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THE FOLLOWING FORM LOAN DOCUMENTS ARE PROVIDED AS COURSE MATERIALS FOR THE SEMINAR: UNDERSTANDING COMMERCIAL LOAN DOCUMENTATION.
Copyright © 2016, Douglas L. Waldorf, JD, MBA
PROMISSORY NOTE
|Borrower: |_________________ |
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|Borrower's Address: |_________________ |
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|Principal Amount: |$________________ |
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|Date of Note: |________ |
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|Maturity Date: |________ |
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|Interest Rate: |The Interest Rate shall be a fixed rate equal to ____%. |
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|First Payment Date: |_____________, 20__ |
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|Bank: |__________________ |
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|Bank's Address: |__________________ |
| |__________________ |
FOR VALUE RECEIVED, Borrower, jointly and severally, does hereby covenant and promise to pay to the order of the Bank, or to its successors or assigns, at its address set forth above, or at such other place as the Bank may designate to the Borrower in writing from time to time, in legal tender of the United States, the Principal Amount together with interest at the Interest Rate on the unpaid balance of the Principal Amount and all other sums due hereunder.
1. Definitions
(a) Loan Agreement. For purposes hereof, "Loan Agreement" shall refer to the Commercial Loan Agreement that evidences certain terms and conditions of the Loan.
(b) Loan Documents. For purposes hereof, "Loan Documents" shall refer, collectively, to this Note and the Loan Agreement, the Mortgage, Assignment of Rents, Leases and Profits, the Security Agreement, the Guaranty(s) or any other document now or hereafter executed in connection with the loan evidenced by this Note, and all renewals thereof and modifications thereto.
2. Disbursement of Note Proceeds
Term Loan. The proceeds of this Note shall be disbursed at Date of Note or as near as possible thereto in accordance with the terms of the Loan Agreement of even date.
3. Repayment Terms
(a) Principal and Interest Payment. Borrower shall make monthly principal and interest payments monthly each in the amount of $_______________, commencing on the First Payment Date and continuing on the same day of each month thereafter until the Maturity Date at which time all sums outstanding hereunder shall be due and owing. Each such installment payment, including the amount of each payment credited toward repayment of principal, shall be calculated by Bank whose method of determination shall be final. Installment payments shall be based upon a ten (10) year amortization period and using an actual/360 basis for interest determination.
(b) Method of Payments. All payments shall be made in lawful currency of the United States of America which shall be legal tender in payment of all debts, public and private, at the time of payment and shall be tendered to Bank at the address set forth above or at such other address as Bank may from time to time designate. All payments shall be made by direct debit from Borrower's accounts held by Bank. Payment invoices will be sent on a date (the "billing date") which is prior to each payment due date. If this Note is booked near or after the billing date for the first scheduled payment, Bank may, in its sole discretion, defer each scheduled payment date and/or the maturity date by one or more months. Notwithstanding the application of payment provided in this section of this Note, unless otherwise agreed, all sums received from Borrower may be applied to interest, fees, principal, or any other amounts due to Bank in any order at Bank's sole discretion.
(c) Direct Debit Borrower agrees to maintain Borrower's deposit accounts with Bank from which Bank is authorized to debit loan payments, fees and such other sums as may be payable under the Note or related loan documents as they become due with respect to this loan and any renewals and extensions of this loan, and Borrower shall keep such deposit accounts in good standing at all times.
(d) Prepayment. This Note may be prepaid in whole or in part at any time without fee, premium or penalty. Any partial prepayment shall be applied first to any unpaid late fees or other charges or past due amounts hereunder and shall not postpone the due date of any subsequent periodic payments or the Maturity Date, or change the amount of any periodic payments otherwise due, unless Bank shall otherwise agree in writing. All prepayments of principal shall be applied on the most remote principal installment or installments then unpaid.
(e) Late Charges. If any payments are not timely made, Borrower shall also pay to Bank a late charge equal to 5% of each payment past due for 10 or more days. This late charge shall not apply to payments due at maturity or by acceleration hereof. Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a waiver of Bank's right to collect such late charge or to collect a late charge for any subsequent late payment received.
(f) Maturity Date. The then outstanding principal balance, all accrued but unpaid interest thereon and all late charges and other fees and charges hereunder shall be due and payable in full on the Maturity Date as set forth above.
4. Collateral
(a) Mortgage. This Note is secured by a lien against real and personal property as evidenced by a mortgage of even date and given by Borrower to Bank which encumbers real property described therein and located at ______________________, ___________ County, Florida (“Mortgage”). Borrower agrees that the Mortgage is a Loan Document and any default therein shall be a default under the terms of this Note.
(b) Assignment of Rents and Leases. The Note shall also be secured by an assignment of rents, leases and profits from the property encumbered by the Mortgage,
5. Default and Acceleration
(a) Default. Any failure of Borrower to repay any sums as they come due under this Note or to comply with any term, covenant, or condition of this Note, or the existence or occurrence of any event which constitutes a default under any Loan Document shall be deemed, at the option of Bank, a default under this Note ("Default").
(b) Acceleration. Upon the occurrence of a Default, without notice or opportunity to cure, Bank may declare the then outstanding principal and all accrued but unpaid interest and other charges hereunder immediately due and payable without presentation, demand, protest or notice of any kind, all of which are hereby waived by Borrower and upon acceleration and thereafter this Note shall bear interest at the Default Rate, hereinafter defined, until all indebtedness evidenced hereby has been paid in full. Bank may thereafter pursue all remedies available to it under applicable law and/or equity to collect the sums due under, or otherwise enforce, the Note and all other Loan Documents including but not limited to enforcement of any mortgage or security interest in any collateral for this Note.
(c) Default Interest Rate. Commencing on the first date of occurrence of a Default as determined by Bank and continuing thereafter until all sums due hereunder are fully paid, the unpaid indebtedness then evidenced by the Note or other Loan Documents shall bear interest at a fixed rate equal to the maximum rate then permitted under applicable law. This default rate of interest shall apply post judgment on any money judgment obtained by Bank on the Note.
(d) Application of Payments after Default. All sums received by Bank for application to the Note after a Default may be applied by Bank first to late charges, expenses, legal fees and collection costs, and other costs, and next to interest, principal, and other amounts owing to Bank in connection with the Note in said order or in any other order selected by Bank in its sole discretion. Borrower expressly agrees and consents that Bank may, in its discretion, accept any payments after a Default, including partial payments or payments of sums less than the full amount due under the Note. Bank's acceptance of any such payment or payments shall not be deemed a waiver of Bank's right to accelerate the Note or pursue the collection of the Note or the enforcement of any of Bank's rights against the Collateral which secures the Note.
(e) Expenses. In the event Bank seeks to enforce any of its rights under this Note or other Loan Documents, Borrower will pay to Bank, in addition to principal, interest and other charges due under this Note, all costs of collection or enforcement, including reasonable attorneys' fees, paralegals' fees, legal assistants' fees, costs and expenses, whether incurred with respect to collection, pre-litigation, litigation, bankruptcy proceedings, interpretation, dispute, negotiation, trial, appeal, defense of actions instituted by a third party against Bank arising out of or related to the Note or Loan Documents, enforcement of any judgment based on this Note, or otherwise, whether or not a suit to collect such amounts or to enforce such rights is brought or, if brought, is prosecuted to judgment.
(f) Setoff. Borrower acknowledges and agrees that Bank shall in the event of any default hereunder or under any of the loan documents have the right to set off any sums of Borrower maintained in any account of Borrower’s held by Bank, and apply the sums therein toward payment of the Note or any sums due hereunder, all without notice or demand to Borrower.
6. Miscellaneous Provisions
(a) Waiver. All persons now or at any time liable for payment of this Note, whether directly or indirectly, including, without limitation, any persons guaranteeing payment of this Note, hereby waive presentment, protest, notice of protest and dishonor. Borrower expressly consents to any extensions and renewals, in whole or in part, to the release of any or all of the persons guaranteeing this Note or pledging any collateral security or portions thereof, given to secure this Note, and all delays in time of payment or other performance which Bank may grant, in its sole discretion, at any time and from time to time without limitation all without any notice or further consent of Borrower, and any such grant by Bank shall not be deemed a waiver of any subsequent delay or any of Bank's rights under this Note, the Loan Agreement or the Security Documents.
