PREPARED BY AND, AFTER
RECORDING, RETURN TO:
Cole, Schotz, Meisel, Forman & Leonard,
P.A.
Court Plaza North
25 Main Street
P.O. Box 800
Hackensack, New Jersey 07602-0800
Attention: Michael R. Leighton, Esq.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE, made
as of this 20th day of April, 2007, by COSTA BLANCA II
REAL ESTATE, LLC, a Florida limited liability company,
having an address at 2460 Sand Lake Road, Orlando, Florida 32809,
COSTA BLANCA III REAL ESTATE, LLC, a Florida
limited liability company, having an address at 2460 Sand Lake
Road, Orlando, Florida 32809, TDS TOWN HOMES (PHASE 1),
LLC, a Florida limited liability company, having an
address at 2460 Sand Lake Road, Orlando, Florida 32809, TDS
TOWN HOMES (PHASE 2), LLC, a Florida limited liability
company, having an address at 2460 Sand Lake Road, Orlando, Florida
32809 and TDS AMENITIES, INC. , a Florida
corporation having an address at 2460 Sand Lake Road, Orlando,
Florida 32809 (collectively, “Mortgagor”), and
KENNEDY FUNDING, INC., a New Jersey corporation,
having an office at Two University Plaza, Suite 402, Hackensack,
New Jersey 07601, as agent (“Agent”) for the lenders
identified in Schedule A of the Note (as hereinafter defined)
(Agent and the said lenders are hereinafter collectively referred
to as “Mortgagee”).
W I T N E S S E T H
WHEREAS, Mortgagee
has agreed to lend and Mortgagor has agreed to borrow the principal
sum of TWENTY FOUR MILLION NINE HUNDRED THOUSAND
($24,900,000) DOLLARS (“Loan”), on the terms
and conditions provided herein and in the Loan Documents (as
hereinafter defined);
WHEREAS, Mortgagor
has executed and delivered to Mortgagee, among other things, that
certain Loan and Security Agreement (“Loan Agreement”)
and that certain Promissory Note (“Note”) both of even
date herewith, evidencing the Loan; and
WHEREAS, Mortgagor
expects to derive benefit from the Loan and has agreed to secure
the Loan by, among other things, the grant of this Mortgage to
Mortgagee.
NOW, THEREFORE, KNOW
ALL MEN BY THESE PRESENTS, that in order to secure
Mortgagor’s obligations under the Loan Documents, including
the payment of principal and interest, late fees, attorneys’
fees, costs and disbursements, the full and prompt payment and
performance of all of the indebtedness, obligations, covenants,
agreements and liabilities of Mortgagor to Mortgagee, together with
all interest and other charges thereon, whether direct or indirect,
existing, contingent or otherwise, due or to become due, under or
arising out of or in connection with the Loan Agreement and any
future modifications thereof and any other instruments or documents
delivered in connection herewith or therewith and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Mortgagor has mortgaged, granted, bargained,
sold, conveyed, aliened, released, transferred, warranted and
confirmed, and does hereby mortgage, grant, bargain, sell, convey,
alien, release, transfer, warrant and confirm unto Mortgagee, and
to all its successors and assigns forever, the following described
property (collectively, the “Property”):
A. The real estate
located in County of Polk, State of Florida (the
“State”) more particularly described in Exhibit
A attached hereto and made a part hereof for all purposes the
same as if set forth herein verbatim, together with all right,
title and interest of Mortgagor in and to (a) all streets, roads,
alleys, easements, rights-of-way, licenses, rights of ingress and
egress, vehicle parking rights and public places, existing or
proposed, abutting, adjacent, used in connection with or pertaining
to the real property or the Improvements (as hereinafter defined);
(b) any strips or gores between the real property and abutting or
adjacent properties; and (c) all water and water rights, timber,
crops and mineral interests pertaining to the real property (such
real estate and other rights, titles and interests being
hereinafter sometimes called “Land”);
B. All buildings,
structures and other improvements or any part thereof, now or
hereafter situated on or under the Land and all restorations and
replacements thereof (“Improvements”);
C. All fixtures and
systems and articles of personal property, of every kind and
character, now owned or hereafter acquired by Mortgagor
(Mortgagor’s successors or assigns), which are now or
hereafter attached to the Land or the Improvements and owned by
Mortgagor, or used in or necessary to complete the proper planning,
development, use, occupancy or operation thereof, or acquired
(whether delivered to the Land or stored elsewhere) for use or
installation in or on the Land or the Improvements, and all
renewals and replacements of, substitutions for and additions to
the foregoing, including, but without limiting the foregoing, all
of the following items now owned or hereafter acquired by
Mortgagor, any and all fixtures, systems, heating, ventilating, air
conditioning, refrigerating, plumbing, water, sewer, lighting,
generating, cleaning, storage, incinerating, waste disposal,
sprinkler, fire extinguishing, communications, transportation (of
people or things, including, but not limited to, stairways,
elevators, escalators and conveyors), data processing, security and
alarm, laundry, food or drink preparation, storage of serving, gas,
electrical and electronic, water, and recreational uses or
purposes; all tanks, pipes, wiring, conduits, ducts, doors,
partitions, floor coverings, wall coverings, windows, window
screens and shades, awnings, fans, motors, engines and boilers;
motor vehicles; decorative items and art objects; and files ,
records and books of account (all of which are herein sometimes
referred to together as “Accessories”);
D. All (a) plans
and specifications for the Improvements; (b) contracts relating to
the Land or the Improvements or the Accessories or any part
thereof; (c) deposits including, but not limited to,
Mortgagor’s rights in tenants’ security deposits (if
any), deposits with respect to utility services to the Land or the
Improvements or the Accessories or any part thereof, and any
deposits or reserves hereunder or under any other Loan Document (as
hereinafter defined) for taxes, insurance or otherwise, funds,
accounts, contract rights, instruments, documents, commitments,
general intangibles, notes and chattel paper used in connection
with or arising from or by virtue of any transactions related to
the Land or the Improvements or the Accessories or any part
thereof; (d) permits, licenses, franchises, bonds, certificates and
other rights and privileges obtained in connection with the Land or
the Improvements or the Accessories or any part thereof; (e)
leases, rents, royalties, bonuses, issues, profits, revenues and
other benefits of the Land, the Improvements and the Accessories;
and (f) other properties, rights, titles and interests, if any,
specified in any Section or any Article of this Mortgage as being
part of the Property;
E. All proceeds,
products, consideration, compensation and recoveries, direct or
consequential, cash and noncash, of or arising from, as the case
may be, (a) the properties, rights, titles and interests referred
to above in paragraphs (A), (B), (C) and (D); (b) any sale, lease
or other disposition thereof; (c) each policy of insurance relating
thereto (including premium refunds); (d) the taking thereof or of
any rights appurtenant thereto by eminent domain or sale in lieu
thereof for public or quasi-public use under any law; and (e) any
damage thereto whether caused by such a taking (including change of
grade of streets, curb cuts or other rights of access) or otherwise
caused; and
F. All other
interests of every kind and character, and proceeds thereof, which
Mortgagor now has or hereafter acquires in, to or for the benefit
of the properties, rights, titles and interests referred to above
in paragraphs (A), (B), (C), (D), (E) and all property used or
useful in connection therewith, including, but not limited to,
remainders, reversions and reversionary rights or interests that
apply to the Property.
