agreement under the Uniform
Commercial Code as it presently exists and may hereafter exist in the State
of Florida. The MORTGAGOR hereby gives and grants unto the BANK a security
interest in and to the furniture, fixtures, essential equipment, inventory,
licenses, permits and contract rights necessary and normally used in the
operation of the mortgaged premises. MORTGAGOR further agree to execute and
deliver to the BANK, simultaneously with the execution and delivery of this
Mortgage, or at any other time at the request of BANK, any and all Uniform
Commercial Code Financing Statements reasonably required by the BANK to
effect the purposes and intent of this paragraph.
32) If this Mortgage and the PROMISSORY NOTE secured hereby be modified,
extended, renewed, or in any other manner altered at the request of
MORTGAGOR or any other party obligated hereunder or under the PROMISSORY
NOTE secured hereby or upon agreement with the BANK, MORTGAGOR shall pay to
the BANK any and all costs of such modification, extension or renewal,
including but not limited to title review, Uniform Commercial code review,
additional cost of recording, and such attorneys' fees as may be incurred
by the BANK for such modification, extension, or renewal.
33) In the event any one or more of the provisions contained in this MORTGAGE
or in the PROMISSORY NOTE or in any other loan document shall for any
reason be held to be inapplicable, invalid, illegal or unenforceable in any
respect, such inapplicability, invalidity, illegality, or unenforceability
shall, at the option of the BANK, not affect any other provision of this
Mortgage, but this Mortgage shall be construed as if such inapplicable,
invalid, illegal, or unenforceable provision had never been contained
herein or therein.
8
34) All of the grants, covenants, terms, provisions, and conditions herein
shall run with the land and shall apply to, bind and inure to the benefit
of, the successors and assigns of the MORTGAGOR and the successors and
assigns of the BANK.
35) This Mortgage or any of the terms hereunder cannot be modified orally.
36) This Mortgage shall be governed by the laws of the State of Florida.
37) Any sum or sums which may be loaned or advanced by the BANK to the
MORTGAGOR at any time during the term of this Mortgage or of the PROMISSORY
NOTE secured hereby but within the time limit authorized by Florida law for
making valid future advances, together with interest thereon at the rate
agreed upon at the time of such loan or advance, shall be equally secured
with and have the same priority as the original indebtedness and be subject
to all the terms and provisions of this Mortgage; provided, that the then
aggregate amount of principal outstanding shall not exceed twenty times the
original principal sum secured hereby.
38) It is the intent hereof to secure payment of the NOTE and obligation
secured hereby whether the entire amount shall have been advanced to the
MORTGAGOR on the date hereof, or at a later date, and to secure any other
amount or amounts that may be added to the mortgage indebtedness under the
terms of this instrument, or advanced in the future. The total amount of
indebtedness secured hereby may decrease or increase from time to time but
the total unpaid balance so secured at any one time shall not exceed twenty
times the original principal sum secured hereby together with interest
accrued thereon and any disbursements made for the payment of taxes,
levies, insurance premiums or advances made by the BANK as herein elsewhere
provided for the protection of the property covered by the lien of this
Mortgage, with interest thereupon; and this Mortgage shall secure any and
all additional or further monies which may be advanced by the BANK, which
future advances of money, if made, shall be evidenced by a NOTE or NOTE
executed by the MORTGAGOR to the BANK bearing such rate of interest and
with such maturities as shall be determined from time to time, but any and
all such future advances secured by this Mortgage shall be made within the
time limit authorized by Florida law for making valid future advances.
Nothing herein contained shall be deemed an obligation on the part of the
BANK to make any future advances.
39) If at any time the State of Florida shall determine that the documentary
stamps affixed to the NOTE or hereto or the taxes paid on this Mortgage are
insufficient and that additional stamps or taxes should thereafter be
affixed or paid, 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 or taxes and penalties
shall, until such stamps are purchased and affixed and such taxes and
penalties paid, be a portion of the indebtedness secured by this Mortgage
and bear interest from the date of such determination at the maximum
default rate as provided in the PROMISSORY NOTE secured hereby.
40) Any payment made in accordance with the terms of this Mortgage by any
person at any time liable for the payment of the whole or any part of the
sums now or hereafter secured by this Mortgage, or by any subsequent owner
of the premises, or by any other person whose interest in the premises
might be prejudiced in the event of a failure to make such payment, or by
any stockholder, officer, or director of a corporation which at any time
may be liable for such payment or may own or have such an interest in the
premises, shall be deemed, as between the BANK and all persons who at any
time may be liable as aforesaid, or may own the premises, to have been made
on behalf of all such persons.