(b) Usury. In no event shall any provision of this Note, the Loan Agreement or the Security Documents permit the collection of any interest which would be usurious under the laws of the State of Florida. If any such interest in excess of the maximum rate allowable under applicable law has been collected, Borrower agrees that the amount of interest collected above the maximum rate permitted by applicable law, together with interest thereon at the rate required by applicable law, shall be refunded to Borrower, and Borrower agrees to accept such refund, or, at Borrower's option, such refund shall be applied as a principal payment hereunder.
(c) Modification. This Note may not be changed orally, but only by an agreement in writing signed by Bank and Borrower.
(d) Applicable Law and Venue. This Note shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any disputes arising herefrom shall be proper in _________________ County, Florida, as determined by Bank.
(e) Successors and Assigns. As used herein, the terms "Borrower" and "Bank" shall be deemed to include their respective heirs, personal representatives, successors and assigns.
(f) Severability. In the event any one or more of the provisions of this Note shall for any reason be held to be invalid, illegal, or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Note operates or would prospectively operate to invalidate this Note, then and in any of those events, only such provision or provisions shall be deemed null and void and shall not affect any other provision of this Note. The remaining provisions of this Note shall remain operative and in full force and effect and shall in no way be affected, prejudiced, or disturbed thereby. In the event any provisions of this Note are inconsistent with the provisions of the Loan Agreement, the Assignment, or any other agreements or documents executed in connection with this Note, this Note shall control.
(g) Captions; Pronouns. Captions are for reference only and in no way limit the terms of this Note. The pronouns used in this instrument shall be construed as masculine, feminine, or neuter as the occasion may require. Use of the singular includes the plural, and vice versa.
(h) Business Day. If at any time Borrower is required to make a payment or to perform an obligation hereunder on a "day" or "business day", said day shall be deemed to refer to a banking day which shall be a day on which Bank is open for the transaction of business, excluding any national holidays, and any payment or performance which would otherwise be required on a day other than a banking day shall be timely performed in such instance, if performed on the next succeeding banking day. Notwithstanding such timely performance, interest shall continue to accrue hereunder until such payment or performance has been made.
(i) Waiver of Presentment. All parties to this Note, whether Borrower, principal, surety, guarantor or endorser, hereby waive presentment for payment, demand, protest, notice of protest, and notice of dishonor, and expressly agree jointly and severally to remain and continue bound for the payment of the principal and interest provided for by the terms of this Note, notwithstanding any extension or extensions of the time of, or for the payment of said principal or interest, or any change or changes in the amount or amounts agreed to be paid under or by virtue of the obligation to pay provided for in this Note, or any change or changes by way of release or surrender or substitution of any real property and collateral, or either, held as security for this Note, and waive all and every kind of notice of such extensions, change or changes, and agree that the same may be made without the joinder of the Borrower.
(j) Transfer of Loan. Bank may, at any time, sell, transfer or assign the Note, the related security instrument and any related loan documents, and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the "Securities"). Bank may forward to each purchaser, transferee, assignee, servicer, participant, or investor in such Securities or any Rating Agency (as hereinafter defined) rating such Securities (collectively, the "Investor") and each prospective Investor, all documents and information which Bank now has or may hereafter acquire relating to the Borrower, any loan to Borrower, or the property, whether furnished by Borrower, or otherwise, as Bank determines necessary or desirable. The term "Rating Agency" shall mean each statistical rating agency that has assigned a rating to the Securities.
| | |_________________, a _________________ |
| | |By:______________________________________ |
| | |_____________ |
| | |Its: __________ |
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FLORIDA DOCUMENTARY STAMP TAX REQUIRED BY LAW IN THE AMOUNT OF $__________.00 HAS BEEN PAID OR WILL BE PAID DIRECTLY TO THE DEPARTMENT OF REVENUE OR, IN THE EVENT THIS NOTE IS SECURED BY REAL PROPERTY, WILL BE PAID AT THE TIME OF RECORDING THE MORTGAGE WHICH EVIDENCES THE SECURITY.
Document prepared by:
__________________
__________________
MORTGAGE AND SECURITY AGREEMENT
This Mortgage and Security Agreement (the "Mortgage"), is executed this ____ day of __________, 2016, by
____________, a ________________
whose mailing address is ___________________________, hereinafter called "Mortgagor", which term as used herein in every instance shall include Mortgagor's successors, legal representatives and assigns, including all subsequent grantees, either voluntary by act of the parties or involuntary by operation of law, and given to:
____________, __________________,
whose mailing address is _______________________________________, hereinafter called "Mortgagee", which term as used herein in every instance shall include Mortgagee's successors, legal representatives and assigns, including all subsequent assignees, either voluntary by act of the parties or involuntary by operation of law.
1. GRANTING CLAUSE. This Mortgage is given for good and valuable consideration, and to secure the payment of an indebtedness in the total amount of __________________________ and 00/100 Dollars ($______________) lawful money of the United States of America, which sum is to be paid with interest thereon, according to a certain promissory note of even date herewith (the "Note") executed by_______________, a _______________, to the order of Mortgagee, Mortgagor does grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant, and confirm unto Mortgagee and grant a security interest to Mortgagee, its successors and assigns, in fee simple, the land and property described in Exhibit "A" hereto of which Mortgagor is now seized and possessed, together with all buildings and improvements owned by Mortgagor now or hereafter situated upon said property, and all fixtures, equipment, and other personal property owned by Mortgagor now or hereafter located in the buildings and improvements on said property which are used in the operation of the building, together with all additions thereto and replacements thereof; all of which is hereinafter referred to as "the Property", together with the following property and rights:
(a) All easements, rights of way, gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates, rights, titles, interests, privileges, tenements, hereditaments, and appurtenances whatsoever, in any way belonging, relating or appertaining to any of the property hereinabove described, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Mortgagor.
(b) All rents, profits, issues and revenue of the Property from time-to-time accruing, whether under lease or tenancies now existing or hereafter created, reserving unto Mortgagor, however, so long as Mortgagor is not in default hereunder, the right to receive and retain the rents, profits, issues and revenue therefrom.
(c) All judgments, awards of damages, settlements and payments, including interest thereon, and the right to receive the same, which may be made with respect to the Property as a result of the exercise of or the threat of the right of eminent domain, the alteration of the grade of any street, any other injury to or decrease in the value of the Property, or proceeds of insurance awards, to the extent of all amounts which may be secured by this Mortgage at the date of receipt of any such award or payment by Mortgagee, and of the reasonable attorney's fees, costs and disbursements incurred by Mortgagee in connection with the collection of such judgment, award or payment. Mortgagee in its sole discretion may require that any sums payable to Mortgagor arising out of the exercise or threatened exercise of the power of eminent domain with respect to the property or any portion thereof shall be applied to the indebtedness secured hereby. Any such application of proceeds to the indebtedness shall not extend or alter the terms of the Notes secured hereby. Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact to receive, endorse and collect any drafts for proceeds of a condemnation award or settlement.
(d) All machinery, apparatus, equipment, fittings, furniture, fixtures and personal property of every kind and nature whatsoever now or hereafter owned by Mortgagor and located in the buildings on the Property.
To have and to hold the above-described property unto Mortgagee, its successors and assigns, forever, subject, however, to the terms and conditions of this Mortgage.