TO HAVE AND TO HOLD
the Property, unto Mortgagee and Mortgagee’s successors,
substitutes or assigns, for the uses and purposes herein set forth,
forever, together with all rights, privileges, hereditaments and
appurtenances in anyway appertaining or belonging thereto, subject
only to the “Permitted Encumbrances” includes both (i)
listed on Exhibit B attached hereto to the extent that the
same are valid, subsisting and affect the Property, free from all
rights and benefits under and by virtue of any applicable homestead
exemption or similar laws, which said rights and benefits Mortgagor
does hereby expressly release and waive, and (ii) that certain loan
in the combined amount of up to Twenty Five Million ($25,000,000)
Dollars to Standford International Bank and Resorts Funding Group,
LLC.
PROVIDED ALWAYS, that
these presents are upon the express condition, that if Mortgagor
shall pay unto Mortgagee, its successors or assigns, all
Indebtedness due under the terms of the Loan Documents and shall
pay and perform the Obligation (as hereinafter defined), without
any deduction or credit for any amount payable for taxes in
accordance with the terms of the said Note, and hereof, then this
mortgage shall cease, determine and become null and void; otherwise
to remain in full force and effect.
ARTICLE I.
THE
OBLIGATION
Section 1.1
Mortgagee . The expression “this Mortgage,” as
used herein, shall mean this Mortgage, and all rights, title,
interest, liens, security interests, powers and privileges created
hereby or arising by virtue hereof. This Mortgage is given to
secure payment and performance of the Obligation, including the
indebtedness described in Section 1.2 . The word
“Mortgagee,” as used herein, shall mean KENNEDY
FUNDING, INC., a New Jersey corporation, Two University
Plaza, Hackensack, New Jersey 07601, as agent for the lenders
identified in the Note defined hereinbelow, in each case having an
address c/o Mortgagee, Two University Plaza, Hackensack, New Jersey
07601.
Section 1.2
Obligation . The word “Obligation”,
“Obligations” or the word “Indebtedness,”
as used herein, shall mean all of the indebtedness, obligations and
liabilities described as follows:
(a) the
indebtedness, obligations and liabilities of Mortgagor arising
under any documents evidencing, securing, or now or hereafter
executed in connection with the Loan (each a “Loan
Document”; collectively “Loan Documents”)
evidencing the Loan; and
(b) all other and
additional indebtedness, liabilities and obligations, of every kind
and character, of Mortgagor now or hereafter existing in favor of
Mortgagee, regardless of whether they are direct, indirect,
primary, secondary, joint, several, joint and several, liquidated,
unliquidated, fixed or contingent, and regardless of whether the
same may, prior to their acquisition by Mortgagee, be or have been
payable to some other person or entity, it being the intention and
contemplation of Mortgagor and Mortgagee that future advances may
be made to Mortgagor by Mortgagee for a variety of purposes, that
Mortgagor may guarantee (or otherwise become directly or
contingently obligated with respect to) the obligations of others
to Mortgagee, and that Mortgagee may, from time to time, acquire
from others obligations of Mortgagor to such others, or that
Mortgagor may otherwise hereafter be or become further indebted to
Mortgagee, and that payment and repayment of all of the foregoing
are intended to and shall be part of the indebtedness secured
hereby; and
(c) and any and all
renewals, modifications, rearrangements, amendments or extensions
of all or any part of the indebtedness, obligations and liabilities
described or referred to in Subsections 1.2(a) ,
1.2(b) , preceding.
Mortgagor, and each
party at any time claiming an interest in or lien or encumbrance
against the Property, agrees that all advances made by Mortgagee
from time to time under any of the Loan Documents, and all other
portions of the Obligation herein referred to, shall be secured by
this Mortgage with priority as if all of the same had been
advanced, had arisen or become owing or performable on the date
hereof, no reduction of the outstanding principal balance under the
Loan Agreement shall extinguish, release or subordinate any rights,
titles, interests, liens, security interests, powers or privileges
intended, created or arising hereunder or under any other Loan
Document, and this Mortgage shall remain in full force and effect
as to any subsequent advances or subsequently arising portions of
the Obligation without loss of priority until the Obligation is
fully paid, performed and satisfied in accordance with the Note, as
applicable, all agreements and obligations, if any, of Mortgagee
for further advances have been terminated and this Mortgage has
been released of record by Mortgagee.
ARTICLE II.
CERTAIN REPRESENTATIONS, WARRANTIES
AND COVENANTS OF MORTGAGOR
Section 2.1
Payment and Performance of Obligations . Mortgagor shall pay
and perform the Obligations when due in accordance with the
provisions of the Loan Documents; and if any Default (hereinafter
defined) shall be made in the performance of any of the
Obligations, Mortgagee shall have the remedies granted to Mortgagee
hereunder, under the Loan Documents and under applicable law.
Section 2.2
Indebtedness Secured . This Mortgage has been given and is
intended to secure the full and prompt payment and performance of
each and all of the Obligations and any renewal, extension,
modification or replacement of any of the Obligations. Except as
otherwise provided herein, this Mortgage shall remain in full force
and effect with respect to all of the Property until all the
Obligations shall have been paid and performed in full. If
Mortgagor shall well and truly pay and perform the Obligations at
the time and times, and in the manner mentioned in the Loan
Documents and shall well and truly abide by and comply with each
and every term, covenant and condition set forth in the Loan
Documents, then this conveyance shall be and become null and void
and shall be released at the expense of Mortgagor but if there
shall be any Default, then the Obligations shall become immediately
due and payable at the option of Mortgagee, without any notice to
Mortgagor or any other party, all of which notices of Default or
notices of intent to accelerate or acceleration hereby are
waived.
Section 2.3
Title to Property .
