EXHIBIT 10.45
THIS INSTRUMENT PREPARED BY:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ESQ.
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE DEED
THIS MORTGAGE DEED, executed this 16th day of July, 2001, by and
between ORIOLE HOMES CORP., 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 those certain Promissory Notes in the amount of
$2,296,586.00 and $4,950,000.00, executed by the MORTGAGOR 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 Palm Beach, State of Florida,
to-wit:
---SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF--
THIS MORTGAGE IS BEING GIVEN IN CONNECTION WITH A CERTAIN CONSTRUCTION
LOAN AGREEMENT OF EVEN DATE, THE TERMS OF WHICH ARE INCORPORATED HEREIN BY
REFERENCE.
THIS IS AN OPEN FIRST MORTGAGE IN THE TOTAL AMOUNT OF $7,246,586.00
GIVEN TO SECURE ANY PRESENT OR FUTURE OBLIGATIONS OF MORTGAGOR.
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.
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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 MORTGAGOR shall pay unto the BANK the total
sum of money aggregating to SEVEN MILLION TWO HUNDRED FORTY SIX THOUSAND FIVE
HUNDRED EIGHTY SIX AND NO/100 DOLLARS ($7,246,586.00), 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 DOES HEREBY FURTHER COVENANT AND AGREE AS FOLLOWS:
1) MORTGAGOR shall promptly pay when due, the principal and interest on
the indebtedness evidenced by the PROMISSORY NOTE or Notes, 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 or Notes, 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 than the outstanding
principal sum of the Promissory Notes 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
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insurance shall be written and it shall be incumbent upon the MORTGAGOR
to 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 or Notes
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 AND BANK FURTHER AGREE TO THE FOLLOWING:
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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 MORTGAGOR fails to pay any charges or obligations
required to be paid by MORTGAGOR 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 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 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 delivered at the
mortgaged premises, 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,
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BANK may, at BANK'S option, declare 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 Notes 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
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mailed by United States Certified Mail, 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 NOTES
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
NOTES 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 or NOTES, 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 NOTES hereby
secured forthwith due and payable, whereupon the principal of and the
interest accrued on the PROMISSORY NOTES 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
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endorsers, and/or guarantors of the indebtedness hereby secured or any
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
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any present or future law in order to publish notice of and to
fully 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
NOTES, 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
NOTES 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 NOTES 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 NOTES 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 NOTES 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.
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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 NOTES 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 five times the original principal sum
secured hereby.
38) It is the intent hereof to secure payment of the Notes 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 five 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 Notes 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 NOTES 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 MORTGAGEE'S right to exercise its option to declare the whole of
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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 or Notes of even date herewith secured by this
Mortgage, and any additional Notes 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 NOTES 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 NOTES secured hereby and any other instrument evidencing
and/or securing the indebtedness secured hereby.
46) THE MORTGAGOR hereby agrees that it 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 Notes
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. Upon
demand of THE BANK, MORTGAGOR shall deliver to
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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.
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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 Construction Loan 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.
ONCE THE LOAN SECURED BY THIS MORTGAGE, IS PAID OFF PURSUANT TO THE
TERMS OF PAYMENT OF THE NOTE AND THE RELEASE PROVISION HEREINABOVE
DESCRIBED, THE MORTGAGOR FURTHER AGREES TO CONTINUE PAYING THE BANK THE
RELEASE PRICE STIPULATED HEREIN, AND THE BANK AGREES TO SET ASIDE SAID
FUNDS IN AN INTEREST-BEARING SAVINGS ACCOUNT UNTIL SUCH TIME AS SAID
ACCOUNT HAS REACHED THE OUTSTANDING BALANCE OF THE STAND-BY LETTER/S OF
CREDIT ISSUED BY THE BANK IN FAVOR OF THE BENEFICIARY. THE FUNDS
DEPOSITED INTO SAID INTEREST BEARING SAVINGS ACCOUNT WILL SERVE AS
COLLATERAL FOR THE STAND-BY LETTER/S OF CREDIT. AS THE OBLIGATIONS OF
THE STAND-BY LETTER/S OF CREDIT ARE REDUCED, THE MORTGAGOR MAY WITHDRAW
FUNDS FROM SAID ACCOUNT; PROVIDED THAT THE REMAINING BALANCE OF THE
INTEREST BEARING ACCOUNT IS NOT LESS THAN THE OUTSTANDING BALANCE OF
THE STAND-BY LETTER/S OF CREDIT.
50) An interest reserve in the amount of $400,000.00 has been established
for this transaction. This sum is to be allocated to the interest
payments due under the loan and shall be disbursed once a month, as per
invoices of THE BANK. Once this reserve is depleted, any excess of the
interest payments due under the loan shall be paid out of THE
MORTGAGOR'S own funds to THE BANK when due. In the event that actual
construction has not taken place within six months after closing of
this loan, the interest reserve funds will become frozen until a new
approval is obtained from THE BANK.
51) 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 May 2, 2001, accepted May 17, 2001, 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.
52) 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
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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 (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.
53) 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.
54) 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.
55) VENUE AND JURISDICTION SHALL BE IN PALM BEACH COUNTY, FLORIDA, FOR ANY
AFFIRMATIVE OR DEFENSIVE LEGAL PROCEEDINGS IN
13
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 HOMES CORP., a Florida
in the presence of: corporation.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
------------------------------------ -------------------------------
▇▇▇▇ ▇. ▇▇▇▇, PRESIDENT
Attest:
------------------------------------ ----------------------------
▇. ▇. ▇▇▇▇, SECRETARY
STATE OF FLORIDA }
} ss:
COUNTY OF MIAMI-DADE }
THE FOREGOING instrument was acknowledged before me this _____ day of
____________________________, 2001, by ▇▇▇▇ ▇. ▇▇▇▇ AND ▇.▇. ▇▇▇▇, as President
and Secretary, respectively, of ORIOLE HOMES CORP., a Florida corporation, on
behalf of the corporation. They have produced Florida drivers' licenses as
identification.
----------------------------------
ENI ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC, STATE OF FLORIDA
My Commission Expires:
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