The Mortgage shall continue to secure the full and prompt payment of the Note as same may be from time to time extended and renewed. "Note" includes all future amendments, modifications, renewals or substitutions of the Note and as set forth herein, the Mortgage shall further secure the Note as so amended, modified, renewed or substituted for from time to time. As such, should the Note at any time in the future be amended, modified, renewed or substituted, the Mortgage shall continue to secure the loan evidenced thereby and it shall not be necessary to execute any further modification or extension agreement of the Mortgage provided, however, nothing contained herein shall obligate the Mortgagee to agree to any further extension or modification in the future. If Mortgagor shall pay or cause to be paid to Mortgagee the principal and interest and other sums payable in respect to the Note secured hereby or otherwise due hereunder, at the times and in the manner stipulated therein and herein, all without any deduction or credit for taxes or other similar charges paid by Mortgagor, and shall keep, perform and observe all and singular the covenants and promises in the Note secured hereby, and any renewal, extension or modification thereof, and in this Mortgage expressed to be kept, performed and observed by and on the part of Mortgagor, all without delay, then this Mortgage, and all the properties, interest and rights hereby granted, bargained, sold, alienated, released, conveyed, and assigned, transferred, mortgaged, hypothecated, pledged, delivered, set over, warranted and confirmed, shall cease and be void. Mortgagor intends that this Mortgage shall also secure any other indebtedness of Mortgagor to Mortgagee, now or hereafter existing.
2. FUTURE ADVANCES. In addition to securing the indebtedness referred to above, the mortgage shall secure such future or additional advances as may be made by the Mortgagee at its option to the Mortgagor or the successor in title, for any purpose, provided that all those advances are to be made within 20 years from the date of this mortgage or within such lesser period of time as may be provided hereafter by law as a prerequisite for the sufficiency of actual notice or record notice of the optional future or additional advances as against the rights of creditors or subsequent purchasers for valuable consideration. The total amount of indebtedness secured by this mortgage may decrease or increase from time to time, but the total unpaid balance so secured at any one time shall not exceed the maximum principal amount of ___________________and 00/100 Dollars ($_______________), plus interest, any disbursements made for the payment of taxes, levies, or insurance on the property covered by the lien of this mortgage, together with interest on those disbursements, and increases to the principal balance as a result of negative amortization or deferred interest as provided in this mortgage or the indebtedness secured, and any advances or disbursements made under any construction loan agreement referred to in this mortgage, together with interest on such advances or disbursements. Nothing herein shall constitute a commitment by Mortgagee to make such advances. Any advances shall be made at Mortgagee's sole discretion.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES. Mortgagor, for itself, its successors and assigns, hereby represents unto and covenants and agrees with Mortgagee, its successors and assigns, as follows:
(a) Mortgagor warrants that it is indefeasibly seized with the absolute and fee simple title in and to the Property; that Mortgagor's title thereto is good and marketable; that it will own the personal property encumbered hereby free and clear of liens and claims; and Mortgagor has full power and lawful authority to grant, bargain, sell, convey, transfer and mortgage the same; and that this Mortgage is and will remain a valid and enforceable first lien on the Property unless otherwise hereinafter provided; and, unless otherwise hereinafter provided, said property is free and discharged from all liens, encumbrances, and claims of any kind, including taxes and assessments; and the Mortgagor hereby fully warrants the title to said property unto Mortgagee, and will defend the same against the lawful claims and demands of all persons whomsoever.
(b) Mortgagor will punctually pay the principal and interest and all other sums to become due in respect of the Note secured hereby at the time and place and in the manner specified in the Note, according to the true intent and meaning hereof, all in any coin or currency of the United States of America which at the time of such payment shall be legal tender for the payment of public and private debts.
(c) Mortgagor holds all right, title and interest of Mortgagor in and to all improvements, betterment, and replacements of, and all additions and appurtenances to, the Property, hereafter acquired by Mortgagor or constructed, assembled or placed by Mortgagor on the Property.
(d) Mortgagor shall pay and discharge before the same become delinquent, all taxes of every kind and nature (including real and personal property taxes and income, franchise, withholding, profits and gross receipts taxes), all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, and all other public charges whether of a like or different nature, imposed upon or assessed against it or the Property or any part thereof or upon the revenues, rents, issues, income and profits of the Property or arising in respect of the occupancy, use or possession thereof. Mortgagor will, upon the request of Mortgagee, deliver to Mortgagee receipts evidencing the payment of all such taxes, assessments, levies, fees, rents and other public charges imposed upon or assessed against it or the Property or the revenues, rents, issues, income or profits thereof.
(e) Mortgagor shall pay, from time-to-time, when the same shall become due, all lawful claims and demands of mechanics, materialmen, laborers, and others which, if unpaid, might result in, or permit the creation of, a lien on the Property 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 hereof shall be fully preserved, at the cost of the Mortgagor, without expense to Mortgagee.
(f) Mortgagor shall keep the improvements and personal property insured against loss or damage by fire, casualty, loss of rents and business interruption, and such other hazards as may be specified by Mortgagee for the benefit of Mortgagee. Such insurance shall be written in forms, amounts, and by companies as set forth herein.
(g) Mortgagor shall carry property damage insurance as set forth herein.
(h) Mortgagor shall keep adequate records and books of account in accordance with generally accepted accounting principles covering and relating to the property encumbered hereby and will permit Mortgagee, by its agents, accountants and attorneys, to visit and inspect the Property and examine its records and books of account as they relate to the property encumbered hereby and to discuss the finances and affairs of the property encumbered hereby with Mortgagor, and with the officers of Mortgagor, if a corporation, at such reasonable times as may be requested by Mortgagee.
(i) Deliver, or cause to be delivered to Mortgagee, financial statements, tax returns as set forth in the Loan Agreement executed in connection with the Note and Mortgage. Throughout the terms of this Mortgage, Mortgagor with reasonable promptness will deliver to Mortgagee such other information with respect to Mortgagor as Mortgagee may reasonably request from time to time.
(j) Mortgagor will not commit any waste on the Property or make any change in the use of the Property which will in any way increase any ordinary fire or other hazard arising out of construction or operation. Mortgagor will, at all times, maintain the improvements on the Property in good operating order and condition and will promptly make, from time-to-time, all repairs, replacements, additions and improvements in connection therewith which are needful or desirable to such end. The improvements shall not be removed, demolished or substantially altered, nor shall any personal property be removed without the prior written consent of Mortgagee, except where appropriate replacements free of superior title, liens and claims are immediately made of value at least equal to the value of the personal property removed.
(k) Mortgagor shall not execute an assignment of the rents or any part thereof from the Property unless such assignment shall provide that it is subordinate to the assignment contained in this Mortgage and any assignment executed pursuant hereto, or
(l) Mortgagor shall not accept prepayments of rent for more than two (2) months in advance, or prepayments in the nature of security in an amount in excess of two (2) month's rent, for the performance of the lessee thereunder, without the written consent of Mortgagee, or
(m) Mortgagor shall not in any other manner impair the value of the Property or the security of this Mortgage.
(n) Mortgagor will not execute any lease of all or a substantial portion of the Property excepting for the leasing of portions thereof in the normal course of business, and will at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all leases of the Property now or hereafter existing, on the part of the lessor thereunder to be kept and performed.
(o) Mortgagor shall furnish to Mortgagee, within fifteen (15) days after a request by Mortgagee to do so, a written rent schedule containing the names of all lessees of the Property, the terms of their respective leases, the space occupied, the lease expiration date and the rentals payable thereunder.
(p) Mortgagor shall cause the Property to at all times be in strict compliance with applicable federal, state and local laws and regulations including, but not limited to compliance with the Americans with Disabilities Act of 1990 (ADA).
4. HAZARDOUS MATERIALS. Mortgagor shall cause the Property to be at all times in compliance with all state and federal laws governing hazardous waste.
(a) Hazardous Waste. "Hazardous Waste" shall mean and include those elements or compounds which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated by Congress or the EPA or defined by any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material as now or at any time in effect.
(b) Representations and Warranties. Mortgagor specifically represents and warrants that the use and operation of the Property comply with all applicable environmental laws, rules and regulations, including, without limitation, the Federal Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation Liability Act of 1980 and all applicable state laws, and all amendments and supplements thereto and Mortgagor shall continue to comply therewith at all times. Specifically, and without limiting the generality of the foregoing, Mortgagor shall not, in the future, permit any Hazardous Waste to be located or stored in, upon or at the Property, and there are not now nor shall there be at any time any releases or discharges from the Property. Nothing herein shall be deemed to prevent Mortgagor or any tenant in possession of the Property from storing medical waste thereon in a manner customary to medical practices and in accordance with applicable law, rules and regulations.
