Prepared by and
return to:
James S. Groh,
Esq.
HOLLAND & KNIGHT LLP
50 North. Laura Street
Suite 3900
Jacksonville, Florida 32202
FIRST MORTGAGE, ASSIGNMENT OF
RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (the “Mortgage”) is executed as of
June 13, 2008, by SPECTRUM SCIENCES & SOFTWARE, INC., a
Florida corporation, whose address is 2677 Prosperity Avenue,
Suite 300, Fairfax, Virginia 22031 (the
“Mortgagor”), which term as used herein in every
instance shall include the Mortgagor’s successors, legal
representatives and assigns, including all subsequent grantees,
either voluntary by act of the parties or involuntary by operation
of law, to SUSOTT FAMILY LIMITED PARTNERSHIP, a California limited
partnership, whose address is 4267 Marina City Drive, Apt. #1106,
Marina Del Rey, CA 90292 (the “Mortgagee”),
which term as used herein in every instance shall include the
Mortgagee’s successors, legal representatives and assigns,
including all subsequent assignees, either voluntary by act of the
parties or involuntary by operation of law.
THAT for diverse
good and valuable considerations, and also to secure the payment of
the aggregate sum of money named in the Note as hereinafter
defined, together with interest thereon, and all other sums of
money secured hereby as hereinafter provided, the Mortgagor does
hereby mortgage, encumber and lien unto the Mortgagee the land of
which the Mortgagor is now seized and in actual possession, in the
County of Okaloosa County, State of Florida, described in
Exhibit A attached hereto and made a part hereof
(hereinafter referred to as the “Land”),
together with all and singular the improvements, tenements,
hereditaments, easements and appurtenances thereunto belonging, or
in anyway appertaining, and the rents, issues, and profits thereof,
and also all the estate, right, title, interest and all claims and
demands whatsoever, as well in law as in equity, of said Mortgagor
in and to the same, and every part and parcel thereof, and also
specifically but not by way of limitation all gas and electric
fixtures, water and drainage pumps, pipes, component parts and
materials located upon the Land, and which are now or may hereafter
pertain to or be used with, in or on said premises, even though
they be detached or detachable, are and shall be deemed to be
fixtures and accessories to the freehold and a part of the realty
(the Land and all other property described in this paragraph is
hereinafter collectively referred to as the “Mortgaged
Property”).
The said Mortgagor
hereby covenants with the said Mortgagee that the said Mortgagor is
indefeasibly seized with the absolute and fee simple title to the
Mortgaged Property, and has full power and lawful authority to
mortgage, encumber and lien the same; that the Mortgaged Property
is free and discharged from all liens, encumbrances and claims of
any kind, including taxes and assessments, except for the
subordinate lien of the Second Mortgage, as such term is defined in
Section 15 herein; and that the Mortgagor will make at
Mortgagor’s expense and at no expense to Mortgagee, such
other and further
assurances to
perfect the lien on said Mortgaged Property, fixtures and personal
property in the Mortgage as may hereafter be required.
NOW, THEREFORE,
the conditions of this Mortgage are such that if the Mortgagor
shall well and truly pay unto the Mortgagee the indebtedness
evidenced by that certain Commercial Note (the “Note”)
of even date herewith, made by the Mortgagor and payable to the
Mortgagee in the principal sum of ONE MILLION AND 00/100 DOLLARS
($1,000,000.00), the final payment of which is due upon the earlier
of (i) June 13, 2009, subject to one (1) six
(6) month extension option pursuant to the Note, or
(ii) the sale of the Mortgaged Property, together with any
note or notes hereafter executed by the Mortgagor herein by and in
accordance with Section 13 of this Mortgage as hereinafter set
forth and secured by the lien of this Mortgage, together with
interest as therein stated, and shall perform, comply with and
abide by each and every one of the stipulations, agreements,
conditions and covenants contained and set forth in this Mortgage
and in the Note secured hereby, then this Mortgage and the estate
hereby created shall cease and be null and void.
AND the Mortgagor
does hereby covenant and agree:
1. To
perform, comply with and abide by each and very one of the
stipulations, agreements, conditions and covenants contained and
set forth in said Note or Notes and this Mortgage.
2. To pay the
indebtedness secured by this Mortgage and according to the true
tenor and effect of the Note or of any renewal thereof, promptly on
the day or days the same become due.
3. To pay,
before becoming delinquent, all obligations, encumbrances, taxes,
assessments, sidewalk paving, sanitary and other assessments,
levies or liens, now or hereafter levied or imposed upon or against
the Mortgaged Property, and to exhibit to the Mortgagee before such
taxes, assessments, liens and encumbrances become delinquent the
official receipt for payment thereof, and if the same or any part
thereof be not paid before becoming delinquent the Mortgagee may at
any time pay the same with accrued interest and charges, if any,
without waiving or affecting Mortgagee’s option to
foreclosure this Mortgage, or any right hereunder, and every
payment so made shall bear interest from the date thereof at the
maximum rate permitted by law, and all such payments with interest
shall be secured by the lien hereof.
4. That in
the event a suit is instituted to foreclose this Mortgage, the
Mortgagee shall be entitled to apply at any time during 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 rents, income, profits, issues and revenues
thereof, from whatsoever source derived; and thereupon it is hereby
expressly covenanted and agreed that the court shall forthwith
appoint such receiver with the usual powers and duties of receivers
in like cases; and said appointment shall be made by the court as a
matter of strict right to the Mortgagee, and without reference to
the adequacy or inadequacy of the value of the Mortgaged Property,
or to the solvency or insolvency of the Mortgagor or any other
party defendant to such suit. The Mortgagor hereby specifically
waives the right to object to the appointment of a receiver as
aforesaid and hereby expressly consents that such appointment shall
be made as a admitted equity and as a matter of absolute right to
the Mortgagee.
5. That if
any proceedings should be instituted against the Mortgaged
Property, upon any other lien or claim whether superior or junior
(if permitted) to the lien of this Mortgage, then the Mortgagee may
declare the Note and the indebtedness secured hereby due and
payable forthwith and may at its option proceed to foreclose this
Mortgage.
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6. To pay all
and singular the costs, fees, charges and expenses of every kind
found to be convenient or expedient in connection with any suit for
the foreclosure of this Mortgage, and also including, whether the
Mortgagee is obligated to pay same or not, reasonable
attorney’s fees incurred or expended at any time by the
Mortgagee because of the failure of the Mortgagor to perform,
comply with and abide by all or any of the covenants, conditions
and stipulations of the Note, or this Mortgage, in the foreclosure
of this Mortgage and in collecting the amount secured hereby with
or without legal proceedings, and to reimburse the Mortgagee for
every payment made or incurred for any such purpose with interest
from date of every such payment at the maximum rate permitted by
law; such payments and obligations, with interest thereon as
aforesaid, shall be secured by the lien hereof.
7. To keep
the improvements now or hereafter constructed on the Land insured
against loss or damage by fire, extended coverage and other perils,
and flood insurance if the Land is in a flood zone area, in a sum
not less than their full insurable value, at the cost and expense
of the Mortgagor, by a company or companies reasonably acceptable
to the Mortgagee, and such policy or policies of insurance shall
name Mortgagee as the mortgage holder. The term “full
insurable value” means one hundred percent (100%) of the
actual replacement cost of the Property (excluding foundation and
excavation costs and costs of underground flues, pipes, drains and
other uninsurable items).
8. To permit,
commit or suffer no waste and to maintain the improvements on the
Land at all times in a state of good repair and conditi
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