(a) The Mortgagor
represents and warrants that: (i) it has an indefeasible estate in
fee simple in the Land and Improvements and Accessories; (ii) it
has the good and unrestricted right, full power and lawful
authority to mortgage the Property; (iii) it has obtained any and
all consents and approvals necessary or required for the making of
this Mortgage; and (iv) the making of this Mortgage will not
violate any contract or agreement to which the Mortgagor is a
party.
(b) Mortgagor does
hereby and shall forever warrant and defend its title to and fee
simple interest in the Property and the validity and first priority
of the lien of this Mortgage to Mortgagee and its successors and
assigns, against all claims and demands whatsoever of any Person
(hereinafter defined). There are no defenses or offsets or
counterclaims to this Mortgage or to any of the Obligations.
(c) Mortgagor
represents and warrants to Mortgagee that any building or portion
of any building hereafter constructed on the Land shall be in
compliance with all applicable zoning and building codes,
ordinances and regulations, shall lie wholly within the boundaries
of the Land, and shall be an independent and self-contained
operating unit.
(d) Mortgagor shall
execute, acknowledge and deliver to Mortgagee any documents and
instruments which Mortgagee may reasonably request from time to
time for the better assuring, conveying, assigning, transferring,
confirming or perfecting Mortgagee’s security and rights
under this Mortgage.
Section 2.4
Liens . Mortgagor shall not, directly or indirectly, create
or suffer or permit to be created, or to stand, against the
Property or any portion thereof, or against the rents, issues and
profits therefrom, any lien, charge, mortgage, deed of trust,
adverse claim or other encumbrance (herein collectively referred to
as a “lien”), whether senior or junior in lien to this
Mortgage, other than the lien of this Mortgage and the Permitted
Encumbrances; provided, however, that nothing contained in this
Section 2.4 shall require Mortgagor to pay any real
estate taxes or other Impositions (as hereinafter defined) prior to
the time when same are required to be paid under this Mortgage.
Mortgagor will keep and maintain the Property free from all liens
arising in connection with the supply of labor or materials
relating to the construction, alteration, modification or repair of
the Improvements or the Property. Mortgagor agrees to discharge the
same of record by payment or bond within thirty (30) days after the
filing thereof. Notwithstanding anything to the contrary contained
herein, in no event shall Mortgagor do or permit to be done, or
omit to do or permit the omission of, any act or thing, where such
act or omission would impair the security of this Mortgage.
Section 2.5
Impositions . Mortgagor shall pay, at least five (5) days
before the date due, all real estate taxes, personal property
taxes, assessments, water and sewer rates and charges, license
fees, all charges which may be imposed for the use of vaults,
chutes, areas and other space beyond the lot line and abutting the
public sidewalks in front of or adjoining the Land, and all other
governmental levies and charges (collectively, the
“Impositions”), of every kind and nature whatsoever,
general and special, ordinary and extraordinary, foreseen and
unforeseen, which shall be assessed, levied, confirmed, imposed or
become a lien upon or against the Property or any part thereof, or
which shall become payable with respect thereto. Mortgagor shall
deliver to Mortgagee, within twenty (20) days after the due date of
each payment in connection with the Impositions or any assessment
for local improvements (“Assessment”), the original or
a true photostatic copy of the official receipt evidencing such
payment or other proof of payment satisfactory to Mortgagee.
Section 2.6
Insurance .
(a) Mortgagor shall
provide, at its sole cost and expense, and keep in force for the
benefit of itself and Mortgagee, comprehensive general liability
insurance against claims for bodily injury, death or property
damage and such other insurance on the Property or any part thereof
or any replacements or substitutions therefor, as Mortgagee may
reasonably require, and the following with respect to the Land,
Improvements and Accessories, provided there exists Improvements
upon the Property: (i) insurance against loss or damage by fire,
other hazards by so-called “all risk” and
“extended coverage,” and such other casualties and
hazards as Mortgagee shall reasonably require from time to time;
(ii) flood insurance if the Property is located in a flood hazard
area and earthquake and/or hurricane insurance to the extent that
owners of similar buildings in the same county as the Property
maintain such insurance; (iii) war risk insurance, when obtainable
from the United States government or any agency thereof; (iv) rent
insurance; (v) water damage legal liability insurance; (vi)
workers’ compensation insurance as required by law; (vii)
business interruption insurance; and (viii) such other insurance on
the Property or any part thereof or any replacements or
substitutions therefor, as Mortgagee may reasonably require.
(b) The policies of
insurance required by Subsection 2.6(a) hereof shall be
with companies, in forms and amounts, and for such reasonable
periods as Mortgagee shall require from time to time, and shall
insure the respective interests of Mortgagor and Mortgagee. The
full amount of the proceeds of any insurance covering real property
or tangible personal property subject to a lien or security
interest in favor of Mortgagee granted pursuant to any of the Loan
Documents in the case of each separate loss in excess of Ten
Thousand and 00/100 ($10,000.00) Dollars (a “Major
Loss”), other than the proceeds from the insurance required
under clauses (vi), and (vii) of Subsection 2.6(a)
hereof, shall be payable to Mortgagee pursuant to a
non-contributing loss payee endorsement satisfactory to Mortgagee.
Certificates of Insurance and true photocopies of the original
policies and renewals thereof covering the risks required to be
insured against in accordance with this Mortgage, bearing
satisfactory evidence of payment of all premiums thereon for the
succeeding one year period, shall be delivered to and held by
Mortgagee, and within five (5) days of demand by Mortgagee
Mortgagor shall deliver to Mortgagee the original policies and
renewals, replacements or endorsements thereof and shall assign to
Mortgagee said policies of insurance as additional security for the
indebtedness and other obligations secured hereby. At least twenty
(20) days prior to the expiration of each policy required to be
provided by Mortgagor, Mortgagor shall deliver Certificates of
Insurance evidencing renewal or replacement thereof along with true
photocopies of any endorsements or any renewal or replacement
policies to Mortgagee with satisfactory evidence of payment of all
premiums thereon.
(c) All insurance
policies required in accordance with this Mortgage shall: (1)
include effective waivers by the insurer of all rights of
subrogation against Mortgagor, Mortgagee, any lessee or other
occupant of all or any part of the Property, or any other Person
which controls, is controlled by or is under common control with
any of the foregoing; (2) provide that the full amount of the
proceeds of such insurance (other than the proceeds from the
insurance required under clauses (vi) and (vii) of
Subsection 2.6(a) hereof) shall, in the case of each
separate Major Loss, be payable notwithstanding: (A) any act,
failure to act or negligence of or violation of warranties,
declarations or conditions contained in such policy by any named
insured; (B) the occupation or use of the Improvements or the Land
for purposes more hazardous than permitted by the terms thereof;
(C) any foreclosure or other action or proceeding taken by
Mortgagee pursuant to any provision of this Mortgage; or (D) any
change in title to or ownership of the Property; (3) provide that
no cancellation, reduction in amount or material change in coverage
thereof shall be effective until at least thirty (30) days after
receipt by Mortgagee of written notice thereof; (4) include
“replacement cost endorsements” if available; and (5)
be reasonably satisfactory to Mortgagee in all other respects.