(c) Indemnification.
(i) Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee harmless from and against any and all losses, liabilities, including strict liability, damages, injuries, expenses, including attorneys' fees for attorneys of Mortgagee's choice, costs of any statement or judgment and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Mortgagee by any person or entity or governmental agency for, with respect to, or as a direct or indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from the Property of any Hazardous Waste (including, without limitation, any losses, liabilities, including strict liability, damages, injuries, expenses, including attorneys' fees for attorneys of Mortgagee's choice, costs of any settlement or judgment or claims asserted or arising under the Comprehensive Environmental Response, Compensation and Liability Act, any federal, state or local "Superfund" or "Superlien" laws, and any and all other statutes, laws, ordinances, codes, rules, regulations, orders or decrees regulating (with respect to or imposing liability, including strict liability) substances or standards of conduct concerning any hazardous waste), regardless of whether within Mortgagor's control.
(ii) The aforesaid indemnification and hold harmless agreement shall benefit Mortgagee from the date hereof and shall continue notwithstanding payment, release or discharge of this Mortgage or the Indebtedness, and, without limiting the generality of the foregoing such obligations shall continue for the benefit of Mortgagee and any subsidiary of Mortgagee during or following any possession of the Property thereby or any ownership of the Property thereby, whether arising by foreclosure or deed in lieu of foreclosure or otherwise, such indemnification and hold harmless agreement to continue forever.
(d) Notice of Environmental Complaint. If Mortgagor shall receive any notice of: (i) the happening of any material event involving the spill, release, leak, seepage, discharge or cleanup of any Hazardous Waste on the Land or in connection with Mortgagor's operations thereon; or (ii) any complaint, order, citation or material notice with regard to air emissions, water discharges or any other environmental, health or safety matter affecting Mortgagor (an "Environmental Complaint") from any person or entity, then Mortgagor immediately shall notify Mortgagee orally and in writing of said notice.
(e) Mortgagee's Reserved Rights. In the event of receipt of an Environmental Complaint, Mortgagee shall have the right, but not the obligation (and without limitation of Mortgagee's right under this Mortgage) to enter onto the Property or to take such other actions as it shall deem necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with, any such Hazardous Waste or Environmental Complaint following receipt of any notice from any person or entity having jurisdiction asserting the existence of any Hazardous Waste or an Environmental Complaint pertaining to the Property or any part thereof which, if true, could result in an order, suit or other action against Mortgagor and/or which, in Mortgagee's sole opinion, could jeopardize its security under this Mortgage. All reasonable costs and expenses incurred by Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be payable by Mortgagor upon demand.
(f) Environmental Audits. If Mortgagee shall have reason to believe that Hazardous Waste has been discharged on the Property, Mortgagee shall have the right, in its sole discretion, to require Mortgagor to perform periodically to Mortgagee's satisfaction (but only upon evidence of discharge or unless an Environmental Complaint shall be then outstanding), at Mortgagor's expense, an environmental audit and, if deemed necessary by Mortgagee, an environmental risk assessment of: (a) the Property; (b) hazardous waste management practices and/or (c) Hazardous Waste disposal sites used by Mortgagor. Said audit and/or risk assessment must be by an environmental consultant satisfactory to Mortgagee. Should Mortgagor fail to perform any such environmental audit, or risk assessment within thirty (30) days after Mortgagee's request, Mortgagee shall have the right to retain an environmental consultant to perform such environmental audit or risk assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights shall be secured by this Mortgage and shall be payable by Mortgagor upon demand.
(g) Breach. Any breach of any warranty, representation or agreement contained in this Section shall be an Event of Default and shall entitle Mortgagee to exercise any and all remedies provided in this instrument, or otherwise permitted by law.
5. INSURANCE. Until the Note shall have been discharged by Mortgagor, Mortgagor shall maintain, at Mortgagor's cost and expense, the following insurance coverages in full force and effect at all times:
(a) Hazard Insurance. Mortgagor shall keep the Property insured at all times against loss or damage as defined under special causes of loss form of coverage and against such other hazards as Mortgagee may require in the amount of 100% of the replacement cost value of the Property as determined by the cost approach to value reflected in a current appraisal less land and soft costs (or such lesser amount as Mortgagee may authorize in writing), with an insurer satisfactory to Mortgagee. Such policy shall include a Building, Ordinance or Law Endorsement (if the Property is improved). Said coverage shall also insure against loss by windstorm and flood damage subject to the terms of 5(c) herein.
(b) Liability Insurance. Mortgagor will obtain and keep in full force a "Broad Form Comprehensive General Liability" insurance coverage for both Mortgagor and any contractor performing services to the Property in the minimum coverage amount of One Million Dollars ($1,000,000.00) per occurrence of bodily injury and One Million Dollars ($1,000,000.00) per occurrence of property damage with $2,000,000.00 general aggregate coverage.
(c) Flood Insurance. If at any time the Land or any portion thereof is located in a "Special Flood Hazard Area or Zone" pursuant to the Flood Disaster Protection Act of 1973 or any successor or supplemental act thereto, flood insurance in the maximum amount available or such other amount as Mortgagee may request;
(d) Builder's Risk Insurance. In the event any improvements to the Property are constructed, a completed value or full value reporting form builder's risk insurance policy, which policy shall provide coverage at least in the amount of the general contract for improvements to the Property.
(e) Other Insurance. Worker's compensation insurance (if required by law) in the amount of $1,000,000.00 or such other limit prescribed by Florida Statutes, business interruption insurance and other insurance coverages as Mortgagee may reasonably require.
The policy or policies of insurance shall (i) be from companies admitted in Florida and in coverage amounts acceptable to Mortgagee, (ii) contain a standard mortgagee clause in favor of Mortgagee naming Mortgagee as a mortgagee and including a Bank's loss payee clause in such policy, as applicable (iii) not be terminable or modified without thirty (30) days' prior written notice to Mortgagee, and (iv) be evidenced by true and correct copies of the policies or certificates of insurance, as Mortgagee may elect. Mortgagor shall furnish Mortgagee satisfactory evidence of payment of all premiums required and similar evidence of renewal or replacement coverage not later than thirty (30) days prior to the date any coverage will expire.
Each insurance policy or endorsement required herein shall be written by an insurer having a rating not less than "A/IX" Best's Rating according to the most current edition of AM Best Rating Guide as determined at the time of the initial policy and at all times during the term hereof. Mortgagor shall insure that notices related to such insurance shall be sent to Mortgagee at the address stated herein. If any loss occurs with respect to the Property, Mortgagee is hereby appointed attorney-in-fact for Mortgagor to make proof of loss if Mortgagor fails to make the same punctually, and to give a receipt for any proceeds collected under such policies. Mortgagor will promptly give written notice to Mortgagee of any loss or damage to the Property, and will not adjust or settle any such loss without Mortgagee's prior written consent, which consent shall not be unreasonably withheld or delayed. Upon any Default by Mortgagor under this Mortgage, all right, title and interest of Mortgagor in and to all such insurance policies then in force, including any and all unearned premiums and existing claims, will inure to Mortgagee, which, at its option, and as attorney-in-fact for Mortgagor, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee may elect. The foregoing appointment of Mortgagee as attorney-in-fact for Mortgagor is coupled with an interest, and is irrevocable. Notwithstanding the occurrence of any casualty or the availability of any insurance proceeds, Mortgagor will pay the Note in the manner required thereby.
Copies of each policy required hereunder and all changes and amendments thereto shall be mailed to Mortgagee at:___________________, Attn:_________________, ___________________________, within ten (10) days of the date thereof and upon request by Mortgagee.
