Prepared by and
return to:
James S. Groh,
Esq.
HOLLAND & KNIGHT LLP
50 North Laura Street
Suite 3900
Jacksonville, Florida 32202
SECOND MORTGAGE, ASSIGNMENT OF
RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS SECOND
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 DARRYL K. HORNE, an individual, whose address is 1732
Brookside Lane, Vienna, VA 22182 (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 senior
lien of the First Mortgage, as such term is defined in
Section 6 herein; 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; and that the Mortgagor hereby fully warrants unto the
Mortgagee the title to said Mortgaged Property and will defend the
same against the lawful claims and demands of all persons
whomsoever.
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 Working Capital Commercial Note (the
“ Note ”) of even date herewith, made by the
Mortgagor and payable to the Mortgagee in the principal sum of FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00), 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 14 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 paying, 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.
2
6. That this
Mortgage is a second mortgage, subject and subordinate to that
certain First Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing of even date herewith, granted by Mortgagor to
Susott Family Limited Partnership, a California limited
partnership, securing an original principal indebtedness of
$1,000,000.00 (the “ First Mortgage ”).
Mortgagor covenants and agrees to timely comply with and abide by
all of the terms and conditions of the First Mortgage and the
promissory note(s) secured thereby. Mortgagor further agrees that a
default under the First Mortgage or the promissory note(s) secured
thereby shall constitute a default under this Mortgage, and if
Mortgagor shall fail to cure any default under the First Mortgage
or the promissory note(s) secured thereby within the time specified
therein, such time being of the essence with respect to this
Mortgage, the Mortgagee may, at its sole option, declare all sums
secured by this Mortgage to be immediately due and payable, without
demand or notice. Mortgagor covenants and agrees that Mortgagor
will not enter into or accept any modification or extension of, or
accept any future or additional advance under, the First Mortgage
without the prior written consent of Mortgagee, and any breach of
such covenant will constitute a default under this Mortgage,
whereupon Mortgagee may, at its sole option, declare all sums
secured by this Mortgage to be immediately due and payable, without
demand or notice.
7. 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 incu
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