41) Acceptance by the BANK of any payment which is less than full payment of
all amounts due and payable at the time of such payment, even if made by
one other than the obligor, shall not constitute a waiver of the
9
MORTGAGEE'S right to exercise its option to declare the whole of the
principal sum then remaining unpaid, together with all accrued interest
thereon, immediately due and payable without notice, or any other rights of
the BANK except as to the extent otherwise provided by law.
42) The rights of the BANK arising hereunder or allowed or permitted to the
BANK by law, shall be separate, distinct and cumulative, and the selection
of one remedy shall not preclude the selection of another or other remedies
until the BANK shall have recovered all sums due it, together with the
appropriate interest thereon, and all costs of collections, including
attorney's fees and appellate attorney's fees.
43) Wherever used in this Mortgage, unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, the word
"MORTGAGOR" shall mean "Mortgagor and/or any subsequent owner or owners of
the premises"; the word "BANK" shall mean "OCEAN BANK or any subsequent
holder or holders of this Mortgage"; the word "PROMISSORY NOTE" shall mean
"NOTE of even date herewith secured by this Mortgage, and any additional
NOTE hereafter to be issued, secured by this Mortgage pursuant to the
future advance provision hereof"; the word "person" shall mean "an
individual, corporation, partnership or unincorporated association, joint
stock corporation and joint venture", and pronouns of any gender shall
include the other genders, and either the singular or the plural shall
include the other. If the MORTGAGOR consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint
and several.
44) If at any time any of the buildings or the improvements or the equipment
now or hereafter located on or in the premises be unprotected or unguarded,
or the premises be allowed to remain vacant or deserted for more than seven
(7) days after notice from BANK to MORTGAGOR, the BANK may, at its option,
employ watchmen for the premises and expend any monies deemed by it
necessary to protect the premises and the building and improvements thereon
and the personal property therein from waste, vandalism and other hazards,
depredation or injury, and the amount of any monies expended for such
purposes with interest at the maximum default rate as provided in the
PROMISSORY NOTE secured hereby, and payment of sums so expended shall be
due and payable by MORTGAGOR to the BANK on demand and be added to the
indebtedness and be secured by this Mortgage.
45) MORTGAGOR represents, warrants, covenants and agrees to perform all of the
obligations to be performed by MORTGAGOR under this Mortgage, the
PROMISSORY NOTE secured hereby and any other instrument evidencing and/or
securing the indebtedness secured hereby.
46) THE MORTGAGOR hereby agrees that he will not obtain any secondary financing
on the mortgaged property which secures the loan from THE BANK to THE
MORTGAGOR, or otherwise encumber said property without the prior written
consent of THE BANK.
47) TAX AND INSURANCE ESCROW: If this Mortgage or the PROMISSORY NOTE secured
hereby are in default, and, if required by THE BANK, MORTGAGOR shall pay to
THE BANK on the payment due date of each payment as provided in THE NOTE,
any assessments or charges imposed upon the Mortgaged Property or any part
thereof by any party, whether public or private, (hereinafter referred to
as "Impositions") together with and in addition to such payments, a payment
representing the amount of the Impositions and insurance premiums for such
insurance as is required by THE BANK, next due on the Mortgaged Property in
an amount sufficient, as estimated by THE BANK, to accumulate the sum
required to pay such Impositions and insurance, as applicable, thirty (30)
days prior to the due date thereof. Amounts held hereunder shall not be,
nor be deemed to be, trust funds, but may be commingled with the general
funds of THE BANK, and no interest shall be payable with respect thereto.
10
Upon demand of THE BANK, MORTGAGOR shall deliver to THE BANK within ten
(l0) days after such demand, such additional money as is necessary to make
up any deficiencies in amounts necessary to enable THE BANK to pay such
Impositions and insurance premiums when due. In case of an even of default,
THE BANK may apply any amount under this section remaining to MORTGAGOR'S
credit to the reduction of THE NOTE, at such times and in such manner as
THE BANK shall determine.
48) ENVIRONMENTAL CONDITION OF PREMISES: Environmental Condition of Property.