6. CONDEMNATION. If all or any part of the Property, or any interest therein or right accruing thereto, is taken as a result of, or in lieu or in anticipation of, the exercise of the right of condemnation or eminent domain, or by reason of the temporary requisition of the use or occupancy of the Property, in any event by any government or quasi-governmental authority, civil or military, or any other party entitled to exercise such powers by law, general or special, or is devalued or otherwise adversely affected by any of the foregoing actions, all proceeds payable with respect to any such action are assigned to Mortgagee and shall be paid to Mortgagee. Mortgagee shall be under no obligation to question the amount of any such award or compensation and may accept the same in the amount in which the same shall be paid. The proceeds of any award or compensation so received shall, at the option of Mortgagee, either be applied to the payment of the Note or be paid over to Mortgagor for the restoration of the Improvement. Mortgagor, immediately upon obtaining knowledge of the institution or threatened institution, of any proceedings for the Property, or any part thereof, by condemnation or eminent domain, will notify Mortgagee of the pending of such proceedings. Mortgagee shall have the right to intervene and participate in any proceedings for and in connection with any taking referred to in this section. Mortgagor shall not enter into any agreement for the taking of the Property or any part thereof with any person or persons authorized to acquire the same by condemnation or eminent domain, unless Mortgagee shall have consented thereto in writing. Any of the foregoing actions are sometimes called a "condemnation" or "taking" in this Mortgage. Such proceeds include, without limitation, severance damages, damages arising from the change of grade of any street or the access thereto, the taking of air rights and damages caused by noise, pollutants and other emissions. Notwithstanding any such taking or other injury or decrease in value, or the availability of any proceeds for any of the foregoing, Mortgagor shall continue to pay the Note in the manner required thereby. Mortgagee's rights under this paragraph will survive the foreclosure or other enforcement of this Mortgage, and Mortgagee will have the right to receive and retain all proceeds to the extent of any deficiency which exists upon such foreclosure or other enforcement, together with legal interest thereon, and to the extent of the reasonable counsel fees, costs and disbursements incurred by Mortgagee in connection with the collection of such proceeds. Such right shall exist whether or not a deficiency judgment shall have been sought or recovered or denied upon the Note. The remaining balance of such proceeds, if any, will inure to the benefit of the party entitled thereto by applicable law.
7. APPLICATION OF INSURANCE PROCEEDS AND AWARDS. Mortgagor will promptly give Mortgagee written notice of any damage to or destruction of the Property or any part thereof, generally describing the nature and extent of such damage or destruction and Mortgagor's best estimate of the cost of restoring the Property. Mortgagee shall be entitled to all insurance proceeds payable on account of such damage or destruction and Mortgagor hereby irrevocably assigns, transfers and sets over to Mortgagee all rights of Mortgagor to any such proceeds or payments and irrevocably authorizes and empowers Mortgagee, at its option and in its sole and absolute discretion, in the name of Mortgagor or otherwise, to file and prosecute what would otherwise be Mortgagor's claim for any such proceeds or payment and to collect, receipt for and retain the same for disposition in accordance with this section. Mortgagee may, at its sole option, apply all amounts recovered under any insurance policy required to be maintained by Mortgagor hereunder in any one or more of the following ways: (a) to the payment of the reasonable costs and expenses incurred by Mortgagee in obtaining such insurance proceeds, including the fees and expenses of attorneys and insurance and other experts and consultants, the costs of litigation, arbitration, mediation, investigations and other judicial, administrative or other proceedings and all other out-of-pocket expenses; (b) to the payment of any of the sums due hereunder other than indebtedness with respect to the Note at the time outstanding; (c) to the payment of the principal of the Note and any interest accrued and unpaid thereon, without regard to whether any portion or all of such amounts shall be matured or unmatured, together with interest at the default interest rate on any overdue principal and (to the extent permitted by applicable law) interest; and, in case such amount shall be insufficient to pay in full all such amounts, then such amounts shall be applied, first, to the payment of all amounts of interest accrued on the Note and unpaid and second, to the payment of all amounts of principal at the time outstanding, or otherwise in such manner and order as Mortgagee shall in its sole discretion determine; (d) to fulfill any of the other covenants contained herein as Mortgagee may determine; (e) release to Mortgagor for application to the cost of restoring the Property; or (f) release to Mortgagor. In the event of a foreclosure of this Mortgage, the purchaser of the Property shall succeed to all the rights of Mortgagor, including any right to unearned premiums, in and to all policies of insurance assigned and delivered to Mortgagee.
8. MAINTENANCE, REPAIRS, AND RECONSTRUCTION.
(a) Maintenance and Repairs. Mortgagor, at its sole cost and subject to Mortgagee's satisfaction, shall make all repairs, renewals, replacements, servicing and reconstruction that are necessary to maintain the Property in good order, condition and repair. Immediately following the occurrence of any casualty or other loss, Mortgagor promptly will undertake all restoration required or desirable and will pursue it diligently to completion. Mortgagor shall (i) not strip, waste, remove or demolish any portion of the Property, nor suffer or permit any such action; (ii) promptly comply with all laws, governmental regulations and public or private restrictions or easements, or both, of any kind affecting the Property or requiring any alterations or improvements to be made thereon, and (iii) not commit, suffer or permit any act upon the Property in violation of any law, subject to Mortgagor's right to contest the same in good faith to conclusion. If any public agency or authority requires or commences any proceedings for the demolition or removal, or both, of any improvements or portions thereof comprising the Property due to non-compliance with health, safety, fire or building codes, then, unless Mortgagor undertakes to contest such action and pursues such contest to a successful conclusion, such action will constitute a default under this Mortgage. Mortgagor will not, without Mortgagee's prior written consent, (i) make any material alterations, additions or improvements of or to the Property; (ii) make any material change in the general nature of the use or occupancy of the Property; (iii) institute or join or acquiesce in any action to change the existing zoning or land use classification of the Property, or (iv) grant easements or licenses affecting the use or operation of the Property. Mortgagee and any persons authorized by Mortgagee may enter the Property at all reasonable times following two (2) business days prior written notice of its intent to enter the Property for inspections or for any other lawful purpose. If Mortgagor fails to comply with the requirements of this paragraph, then Mortgagee, without waiving the option to foreclose, may take some or all measures Mortgagee reasonably deems necessary or desirable for the maintenance, repair, preservation or protection of the Property, and any expenses reasonably incurred by Mortgagee in so doing shall become part of the debt secured hereby, and shall, at the option of Mortgagee, become immediately due and payable, and shall bear interest at the default rate specified in the Note. Mortgagee shall have no obligation to care for or maintain the Property, or, having taken some measures therefore, to continue same or take other measures.
(b) Reconstruction. Mortgagor shall promptly repair, restore, replace or rebuild any part of the Property, now or hereafter encumbered by this Mortgage which may be affected by any condemnation proceeding or which may otherwise become damaged, destroyed, lost or unsuitable for use. In the event the Property or any part thereof is damaged or destroyed by fire or other casualty, Mortgagor shall immediately notify Mortgagee, in writing, of such damage or destruction. Mortgagor shall not cause or permit anything to be done which would or could increase the risk of fire or other hazard to the Property, or any part thereof, or which would or could result in an increase in any insurance premiums payable with respect to the Property, or which would or could result in the cancellation of any insurance policy carried with respect to the Property. No part of the Property, including, but not limited to, any building, structure, water system, sewer system, parking lot, driveway, landscape scheme, timber or other ground improvement, equipment or other property, now or hereafter mortgaged, shall be removed, demolished or materially altered without the prior written consent of Mortgagee. No top soil, sand, sod, loam, clay or gravel shall be mined, stripped, or removed from the Property without the written consent of Mortgagee. However, this shall not prevent or restrict removal of any such materials taken for excavation necessary to construct a basement, cellar or foundation footings for the erection of a building or buildings for which a building permit or permits has or have first been issued by the governmental authority having jurisdiction thereof; or for the construction of roadways constructed in accordance with plans approved by the governmental authorities having jurisdiction thereof in accordance with any loan agreement between the parties; provided, nevertheless, that in the event the required removals become so extensive, as determined by Mortgagee, as to create profit by sale of the removed portion of the Property, said sums shall inure to the benefit of Mortgagee to be applied as Mortgagee so directs, to the reduction of the debt secured hereby.