Mortgagor shall not permit any condition to exist with respect to
the Property which would wholly or partially invalidate any of the
insurance thereon.
(d) Mortgagee shall
have the right but not the obligation, on behalf of Mortgagor, to
adjust and compromise any claims under such insurance in the case
of a Major Loss, collect and receive the proceeds thereof and
execute and deliver all proofs of loss, receipts, vouchers, checks,
drafts, releases and other documents in connection with such
claims. Mortgagee is hereby irrevocably appointed attorney-in-fact
for Mortgagor (which appointment is coupled with an interest) for
such purposes, and Mortgagor shall, upon request of Mortgagee,
promptly execute any proofs of loss, receipts, vouchers, checks,
drafts, releases, and other documents in connection with such
claims.
(e) Mortgagee may
deduct from the proceeds of the insurance required to be obtained
by Mortgagor pursuant to Subsection 2.6(a) hereof,
other than the insurance required under clauses (vi) and (vii)
thereof, any expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by it in
connection with obtaining such proceeds, and Mortgagee may, at its
option, release the balance of such proceeds to Mortgagor for the
restoration of the Property (“Restoration”) or apply
the balance of such proceeds in reduction or satisfaction of all or
part of the Obligations, whether or not then due and payable (in
such order of priority as Mortgagee shall elect). Upon the
occurrence of any Default all of Mortgagor’s right, title and
interest in and to all such policies, including unearned premiums
thereon, shall be deemed assigned to Mortgagee. The application of
such insurance proceeds toward the payment or performance of the
Obligations shall not be deemed a waiver by Mortgagee of its right
to receive payment or performance of the remainder of the
Obligations and the interest thereon in accordance with the
provisions of the Loan Documents.
(f) In the event of
a sale, transfer or other disposition by Mortgagee of any of the
property of Mortgagor, the purchaser, assignee or transferee of
such property shall succeed to all of the rights of Mortgagee,
including any right to unearned premiums, in and to all policies of
insurance which Mortgagor is required to maintain under this
Section 2.6 and to all proceeds of such insurance.
(g)
Mortgagor’s policies of insurance may be maintained under
“blanket policies” insuring the Property and other
property owned by Mortgagor, provided that such blanket policies
shall: (i) separately set forth the amount of the insurance
applicable to the Property (except as to the insurance required
under clauses (iv), (v) and (vi) of Subsection 2.6(a)
hereof), (ii) otherwise comply with the provisions of this Section,
and (iii) afford the same protection to Mortgagee as, in
Mortgagee’s judgment, would be provided by policies
individually applicable to the Property.
(h) Mortgagor shall
not obtain or permit to be obtained separate insurance concurrent
in form or contributing in the event of loss with the insurance
Mortgagor is required to maintain under the provisions of this
Section.
Section 2.7
Condemnation .
(a) Mortgagor shall
give notice to Mortgagee immediately upon Mortgagor’s
learning of the commencement of any action or proceeding to take
all or any part of the Property by exercise of the right of
condemnation or eminent domain or of any action or proceeding to
close or to alter the grade of any street on or adjoining the Land.
Mortgagee may participate together with Mortgagor in any such
actions or proceedings in the name of Mortgagee or, whenever
necessary, in the name of Mortgagor, and Mortgagor shall deliver to
Mortgagee such instruments as Mortgagee shall request to permit
such participation. Mortgagor shall not settle any such action or
proceeding or agree to accept any award or payment without the
prior consent of Mortgagee (which consent Mortgagee may deny in its
sole discretion), and the total of all awards made or allowed with
respect to all right, title and interest in and to the Property or
the portion or portions thereof taken or affected by such
condemnation or eminent domain proceeding and any interest thereon
(hereinafter collectively called the “Award”) is hereby
assigned to and shall be paid to Mortgagee and the amount received
shall be retained and applied as provided in Subsection
2.7(b) hereof.
(b) The Obligations
may be accelerated at the option of Mortgagee as a result of the
exercise of the right of condemnation or eminent domain in respect
of all of the Property or any part of the Property which is
currently or may prior to the maturity date established in the Note
be utilized in the operation of Mortgagor’s business or which
may, in the sole judgment of Mortgagee, make impracticable the
restoration of the Property in a manner which will permit the
Property to be used for the purposes for which it was used prior to
the exercise of such right of condemnation or eminent domain, in
which event Mortgagee shall retain and apply the Award toward
payment and performance of the Obligations (in such order of
priority as Mortgagee shall elect); provided, however, that to the
extent that the Award received by Mortgagee shall exceed the amount
required to satisfy in full the then total amount of the
Obligations, Mortgagee shall pay over to Mortgagor the amount of
such excess and provided, further, that until the actual vesting of
title in such proceeding, the Obligations shall continue
unimpaired. If there is a taking of a portion of the Property in
any such proceeding and Mortgagee does not accelerate the
Obligations, then at the option of Mortgagee, the Award shall be:
(i) retained and applied by Mortgagee toward the payment or
performance of the Obligations in such order of priority as
Mortgagee may elect; or (ii) paid over in whole or in part to pay
or reimburse Mortgagor for the cost of restoring or reconstructing
the Improvements and the Accessories in a manner and on conditions
satisfactory to Mortgagee. In no event shall Mortgagee be required
to satisfy this Mortgage until the Obligations are fully paid and
Mortgagee shall not be required to release from the lien of this
Mortgage until the Obligations are fully paid any portion of the
Property so taken until Mortgagee receives the entire amount of
Award for the portion so taken.
(c) The application
of the Award toward payment or performance of the Obligations shall
not be deemed a waiver by Mortgagee of its right to receive payment
or performance of the balance of the Obligations in accordance with
the provisions of the Loan Documents. Mortgagee shall have the
right, but shall be under no obligation, to question the amount of
the Award, and Mortgagee may accept same without prejudice to the
rights that Mortgagee may have to question such amount. In any such
condemnation or eminent domain action or proceeding Mortgagee may
be represented by attorneys selected by Mortgagee, and all sums
paid by Mortgagee in connection with such action or proceeding
(including, without limitation, attorneys’ fees and
disbursements) shall, on demand, be immediately due from Mortgagor
to Mortgagee and the same shall be added to the Obligations and
shall be secured by this Mortgage.