MORTGAGOR hereby warrants and represents to THE BANK after thorough
investigation that:
a) the Premises are now and at all times hereafter will continue to be in
full compliance with all Federal, State and local environmental laws
and regulations, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of l980
(CERCLA), Public Law ▇▇. ▇▇-▇▇▇, ▇▇ ▇▇▇▇. ▇▇▇▇, and the Superfund
Amendments and Reauthorization Act of l986 (▇▇▇▇), Public Law ▇▇.
▇▇-▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇; and
b) as of the date hereof there are, to its knowledge after investigation,
no hazardous materials, substances, waste or other environmentally
regulated substances (including without limitations, any materials
containing asbestos) located on, in or under the Premises or used in
connection therewith, or
c) MORTGAGOR has fully disclosed to THE BANK in writing the existence,
extent and nature of any such hazardous material, substance, waste or
other environmentally regulated substance, currently present or which
MORTGAGOR is legally authorized and empowered to maintain on, in or
under the Premises or use in connection therewith, MORTGAGOR has
obtained and will maintain all licenses, permits and approvals required
with respect thereto, and is and will remain in full compliance with
all of the terms, conditions, and requirements of such licenses,
permits and approvals. MORTGAGOR further warrants and represents that
it will promptly notify THE BANK of any change in the environmental,
condition of the Premises or in the nature or extent of any hazardous
materials, substances or wastes maintained on, in or under the Premises
or used in connection therewith, and will transmit to THE BANK copies
of any citations, orders, notices or other material governmental or
other communication received with respect to any other hazardous
materials, substances, waste, or other environmentally regulated
substance affecting the Premises.
MORTGAGOR hereby indemnifies and holds harmless THE BANK from and against
any and all damages, penalties, fines, claims, suits, liabilities, costs
judgments and expenses (including attorneys', consultant's or expert's
fees) of every kind and nature incurred, suffered by or asserted against
THE BANK as a direct or indirect result of:
a) MORTGAGOR any warranty or representation made by MORTGAGOR in this
paragraph being or becoming false or untrue in any material respect or
b) any requirement under the law, regulation or ordinance, local, state or
federal, regarding the removal or elimination of any hazardous
materials, substances, waste or other environmentally regulated
substances.
MORTGAGOR'S obligations hereunder shall not be limited to any extent by the
term of THE NOTE, and, as to any act or occurrence prior to payment in full
and satisfaction of said NOTE which gives rise to liability hereunder,
shall continue, survive and remain in full force and effect notwithstanding
foreclosure of this Mortgage, where THE BANK is the purchaser at the
foreclosure sale, or delivery of a deed in lieu of foreclosure to THE BANK.
11
49) Upon improvement of the property and sale of the individual units and/or
lots, MORTGAGOR will be entitled to partial releases from the lien of this
Mortgage, provided that the Mortgage is in good standing and free from
default, upon the payment to the BANK of the amounts as specified in the
Partial Release Agreement between BANK and MORTGAGOR herein
IT IS FURTHER RECOGNIZED THAT IN THE EVENT THE MORTGAGOR REQUESTS THE BANK
TO ISSUE STAND-BY LETTER/S OF CREDIT GUARANTEEING A BENEFICIARY THAT FUNDS
WILL BE AVAILABLE TO COMPLETE CERTAIN WORK OBLIGATIONS REQUIRED TO BE
PERFORMED BY THE MORTGAGOR, THE STAND-BY LETTER/S OF CREDIT WILL BE SECURED
BY THIS MORTGAGE.
50) Mortgagor agrees it will fully perform, comply with and abide by each and
every one of the terms, covenants and agreements contained and set forth in
the certain Mortgage Loan Commitment by and between the parties hereto,
dated November 12, 2002, accepted November 27, 2002, together with any
further modifications or amendments thereof, relating to this Mortgage
loan, executed copies of which are in the possession of the Mortgagor and
Mortgagee. Any default under or breach by Mortgagor of said Mortgage Loan
Commitment and amendments thereto, if any, or other loan documents shall,
at the option of the Mortgagee, be an Event of Default under the terms of
this Mortgage.