9. EVENTS OF DEFAULT, NO NOTICE OR CURE PERIOD. Upon the occurrence of a default hereunder or under the terms of the Note or any other loan documents Mortgagee may, without notice or opportunity to cure, declare the then outstanding principal and all accrued but unpaid interest and other charges under the Note secured hereby immediately due and payable without presentation, demand, or protest, all of which are hereby waived by Mortgagor and upon acceleration and thereafter the sums due shall bear interest at the default rate as provided in the Note until all said indebtedness has been paid in full.
10. REMEDIES. In the event of a default under the Mortgage, the Note, any loan agreement, or any other document executed in connection herewith a, Mortgagee shall have the following remedies:
(a) Right to accelerate the indebtedness due under the Note and to foreclose this Mortgage in accordance with applicable law and to pursue all other lawful remedies. Mortgagor shall pay all costs, charges and expenses, including attorney's fees reasonably incurred or paid at any time by the Mortgagee because of the failure on the part of the Mortgagor to perform, comply with and abide by each and every of the stipulations, agreements, conditions and covenants of the Note and this Mortgage, or either, and every such payment shall bear interest from the date at the rate of interest prescribed in the Note which this Mortgage is given to secure.
(b) Mortgagor consents to the appointment of a receiver.
(c) Mortgagee may enter into and upon the Property and exclude Mortgagor therefrom having and holding the Property for use, operation, management and control of the Property; Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Property, all of which shall for all purposes constitute property of the Mortgagor; and after deducting the expenses of conducting the business of Mortgagor thereof, if a business is maintained on the mortgaged Property, and of all maintenance, repairs, renewals, replacements, alterations, additions, betterment and improvements and amounts necessary to pay taxes, assessments including any such assessments levied or due under the ADA or CERCLA, or other federal, state or local laws and regulations, insurance and prior to other proper charges upon the Property, or any part thereof, as well as just and reasonable compensation for the services of Mortgagee and for all attorney's, counsel, agents, clerks, servants and other employees by it properly engaged and employed, Mortgagee may apply the monies arising as aforesaid, first to the payment of the principal of the Note secured hereby and interest thereon, when and as things shall become payable and second to payment of any other sums required to be paid by Mortgagor under this Mortgage.
(d) Mortgagee may, at its option without waiving its right to accelerate the indebtedness hereby secured and to foreclose the same, pay either before or after delinquency any or all of those certain obligations required by the terms hereof to be paid by Mortgagor for the protection of the Property or for the collection of the indebtedness hereby secured, including but not limited to payment of taxes, assessments, superior mortgage liens, and all other encumbrances and liens on the Property. All sums so advanced or paid by Mortgagee shall be repaid by Mortgagor to Mortgagee within fifteen (15) days after demand by Mortgagee to the Mortgagor for said payment, and the amount of the sum so advanced shall bear interest at the maximum rate permitted by law, and the sums shall be secured by the lien of this Mortgage.
(e) Mortgagee shall have the absolute right, pursuant to this Mortgage and F.S. 697.07, upon written demand to Mortgagor, to the assignment of all rents and profits from the Property. Upon application by the Mortgagee, a Court of competent jurisdiction may require the Mortgagor to deposit such rents into the registry of the Court pending adjudication of the Mortgagee's rights. In the event of any default hereunder or under any of the Loan Documents, Mortgagor consents to Mortgagee communicating directly with tenants of the Property to collect rents therefrom.
11. DUE ON SALE. Mortgagor acknowledges that the continuous ownership of the property encumbered hereby by Mortgagor is of a material nature to Mortgagee and in the event Mortgagor transfers title to any portion of the property encumbered hereby, or should the same be transferred by operation of law, then in such event, the entire unpaid principal balance of the Promissory Note secured hereby shall immediately become due and payable forthwith as fully and completely as if the same unpaid balance was originally stipulated to be paid on such date, anything in the Promissory Note or herein to the contrary notwithstanding. The term "transfer of title" as used herein shall include, but not be limited to the following:
(a) the execution by Mortgagor of an Agreement for Sale and Purchase whereby purchaser is placed in possession prior to closing.
(b) the execution by Mortgagor of an Agreement for Deed or an Executory Contract of Sale which places the purchaser in possession prior to closing.
(c) the execution and delivery by Mortgagor of a Deed of any nature whatsoever.
(d) the leasing of the Property except as may be approved in writing by Mortgagee in its discretion.
Mortgagor shall not, without the consent in writing of Mortgagee, encumber by mortgage or otherwise any portion of the property encumbered hereby. Violation of these provisions shall be deemed a default.
12. MISCELLANEOUS PROVISIONS.
(a) This Mortgage shall, for all purposes, be governed and construed in accordance with the laws of the State of Florida.
(b) Mortgagor and Mortgagee may, from time to time, agree to modify this Mortgage to spread the lien of the Mortgage to additional real property not presently encumbered hereby.
(c) Mortgagor acknowledges receipt of a direct benefit from the proceeds of the Note secured hereby.
13. SECURITY AGREEMENT. Mortgagor hereby grants to Mortgagee a security agreement in the personal property described in Exhibit "B" attached hereto, whether now owned or hereafter acquired, and all the proceeds therefrom. This Mortgage shall constitute a UCC-1 financing statement to the extent permitted under Florida law. Mortgagor hereby consents to and directs Mortgagee to prepare and file or record any further UCC-1 statements as Mortgagee may deem necessary to perfect its security interest in the personal property described in Exhibit "B" hereto.
14. PARTIAL RELEASES. Mortgagor shall be entitled to a partial release of the lien of the Mortgage as to any parcel of Property secured hereby upon either of the following: (a) the loan to value ratio of the Property remaining under the Mortgage lien following the sale of any parcel is ___% or less, as calculated by Mortgagee; or (b) Mortgagor pays to Mortgagee a partial release payment calculated as a percentage of the then outstanding loan balance where the percentage is equal to the ratio of the appraised value of the parcel of Property to be released (determined at the date of the loan closing) to the appraised value of all three parcels of Property (determined at the date of the loan closing).
IN WITNESS WHEREOF, this Mortgage has been duly executed by the Mortgagor as of the day and year first above written.
|SIGNED, SEALED AND DELIVERED |___________, a _____________________ |
|IN THE PRESENCE OF: | |
|______________________________________ Witness Signature |By:______________________________________ |
| |______________, as __________ |
|______________________________________ | |
|Typed/Printed Witness Name | |
|______________________________________ Witness Signature | |
|______________________________________ | |
|Typed/Printed Witness Name | |
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this day of __________, 2016 by ______________as Manager of_______________, ____, a Florida limited liability company, who is personally known to me or who has produced ___________________ as identification.
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|My Commission Expires: | |
| |Notary Public |
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| |Print/Type Name of Notary |
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| |Commission No. |
EXHIBIT “A”
LEGAL DESCRIPTION OF REAL PROPERTY
EXHIBIT "B" TO MORTGAGE AND SECURITY
AGREEMENT - DESCRIPTION OF PERSONAL PROPERTY
This Financing Statement covers the following types and items of property:
1. Improvements. All buildings, structures, betterments, and other improvements of any nature now or hereafter situated in whole or in part at Debtor's real property described in Exhibit “A” hereto (the "Land") regardless of whether physically affixed thereto or severed or capable of severance therefrom (the "Improvements"), together with all awards or payments, including interest thereon and the right to receive same as a result of the exercise of the right to eminent domain or any other taking of or injury to the Improvements.
2. Tangible Property. All of Debtor's interest in all fixtures, equipment and tangible personal property of any nature whatsoever now or hereafter (i) attached or affixed to the Land or the Improvements, or both, or (ii) situated upon or about the Land or the Improvements, or both, regardless of whether physically affixed thereto or severed or capable of severance therefrom, or (iii) otherwise owned or hereafter acquired by Debtor regardless of where situated. The foregoing includes but is not limited to: all heating, air conditioning, lighting, incinerating, power equipment; all engines, compressors, pipes, pumps, tanks, motors, conduits, wiring and switchboards; all plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating and communications apparatus; all boilers; furnaces, oil burners, vacuum cleaning systems, elevators and escalators; all stoves, ovens, ranges, disposal units, dishwashers, water heaters, exhaust systems, refrigerators, cabinets and partitions; all rugs and carpets; all laundry equipment; all building materials, equipment and supplies; all furniture, furnishings, office equipment and office supplies; and all additions, accessions, renewals, replacements and substitutions of any or all of the foregoing or the proceeds therefrom (the "Tangible Property").