(d) Notwithstanding
any taking by condemnation or eminent domain, closing of, or
alteration of the grade of, any street or other injury to or
decrease in value of the Property by any public or quasi-public
authority or corporation, the Obligations shall continue to bear
interest at the rate payable pursuant to the Note until the Award
shall have been actually received by Mortgagee, and any reduction
in the Obligations resulting from the application by Mortgagee of
the Award shall be deemed to take effect only on the date of such
receipt.
Section 2.8
Restoration . If: (a) the Improvements or Accessories shall
be damaged or destroyed, in whole or in part, by fire or other
casualty, or by any taking in condemnation proceedings or the
exercise of any right of eminent domain; and (b) Mortgagee releases
or agrees to release to Mortgagor the proceeds of any insurance
payable to Mortgagee or the proceeds of the Award, less any
expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by Mortgagee in
obtaining same, and upon conditions satisfactory to Mortgagee; then
Mortgagor shall promptly restore, replace or rebuild the same to as
nearly as possible the value, quality and condition they were in
immediately prior to such fire or other casualty or taking, with
such alterations or changes as may be approved in writing by
Mortgagee. Mortgagor shall give immediate notice to Mortgagee of
any damage or destruction to the Property by fire or other
casualty.
Section 2.9
Deposits for Impositions and Insurance . Notwithstanding
anything to the contrary contained in any of the Loan Documents,
upon the occurrence of an Event of Default, Mortgagee may require
Mortgagor to deposit with Mortgagee on the first day of each month
an amount equal to one twelfth (1/12th) of the sum of
(collectively, the “Annual Payments”); (i) the
aggregate annual payments for the Impositions; (ii) the annual
insurance premiums on the policies of insurance required to be
obtained and kept in force by Mortgagor under this Mortgage; and
(iii) all other periodic charges (other than interest and principal
under the Note) arising out of the ownership of the Property or any
portion thereof which are or with notice or the passage of time or
both will become a lien against the Property or any part thereof.
In addition, upon demand by Mortgagee at any time and from time to
time, Mortgagor shall deposit with Mortgagee such sum of money
which, together with such monthly installments, shall be sufficient
to pay all of the Annual Payments at least forty-five (45) days
prior to the due date thereof. If the amount of any of the Annual
Payments are not ascertainable at the time any deposit is required
to be made, the deposit shall be made on the basis of
Mortgagee’s estimate thereof, which Mortgagee may change from
time to time. The funds so deposited with Mortgagee shall, provided
that no Default shall have occurred under this Mortgage, be applied
in payment of all of the Annual Payments when due to the extent
that Mortgagor shall have deposited funds with Mortgagee for such
purpose. In the event of any Default the funds deposited with
Mortgagee may, at the option of Mortgagee, be retained and applied
toward the payment of any or all of the Obligations, in such order
of priority as Mortgagee shall determine, but no such application
shall be deemed to have been made by operation of law or otherwise
until actually made by Mortgagee. The whole of the Obligations
shall become due and payable at the option of Mortgagee after the
failure of Mortgagor to deliver payment of any of such deposits or
after the failure of Mortgagor to deliver to Mortgagee, within ten
(10) days after request by Mortgagee, a statement certified by an
authorized officer of Mortgagor, specifying the current amounts of
all of the Annual Payments. At any time when deposits are required
to be made under this Section 2.9 , Mortgagor shall furnish
Mortgagee with a bill for each of the Annual Payments and/or such
other documents necessary for their payment at least forty-five
(45) days prior to the date they first become due. Upon an
assignment of this Mortgage, Mortgagee shall have the right to pay
over the balance of such deposits in its possession which have not
been applied to the Obligations to the assignee, and thereupon
Mortgagee shall be completely released from all liability with
respect to such deposits and Mortgagor shall look solely to the
assignee in reference thereto. The provisions of the preceding
sentence shall apply to each and every assignment or transfer of
such deposits to a new assignee.
Mortgagee agrees not
to exercise its rights under this Section provided that no Default
has occurred and provided that Mortgagor has at all times fully,
faithfully and timely complied with all of the provisions of
Sections 2.5 and 2.6 of this Article. Nothing contained
herein shall be deemed to extend the maturity date for the Loan
established in the Note.
Section 2.10
Maintenance and Alterations .
(a) Mortgagor shall
put, keep and maintain the Land, Improvements and Accessories, and
the sidewalks, curbs and alleys adjoining or abutting the same in
the same or better order, condition and repair as they were in on
the date hereof, and Mortgagor shall make or cause to be made, as
and when the same shall become necessary, all structural and
non-structural repairs, whether exterior or interior, ordinary or
extraordinary, foreseen or unforeseen in a good and workmanlike
manner. Mortgagor shall not commit or suffer any waste or
abandonment of the Land, the Improvements or Accessories, and shall
not demolish or remove or permit the demolition or removal of the
Improvements or Accessories, or any part thereof, without the prior
consent of Mortgagee in each instance.
(b) Mortgagor shall
not make any alterations to all or any part of the Improvements or
Accessories, or construct additions to all or any part of the
Improvements or construct any new or additional buildings on the
Property, without the prior consent of Mortgagee in each instance,
and then only upon terms and conditions satisfactory to
Mortgagee.
Section 2.11
Compliance with Laws .
(a) Mortgagor shall
promptly comply with, or cause to be complied with, all present and
future laws, statutes, ordinances, rules, regulations and other
requirements of all governmental authorities whatsoever having
jurisdiction of or relating to all or any part of the Property and
the sidewalks, curbs and alleys adjoining or abutting the Land, and
the condition, repair, maintenance, use and occupation thereof if
non-compliance therewith would result in imposition of any fine,
penalty, lien or criminal liability on Mortgagor or the Property,
or would result in commencement of proceedings for foreclosure or
forfeiture of Mortgagor’s interest in the Property; and
Mortgagor shall promptly make, or cause to be made, all changes,
alterations and improvements to the Property necessary to comply
with all such present and future laws, statutes, ordinances, rules,
regulations and other requirements to the extent aforesaid.
Mortgagor shall operate the Property in compliance with all
applicable laws, statutes, ordinances, rules, regulations and other
legal requirements. Mortgagor shall not initiate, support, assist
or acquiesce in any change in the zoning classification of the
Property or any part thereof, without the prior consent of
Mortgagee.