51) In order to induce the BANK to make the loan, MORTGAGOR represents and
warrants that: (a) except as previously or concurrently disclosed in
writing to the BANK, there are no actions, suits or proceedings pending or
threatened against or affecting any Mortgagor or any portion of the
premises, or involving the validity or enforceability of this Mortgage or
the priority of its lien, before any court of law or equity or any
tribunal, administrative board or governmental authority, and no Mortgagor
is in default under any other indebtedness or with respect to any order,
writ, injunction, decree, judgment or demand of any court or any
governmental authority; (b) the execution and delivery of the NOTE, this
Mortgage and all other Loan Documents do not and shall not (i) violate any
provisions of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination, or award applicable to any Mortgagor, nor (ii)
result in a breach of, or constitute a default under any indenture, bond,
mortgage, lease, instrument, credit agreement, undertaking, contract or
other agreement to which any Mortgagor is a party or by which any of them
or their respective properties may be bound or affected; (c) the NOTE, this
Mortgage and all other Loan Documents constitute valid and binding
obligations of the Mortgagor executing the same, enforceable against such
Mortgagor in accordance with their respective terms; (d) all financial
statements of the Mortgagors previously delivered to the BANK have been
prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the correct respective financial
conditions of the Mortgagor as of their respective dates, and the foregoing
shall be true with respect to all financial statements of the Mortgagor
delivered to Mortgagee hereafter; (e) there is no fact that the Mortgagor
have not disclosed to the BANK in writing that could materially adversely
affect their respective properties, businesses or financial conditions or
the premises, or any other collateral for the Loan; (f) the Mortgagor have
duly obtained all permits, licenses, approvals and consents from, and made
all filings with ,any governmental authority (and the same have not lapsed
nor been rescinded or revoked) which are necessary in connection with the
execution or delivery or enforcement of this Mortgage or any other Loan
Document or the performance of any Mortgagor's obligations thereunder; (g)
the proceeds of the Loan are not being used to purchase or carry any
"margin stock" within the meaning of the Regulation "U" of the Board of
Governors of the Federal Reserve System, nor to extend credit to others for
that purpose; and (h) each extension of credit secured by this Mortgage is
exempt from the provisions of the Federal Consumers Credit Protection Act
12
(Truth-in-Lending Act) and Regulation "Z" of the Board of Governors of the
Federal Reserve System, because Mortgagor is a person fully excluded
therefrom, and/or because said extension of credit is only for business or
commercial purposes of Mortgagor and is not being used for personal,
family, household or agricultural purposes.
Mortgagor acknowledges and agrees that the BANK is relying on the
representations and warranties in this Mortgage and all other Loan
Documents as a precondition to making the Loan, and that all such
representations and warranties shall survive the closing of the Loan and
any bankruptcy proceedings.
52) THE BANK AND THE MORTGAGOR SPECIFICALLY AGREE THAT THEY WAIVE ALL RIGHTS TO
RELY ON OR ENFORCE ANY ORAL STATEMENTS MADE PRIOR TO OR SUBSEQUENT TO THE
SIGNING OF THIS DOCUMENT.
53) THE BANK AND THE MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS DOCUMENT, AND/OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, AND/OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY MADE
BEFORE, DURING, OR AFTER THE EXECUTION OF THIS DOCUMENT. THIS WAIVER
APPLIES IN THE EVENT ANY OTHER PARTIES INSTITUTE, JOIN, OR DEFEND ANY
LITIGATION. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK EXTENDING
CREDIT TO BORROWER. IT IS EXPRESSLY AGREED THAT NO PARTY OR ENTITY HAS
REPRESENTED THAT THIS WAIVER WILL NOT BE ENFORCED.
54) VENUE AND JURISDICTION SHALL BE IN ▇▇▇▇▇▇ COUNTY, FLORIDA, FOR ANY
AFFIRMATIVE OR DEFENSIVE LEGAL PROCEEDINGS IN CONNECTION WITH THIS DOCUMENT
AND/OR ANY OTHER DOCUMENT SIGNED BY THE MORTGAGOR IN FAVOR OF THE BANK.
IN WITNESS WHEREOF, the MORTGAGOR has, on the day and year first above
written, executed these presents.
Signed, sealed, and deliver ORIOLE AT STONECREST, INC.,
in the presence of: a Florida corporation.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇, PRESIDENT
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ATTEST: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- ---------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
ASST. SECRETARY
13
STATE OF FLORIDA }
} ss:
COUNTY OF PALM BEACH }
THE FOREGOING instrument was acknowledged before me this 29th day of
January, 2003, by ▇▇▇▇ ▇. ▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as President and Asst.
Secretary, respectively, of ORIOLE AT STONECREST, INC., a Florida corporation,
on behalf of the corporation. They have produced Florida drivers' licenses as
identification.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇
My Commission Expires: -------------------
August 26, 2005
14