3. Incomes. All rents, issues, incomes and profits now due or in any manner arising from any of the property described in this Exhibit, or any combination, including Debtor's interest in and to all leases, licenses, franchises and concessions of, or relating to, all or any portion of said property, whether now existing or hereafter made, including all amendments, modifications, replacements, substitutions, extensions, renewals or consolidations. The foregoing items are jointly and severally called the "Rents" in this instrument.
4. Secondary Financing. All of Debtor's right, power or privilege to further encumber any of the property described in this Exhibit for debt.
5. Proceeds. All proceeds of the conversion, voluntary or involuntary, of any of the property described in this Exhibit into cash or other liquidated claims or that are otherwise payable for injury to, or the taking or requisitioning of, any such property, including all insurance and condemnation proceeds.
6. Contract Rights and Accounts. All of Debtor's right, title and interest in and to any and all contracts, written or oral, expressed or implied, now existing or hereafter entered into or arising, in any manner related to, the improvement, use, operation, sale, conversion or other disposition of any interest in the property described in this Exhibit, or any combination, including any and all deposits, prepaid items, and payments due and to become due thereunder, and including construction contracts, service contracts, advertising contracts, purchase orders and equipment leases.
7. Other Intangibles. All contract rights, accounts, accounts receivable, instruments and general intangibles, as such terms from time to time are defined in the Florida Uniform Commercial Code, in any manner related to the use, operation, sale, conversion or other disposition (voluntary or involuntary) of any of the property described in this Exhibit, or Debtor's business including all permits, licenses, insurance policies, and rights of action, now existing or hereafter acquired.
As used in this Exhibit, the term "include" is for illustrative purposes only and is always without limitation.
HAZARDOUS WASTE INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated the ________ day of ___________, 20__, by and between ____________, a______________, ___________, individually, _____________, individually, and _________, individually (hereinafter collectively referred to as “Indemnitor”), and_____________, a______________ bank, (hereinafter referred to as “Indemnitee”).
WHEREAS, ___________, a________________, owns certain lands located at____________________________, _______________County, Florida, more particularly described as follows (“Land”):
As described in Exhibit “A” attached hereto.
WHEREAS, Indemnitee intends to make a loan to____________, a_______________________, in the amount of $______________ which loan will be secured by a mortgage encumbering the Land;
WHEREAS, Indemnitee will not make the mortgage loan unless Indemnitor agrees to indemnify and hold harmless Indemnitee from and against all liability which may result from any hazardous or toxic substance, as same are defined in Chapter 403, Florida Statutes, and in 43 U.S.C.A. Section 9601, et seq. (Comprehensive Environmental Response, Compensation and Liability Act), presently existing on the Land or having in the past existed on the Land or which may exist on the Land during the time title is vested in the undersigned.
NOW, THEREFORE, for and in consideration of the mutual promises herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties represent and agree as follows:
1. In order to induce Indemnitee to make the above described mortgage loan Indemnitor represents and warrants to Indemnitee and its successors and assigns as follows:
(a) Land does not contain any hazardous or toxic substance;
(b) Indemnitor has not conducted, permitted or authorized the generation, transportation, storage, treatment, or disposal at the Land, of any hazardous or toxic substance, except as may be used in the ordinary course of business in a practice;
(c) Indemnitor is not aware of any pending or threatened litigation or proceedings before any administrative agency in which any person or entity alleges the presence, release, threat of release, placement on or in the Land, or the generation, transportation, storage, treatment, or disposal at the Land, of any hazardous or toxic substance;
(d) Indemnitor has not received any notice of and has no actual or constructive knowledge that any governmental authority or any employee or agent thereof has determined, or threatens to determine, that there is a presence, release, threat of release, placement on or in the Land, or the generation, transportation, storage, treatment, or disposal at the Land, of any hazardous or toxic substance; and
(e) There have been no communications or agreements with any governmental authority or agency (federal, state or local) or any private entity, including, but not limited to, any prior owners of the Land relating to the presence, release, threat of release, placement on or in the Land, or the generation, transportation, storage, treatment or disposal of any hazardous or toxic substance on the Land.
(f) Indemnitor represents, covenants and agrees with Indemnitee and its successors and assigns as follows:
(g) Indemnitor shall not conduct, permit, or authorize the generation, storage, treatment, or disposal of any hazardous waste or toxic substance on or in a location that will adversely affect the Land and Indemnitor shall promptly provide Indemnitee written notice of (1) its obtaining knowledge of any release of any hazardous or toxic material at or from the Land or any other site owned, occupied or operated by Indemnitor or by any person for whose conduct Indemnitor is responsible or whose liability may result in a lien on the Land, (2) Indemnitor’s receipt of any notice to such effect from any federal, state or other governmental authority, and (3) Indemnitor’s obtaining knowledge of the incurring of any expense or loss by any such governmental authority in connection with the assessment, containment or removal of any hazardous or toxic material or oil for which expense or loss Indemnitor may be liable or for which expense a lien may be imposed on the Land.
2. Indemnitor is aware of Chapter 403, Florida Statutes and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) contained in 43 USCA 9601 et seq., and the amendments thereto, and such statutes are incorporated herein by reference.
3. Indemnitor understands that in making the mortgage loan, Indemnitee and Indemnitee’s successors and assigns are relying upon the certifications, representations and undertakings made herein, and jointly and severally consent to such reliance.
4. Indemnitor agrees that if any hazardous materials are located on the land, except as may be used in the ordinary course of business in a medical practice, Indemnitor shall forthwith remove said materials at Indemnitor’s expense, will comply with any and all orders or directives of any federal, state or local agency or department relative thereto, and will return the Land to conditions required by law without any diminution in value thereof.
5. Indemnitor agrees that at the option of Indemnitee or its successors and assigns, any false certification or misrepresentations herein contained or any breach of or default under any agreement or undertaking herein shall constitute a breach of the conditions of the mortgage for which Indemnitee or its successors and assigns shall have all rights and remedies set forth in said mortgage and the note secured thereby and under applicable law.
6. Indemnitor shall indemnify, defend and hold harmless Indemnitee and Indemnitee’s successors and assigns from and against any and all damages, liens, costs, losses, costs of removal, and expenses (including but not limited to attorneys fees and engineering fees) arising from the falsity of any representation or warranty contained herein, or arising from the past, present or future existence of any hazardous or toxic substance on the Land.
7. This Agreement is entered into in the State of Florida and shall be governed by the laws thereof and venue shall be proper in the County in which the land is located.
8. The rights and obligations of all parties hereto, including the third party beneficiaries hereof, shall inure to the benefit of and be binding upon, as the case may be, the personal representatives, successors and assigns of the parties.
9. The obligations of Indemnitor hereunder shall be in addition to, and not as a substitute for, all of the obligations and undertakings of Indemnitor under the promissory note(s), mortgage, loan agreement and all other instruments associated with the above described mortgage loan, and shall survive the closing and any loan enforcement activities, including, without limitation, foreclosure proceedings or the acceptance of a deed in lieu of foreclosure.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals.
| |INDEMNITOR: |
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| |_____________, a ___________________ |
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|_______________________________ |By:_______________________________________ |
|Witness | _______________, as ______________ |
|_______________________________ | |
|(Type/Print Name of Witness) | |
|_______________________________ | |
|Witness | |
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|(Type/Print Name of Witness) | |
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|_______________________________ |_______________________________________ |
|Witness |________________, individually |
|_______________________________ | |
|(Type/Print Name of Witness) | |
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|Witness | |
|_______________________________ | |
|(Type/Print Name of Witness) | |
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|_______________________________ |_______________________________________ |
|Witness |______________, individually |
|_______________________________ | |
|(Type/Print Name of Witness) | |
|_______________________________ | |
|Witness | |
|_______________________________ | |
|(Type/Print Name of Witness) | |
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|_______________________________ |_______________________________________ |
|Witness |______________, individually |
|_______________________________ | |
|(Type/Print Name of Witness) | |
|_______________________________ | |
|Witness | |
|_______________________________ | |
|(Type/Print Name of Witness) | |
| |INDEMNITEE: |
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| |___________, a___________, |
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|_______________________________ |By: |
|Witness | ____________, ________________ |
|______________________________ | |
|(Type/Print Name of Witness) | |
|_______________________________ | |
|Witness | |
|______________________________ | |
|(Type/Print Name of Witness) | |
EXHIBIT ‘A’
LEGAL DESCRIPTION OF MORTGAGE PROPERTY
ANTI-COERCION STATEMENT
THE FOLLOWING STATEMENT IS REQUIRED UNDER RULE 4-124.002, FLORIDA ADMINISTRATIVE CODE, PROMULGATED BY THE FLORIDA INSURANCE COMMISSIONER RELATIVE TO ANTI-COERCION.