(b) Mortgagor shall
promptly perform and observe, or cause to be performed and
observed, all of the terms, covenants and conditions of all
instruments of record affecting the Property, non-compliance with
which may affect the security of this Mortgage, or shall impose any
duty or obligation upon Mortgagor or any tenant or other occupant
of the Property or any part thereof, and Mortgagor shall do or
cause to be done all things necessary to preserve intact and
unimpaired any and all easements, appurtenances and other interests
and rights in favor, or of constituting any portion of, the
Property.
(c) Notwithstanding
anything to the contrary contained herein, Mortgagor shall not use
or permit the use of the Property in any manner which would impair
or adversely affect the value or utility of the Property or
increase the risk of fire or other casualty.
Section 2.12
Leasing .
(a) Mortgagor shall
not, without Mortgagee’s prior approval in each instance,
which approval shall not be unreasonably withheld or delayed: (i)
enter into or change, amend or modify, in any manner whatsoever,
any Lease, License or other agreement for the rental or occupancy
of all or any portion of the Property (each a “Lease”);
(ii) terminate or cancel, or accept a surrender or suffer or permit
any cancellation, termination or surrender or suffer or permit any
cancellation, termination or surrender of, any Lease, in any manner
whatsoever or (iii) receive, collect or accept, or permit the
receipt, collection or acceptance of, any prepayment of rent or
other charges under any Lease for more than one month, except that
Mortgagor may, at the time of the execution of any Lease, accept
rent security deposits, which shall be held by Mortgagor in
accordance with Subsection 2.12(b) hereof.
(b) Mortgagor shall
at all times fully and promptly comply with, keep and perform all
of the terms, covenants, provisions and conditions of any and all
Leases on the part of the landlord thereunder to be complied with,
kept and performed, and will not do or permit anything to be done
which will constitute a breach of any of the terms, covenants,
provisions and conditions of any of such Leases. Mortgagor shall
enforce the performance and observance of each and every term,
covenant, provision and condition of each and every Lease to be
performed or observed on the part of the tenant thereunder.
Mortgagor shall give prompt notice to Mortgagee of: (i) any notice
received by Mortgagor of any default by the landlord or the lessee
under any Lease; (ii) the commencement of any action or proceeding
by any tenant or lessor the purpose of which shall be the
cancellation of any Lease or a diminution or abatement of the rent
payable thereunder; or (iii) the interposition by any tenant of any
defense or counterclaim in any action or proceeding brought by
Mortgagor against such tenant; and Mortgagor will cause a copy of
any process, pleading or notice received or served by Mortgagor in
reference to any such action, defense or claim to be promptly
delivered to Mortgagee. Mortgagor shall hold in trust all security
deposits and advance rent given on account of any Lease, and
deposit such security in a bank or trust company and shall not
mingle such funds with other funds. Mortgagor shall repay or apply
such funds only in accordance with the provisions of the applicable
Leases.
Section 2.13
Assignment of Rents . Mortgagor hereby absolutely and
unconditionally assigns to Mortgagee all of Mortgagor’s
right, title and interest in and to each Lease whether now existing
or hereafter entered into, together with the room revenues,
occupancy charges, issues and profits (“Rents”) of each
such Lease as further security for the payment and performance of
the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Property for the purpose of collecting the same and to
let the Property, or any part thereof, and to apply said Rents
after payment of all necessary charges and expenses, on account of
the Obligations. This assignment and grant shall continue in effect
until the Obligations are fully paid and performed. Mortgagee
hereby waives the right to enter the Property for the purpose of
collecting Rents, and Mortgagor shall be entitled to collect,
receive and use said Rents until the occurrence of a Default under
this Mortgage. Mortgagor shall, from time to time after request by
Mortgagee, execute, acknowledge and deliver to Mortgagee, in form
satisfactory to Mortgagee, separate assignments confirming the
foregoing assignment. Mortgagee shall not be obligated to perform
or discharge any obligation or duty to be performed or discharged
by Mortgagor under any Lease or other agreement affecting all or
any part of the Property, and Mortgagor hereby agrees to indemnify
Mortgagee for and save it harmless from, any and all liability
arising from any such Lease or other agreement or any assignments
thereof, and no assignment of any such Lease or other agreement
shall place the responsibility for the control, care, management or
repair of all or any part of the Property upon Mortgagee, nor make
Mortgagee liable for any negligence in the management, operation,
upkeep, repair or control of all or any part of the Property
resulting in injury, death or property damage. Mortgagee or the
receiver shall be liable to account only for rents and profits
actually received by Mortgagee or the receiver as the case may
be.
Section 2.14
No
Claims Against Mortgagee .
(a) Nothing
contained in this Mortgage shall constitute any consent or request
by Mortgagee, express or implied, for the performance of any labor
or services or the furnishing of any materials or other property in
respect of the Property or any part thereof, or be construed to
permit the making of any claim against Mortgagee in respect of
labor or services or the furnishing of any materials or other
property or any claim that any lien based on the performance of
such labor or services or the furnishing of any such materials or
other property is prior to the lien of this Mortgage.
(b) If Mortgagor
shall request Mortgagee’s approval or consent to any matter
and Mortgagee shall fail or refuse to give such consent or
approval, Mortgagor shall not be entitled to any damages for any
withholding or delay of such approval or consent by Mortgagee, it
being intended that Mortgagor’s sole remedy shall be an
action for injunction or specific performance and that such remedy
shall be available only in those cases where Mortgagee shall have
expressly agreed in writing not to unreasonably withhold its
consent or approval or where as a matter of law Mortgagee may not
unreasonably withhold its consent or approval.
Section 2.15
Mortgagee’s Right to Perform Mortgagor’s
Covenants .
(a) If Mortgagor
shall fail to fully and promptly pay, perform or observe any of the
Obligations prior to the expiration of any applicable grace period,
then, in any such event, Mortgagee may, at its option, but without
any obligation to do so, and without waiving or releasing Mortgagor
from any of the Obligations, pay any Obligation or cost or perform
any Obligation or act or take such action as Mortgagee deems
necessary or desirable in order to cause such Obligation to be
paid, performed or observed, as the case may be. Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Property or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for
such purpose. Mortgagee may pay and expend such sums of money as
Mortgagee, in its sole discretion, deems necessary or desirable for
any such purpose, and Mortgagor hereby agrees to pay to Mortgagee,
on demand, all such sums so paid or expended by Mortgagee, together
with interest thereon from the date of each such payment or
expenditure at the Default Rate established in the Note
(hereinafter, the “Default Rate”). Any interest which
has been paid by Mortgagor to Mortgagee pursuant to this
Section 2.15 in excess of the maximum interest rate
permitted by law shall be deemed payment in reduction of the
principal amount of the Obligations. All sums paid or expended by
Mortgagee pursuant to this Section 2.15 , and the interest
thereon, shall be added to and included in the Obligations and
shall be secured by the lien of this Mortgage.
(b) Mortgagor hereby
irrevocably appoints Mortgagee its true and lawful attorney-in-fact
in its name or otherwise, to do any and all acts and to execute any
and all documents which may be reasonably necessary or, in the
opinion of Mortgagee, desirable to preserve any rights of Mortgagor
in, to or under the Leases or to effectuate any rights of Mortgagee
under this Section 2.15 or contained elsewhere in this
Mortgage. The foregoing power of attorney is coupled with an
interest.
Section 2.16
Certificates of Mortgagor . Mortgagor, upon request of
Mortgagee, shall certify to Mortgagee or to any proposed assignee
of this Mortgage, by an instrument in form satisfactory to
Mortgagee, duly acknowledged, the amount then owing on the
obligations, the date to which any interest thereon has been paid,
and whether any offsets or defenses exist against payment thereof
or performance of any Obligation, within five (5) days if the
request is personally delivered, or within seven (7) days if the
request is made by mail. Mortgagee and any proposed assignee of
this Mortgage shall have the right to rely on such
certification.
Section 2.17
Inspection and Financial Reports . Mortgagee and its
authorized agents and employees shall have the right, at
Mortgagee’s option, to enter into the Property at all
reasonable times for the purpose of inspecting the same. Mortgagor
will furnish to Mortgagee, within thirty (30) days after a request
therefor, a detailed statement in writing, covering the period of
time specified in such request, showing all income derived from the
operation of the Property, and all disbursements made in connection
therewith, and containing a list of the names of all tenants and
occupants of the Property, the portion or portions of the Property
occupied by each such tenant and occupant, the rent and other
charges payable under the terms of their leases or other agreements
and the period covered by such leases or other agreements.
Section 2.18
Accounting and Other Information . Mortgagor will keep books
and records of account in accordance with generally accepted
accounting principles, in which full, true and correct entries
shall be made of all dealings and transactions relative to
Mortgagor and the Property. Said books and records of account shall
be made available to Mortgagee, at an office of Mortgagor and shall
be open to the inspection of Mortgagee and its accountants and its
other duly authorized representatives at regular business hours.
Mortgagor further covenants that it will, within a reasonable time
after any request by Mortgagee, furnish or cause to be furnished to
Mortgagee such other information with respect to Mortgagor or the
Property as Mortgagee may from time to time reasonably request.
Section 2.19
Assignment . This Mortgage is assignable by Mortgagee
without notice to Mortgagor, and any assignment of the same by
Mortgagee shall operate to vest in such assignee the same right,
title and interest as was vested in Mortgagee and all rights and
powers herein conferred, and to release mortgagee from any further
obligation or liability hereunder.
Section 2.20
Due on Sale .
(a) To the extent
permitted by law, the Property shall not be sold, transferred or
conveyed, in whole or in part, whether voluntarily or
involuntarily, by operation of law or otherwise, nor shall
Mortgagor lease the entire premises, without, in each instance, the
prior written consent of Mortgagee. No mortgage, deed of trust,
lien or other encumbrance shall be made or filed against or with
respect to the Property, without the prior written consent of
Mortgagee, except for new advances to Mortgagor in connection with
a loan in the combined amount of up to Twenty Five Million
($25,000,000) Dollars to Standford International Bank and Resorts
Funding Group, LLC both of whom are current stockholders and
investors of Mortgagor; provided, however, that any such loan to
Standford International Bank and Resorts Funding Group, LLC shall
be subordinate to the Loan and Standford International Bank and
Resorts Funding Group, LLC shall execute a Subordination Agreement
in form and with content satisfactory to Mortgagee, in the form
attached hereto as Exhibit D. No conditional bill of sale or
chattel mortgage shall be made or filed against any Accessories
without the prior written consent of Mortgagee. If any such
conditional bill of sale or chattel mortgage is made or filed with
or without Mortgagee’s prior written consent, then after the
occurrence of a Default all right, title and interest of Mortgagor
in and to all deposits and payments made thereon are hereby
assigned to Mortgagee.
(b) If Mortgagor
enters into an installment sale contract or sells, conveys,
alienates, assigns, mortgages or transfers the Property, or any
part thereof or interest therein in any manner, except the
Permitted Transfer (as defined below), or leases all or
substantially all of the Property or the Improvements, whether
voluntary or involuntary, or by operation of law or otherwise, then
Mortgagee shall have the right, at its option, at any time
thereafter to declare the Obligations immediately due and payable.
No waiver of this right shall be effective, nor shall any delay in
the exercise thereof operate as a waiver thereof, unless Mortgagee
shall have executed and delivered to Mortgagor a written waiver of
such right.
(c) Any sale,
assignment, lease, transfer, pledge, or other disposition, whether
voluntary or involuntary, by operation of law or otherwise, of any
partnership, membership or other ownership interest or shares of
stock in Mortgagor, shall be deemed to be a transfer of the
Property for the purposes of this Section; provided, however, that
upon reasonable notice to Mortgagee, American Leisure Holdings,
Inc. shall be permitted to transfer shares of capital stock to a
public company to be listed on the Alternative Investment Market in
London, England (“Permitted Transfer”).
(d) On the terms and
subject to the conditions set forth in this Subsection, within
twenty (20) days after (i) receipt by Mortgagee of
Mortgagor’s written request and (ii) Mortgagor’s
compliance with the terms and subject to the conditions set forth
in this Subsection, portions of the Property (including but not
limited to proceeds of any sale permitted under this Subsection and
any other Collateral with respect to the Property encumbered by any
other Loan Document) shall be released from the lien of this
Mortgage (and UCC-3 partial release statements with respect to such
released portion shall be delivered and upon the release of the TDS
Remainder Parcel a release or termination of any construction
easements effecting such parcel):
(i) As of the time
of Mortgagor’s request and at the time of such transfer, no
Default has occurred hereunder and remains uncured (nothing herein
being deemed to extend any cure period established herein), and no
event has occurred that would constitute a Default with the giving
of notice, the passage of time or both;
(ii) The release is
to occur prior to the Maturity Date;
(iii) With respect to
each portion of the Property to be released, Mortgagor has obtained
all subdivision and other consents, permits and approvals necessary
to lawfully release or convey such portion;
(iv) After giving
effect to such release and conveyance, the remainder of the
Property will continue to have adequate ingress and egress, and
adequate capacity for all utilities necessary for development shall
be available at the boundary thereof;
(v) The instrument
to effect such release and conveyance shall be prepared and
recorded at no cost to Mortgagee;
(vi) In
Mortgagee’s reasonable discretion, the loan-to-value ratio
based on the “as improved” disposition value of the
remaining Property as determined pursuant to Section 2(j) of the
Loan Agreement shall not be less than sixty percent (60%);
(vii) Simultaneous
with the delivery of such release, Mortgagor shall pay to Mortgagee
release consideration (“Release Price”) equal to
$50,000 for each townhouse and condominium unit to be released from
the Mortgaged Property; provided , however , that the
Release Price for each townhouse and condominium unit located on
the Mortgaged Property after the release of the one hundred and
sixtieth (160 th )
unit (a “Sale Unit”) shall be $50,000 at the time of
the release plus an additional $30,000 (for a total
payment towards the Loan of $80,000) when such Sale Unit is sold to
an affiliate of Borrower (“Affiliate”). The such
Release Price shall be applied, upon payment and receipt thereof,
in reduction of the outstanding principal amount of the
Obligations;
(viii) Simultaneous
with delivery of the Release Price, Mortgagor shall deliver an
update endorsement to the policy of title insurance delivered at
the closing of the Loan, confirming no change to the Property other
than the release of the parcel(s);
(ix) With respect to
the release of each Sale Unit, (a) evidence that such Sale Unit
shall be transferred to an Affiliate, (b) an assignment of the
proceeds of the sale of such Sale Unit (not to exceed $30,000)
after the payment of the first mortgage on such Sale Unit, and (c)
a pledge of the ownership interest in the Affiliate, subject to any
assignment to the first mortgagee, each in form and with substance
satisfactory to Mortgagee in its reasonable discretion.
Notwithstanding the foregoing, nothing contained herein shall be
deemed to grant Mortgagee any rights in the real property which has
been released hereto; and
(x) Unless the
Property is sold in its entirety, simultaneous with delivery of
such release, Mortgagor shall deliver an update endorsement to the
policies of title insurance delivered at closing of the Loan
confirming no change other than the release of such portion of the
Property and the release of any other portions previously released
pursuant to this Subsection 2.20(d) .
(e) Notwithstanding
anything contained herein to the contrary, a portion of the
Property owned by TDS Amenities, Inc. as described on Exhibit C
(the “TDS Property”), as determined by Lender in its
reasonable discretion, shall be released from the lien of this
Mortgage within twenty (20) days after receipt by Mortgagee of
Mortgagor’s written request, provided (i) Mortgagor is not in
default hereunder or under any other Loan Document(s), (ii) receipt
by Mortgagee of documentation evidencing that the TDS Property has
been subdivided in a manner consistent with the documentation that
is submitted to and approved by Mortgagee prior to the release of
the lien, and (iii) no event has occurred which with the passage of
time and/or the giving of notice would constitute a default
hereunder or under any other Loan Document(s). Notwithstanding the
foregoing, the Release Price shall not apply to the release of the
lien on the TDS Property.
(f) Notwithstanding
anything contained herein to the contrary, the balance of the
Property owned by TDS Amenities, Inc. which is not the TDS Property
(the “TDS Remainder Property”) shall be released from
the lien of this Mortgage within twenty (20) days after receipt by
Mortgagee of Mortgagor’s written request, provided (i)
Mortgagor is not in default hereunder or under any other Loan
Document(s), (ii) no event has occurred which with the passage of
time and/or the giving of notice would constitute a default
hereunder or under any other Loan Document(s), (iii) receipt by
Mortgagee of documentation evidencing that the swimming pool on the
TDS Remainder Property has been constructed, to Mortgagee’s
reasonable satisfaction, in accordance with the plans and
specifications provided to Mortgagee by Mortgagor and the contract
submitted to Mortgagee from Weller Pools, (iv) receipt by Mortgagee
of such other documents as may be required by Mortgagee in its sole
discretion, (v) receipt by Mortgagee of written evidence that the
owners of all or any portion of the remainder of the Property shall
have access to, and the ability to use, the swimming pool
constructed on the TDS Remainder Property pursuant to easements
established by the Mortgagor and reasonably acceptable to
Mortgagee, and (vi) receipt by Mortgagee of a Release Price in the
amount of Two Million Nine Hundred Thousand ($2,900,000)
Dollars.
ARTICLE
III.
RESPECTING
DEFAULTS AND REMEDIES OF MORTGAGEE
Section 3.1
Default . The term “default,” and the term
“Event of Default,” as used herein, shall mean the
occurrence of any one or more of the following events, subject to
any applicable notice and cure periods:
(a) a default in the
payment of any installment of principal or interest under the Note;
or
(b) a default in the
payment of any other sum under the Note; or
(c) a default in the
payment of any other sum when due hereunder or under any other Loan
Document; or
(d) default in the
payment of any of the Impositions, any Assessment, or
(e) default in
keeping in force the insurance which Mortgagor is required to
maintain under Section 2.6 hereof or in delivering or
assigning the insurance policies or renewals or certificates
thereof, or in reimbursing Mortgagee for premiums paid by it on
such insurance; or
(f) upon the actual
or threatened waste, removal, alteration or demolition of any part
of the Property; or
(g) default in
complying with Mortgagor’s obligations under
Section 2.12 hereof or upon the assignment by Mortgagor
of any Lease or of the whole or any part of the rents, income or
profits arising from the Property without the prior written consent
of Mortgagee, other than as permitted in the Loan Documents; or
(h) if Mortgagor or
any guarantor of all or part of the Obligations becomes insolvent;
or
(i) if Mortgagor or
any guarantor generally does not pay its debts as they become due;
or
(j) if Mortgagor or
any guarantor makes an assignment for the benefit of creditors;
or
(k) if Mortgagor or
any guarantor calls or causes to be called a meeting of creditors
for the composition of debts; or
(l) if there shall
be filed by or with the consent or authorization of Mortgagor a
petition in bankruptcy for liquidation or for reorganization, or a
custodian, receiver or agent is appointed or authorized to take
charge of its properties, or Mortgagor authorizes any such action;
or
(m) if there shall
be filed against Mortgagor or any guarantor a petition in
bankruptcy, for liquidation, or for reorganization, or a custodian,
receiver, or agent is appointed or authorized to take charge of its
properties and Mortgagor or such guarantor, as the case may be, has
not consented to or authorized such action and such action is not
dismissed within sixty (60) days; or
(n) the date of
taking of a condemnation if there is an exercise of the right of
condemnation or eminent domain in respect of all or a substantial
part of the Property; or
(o) upon Mortgagor
directly or indirectly creating, suffering or permitting to be
created or to stand against the Property or any porti