The Insurance Laws of this state provide that___________, a ___________, the “Bank”, may not require__________, a_______________, to take insurance through any particular insurance agent or company to protect the mortgaged property.
The undersigned, as Borrower and Mortgagor, subject to the rules adopted by the Insurance Commissioner, has the right to have the insurance placed with an insurance agent or company of his choice, provided the company meets the requirements of the Bank. The Bank has the rights to designate reasonable financial requirements as to the company and the adequacy of the coverage.
I have read the foregoing statement, or the rules of the Insurance Commissioner relative thereto, and understand my rights and privileges and those of the Bank relative to the placing of such insurance.
I have selected _____________________________ as my agent, or ______________________________________ Insurance Company to write the hazard insurance covering the property described on attached Exhibit “A”
| | |____________, a __________________ |
| | |By:______________________________________ |
| | |_____________, as _____________ |
Date: _________________, 2016
EXHIBIT “A”
LEGAL DESCRIPTION OF MORTGAGE PROPERTY
STATE OF FLORIDA UNIFORM COMMERCIAL CODE
FINANCING STATEMENT FORM
|A. NAME & DAYTIME PHONE NUMBER OF CONTACT PERSON |
|B. Email Address |
|C. SEND ACKNOWLEDGEMENT TO: |
|Name |
| |
|Address |
| |
|Address |
| |
|City/State/Zip |
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
1. DEBTOR’S EXACT FULL LEGAL NAME – INSERT ONLY ONE DEBTOR NAME (1a OR 1b) – Do Not Abbreviate or Combine Names
|1.a ORGANIZATION’S NAME |
|1.b INDIVIDUAL’S SURNAME |FIRST PERSONAL NAME |ADDITIONAL NAME(S)/INITIAL(S) |SUFFIX |
|1.c MAILING ADDRESS Line One |This space not available. |
| MAILING ADDRESS Line Two |CITY |STATE |POSTAL CODE |COUNTRY |
| | | | |USA |
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME – INSERT ONLY ONE DEBTOR NAME (2a OR 2b) – Do Not Abbreviate or Combine Names
|2.a ORGANIZATION’S NAME |
|2.b INDIVIDUAL’S SURNAME |FIRST PERSONAL NAME |ADDITIONAL NAME(S)/INITIAL(S) |SUFFIX |
|2.c MAILING ADDRESS Line One |This space not available. |
| MAILING ADDRESS Line Two |CITY |STATE |POSTAL CODE |COUNTRY |
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) – INSERT ONLY ONE SECURED PARTY (3a OR 3b)
|3.a ORGANIZATION’S NAME |
|3.b INDIVIDUAL’S SURNAME |FIRST PERSONAL NAME |ADDITIONAL NAME(S)/INITIAL(S) |SUFFIX |
|3.c MAILING ADDRESS Line One |This space not available. |
| MAILING ADDRESS Line Two |CITY |STATE |POSTAL CODE |COUNTRY |
4. This FINANCING STATEMENT covers the following collateral:
AS DESCRIBED IN EXHIBIT “A” AND EXHIBIT “B” ATTACHED HERETO.
5. ALTERNATE DESIGNATION (if applicable) LESSEE/LESSOR CONSIGNEE/CONSIGNOR BAILEE/BAILOR
AG LIEN NON-UCC FILING SELLER/BUYER
6. Florida DOCUMENTARY STAMP TAX – YOU ARE REQUIRED TO CHECK EXACTLY ONE BOX
All documentary stamps due and payable or to become due and payable pursuant to s. 201.22 F.S., have been paid.
Florida Documentary Stamp Tax is not required.
7. OPTIONAL FILER REFERENCE DATA
STANDARD FORM - FORM UCC-1 (REV.05/2013) Filing Office Copy Approved by the Secretary of State, State of Florida
EXHIBIT “A”
To Mortgage and Security Agreement and UCC-1
EXHIBIT “B”
to UCC-1
This Financing Statement covers the following types and items of property:
1. Improvements. All buildings, structures, betterments, and other improvements of any nature now or hereafter situated in whole or in part at Debtor’s real property described in Exhibit “A” hereto (the “Land”) regardless of whether physically affixed thereto or severed or capable of severance therefrom (the “Improvements”), together with all awards or payments, including interest thereon and the right to receive same as a result of the exercise of the right to eminent domain or any other taking of or injury to the Improvements.
2. Tangible Property. All of Debtor’s interest in all fixtures, equipment and tangible personal property of any nature whatsoever now or hereafter (i) attached or affixed to the Land or the Improvements, or both, or (ii) situated upon or about the Land or the Improvements, or both, regardless of whether physically affixed thereto or severed or capable of severance therefrom, or (iii) otherwise owned or hereafter acquired by Debtor regardless of where situated. The foregoing includes but is not limited to: all heating, air conditioning, lighting, incinerating, power equipment; all engines, compressors, pipes, pumps, tanks, motors, conduits, wiring and switchboards; all plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating and communications apparatus; all boilers; furnaces, oil burners, vacuum cleaning systems, elevators and escalators; all stoves, ovens, ranges, disposal units, dishwashers, water heaters, exhaust systems, refrigerators, cabinets and partitions; all rugs and carpets; all laundry equipment; all building materials, equipment and supplies; all furniture, furnishings, office equipment and office supplies; and all additions, accessions, renewals, replacements and substitutions of any or all of the foregoing or the proceeds therefrom (the “Tangible Property”).
3. Incomes. All rents, issues, incomes and profits now due or in any manner arising from any of the property described in this Exhibit, or any combination, including Debtor’s interest in and to all leases, licenses, franchises and concessions of, or relating to, all or any portion of said property, whether now existing or hereafter made, including all amendments, modifications, replacements, substitutions, extensions, renewals or consolidations. The foregoing items are jointly and severally called the “Rents” in this instrument.
4. Secondary Financing. All of Debtor’s right, power or privilege to further encumber any of the property described in this Exhibit for debt.
5. Proceeds. All proceeds of the conversion, voluntary or involuntary, of any of the property described in this Exhibit into cash or other liquidated claims or that are otherwise payable for injury to, or the taking or requisitioning of, any such property, including all insurance and condemnation proceeds.
6. Contract Rights and Accounts. All of Debtor’s right, title and interest in and to any and all contracts, written or oral, expressed or implied, now existing or hereafter entered into or arising, in any manner related to, the improvement, use, operation, sale, conversion or other disposition of any interest in the property described in this Exhibit, or any combination, including any and all deposits, prepaid items, and payments due and to become due thereunder, and including construction contracts, service contracts, advertising contracts, purchase orders and equipment leases.
7. Other Intangibles. All contract rights, accounts, accounts receivable, instruments and general intangibles, as such terms from time to time are defined in the Florida Uniform Commercial Code, in any manner related to the use, operation, sale, conversion or other disposition (voluntary or involuntary) of any of the property described in this Exhibit, or Debtor’s business including all permits, licenses, insurance policies, and rights of action, now existing or hereafter acquired.
As used in this Exhibit, the term “include” is for illustrative purposes only and is always without limitation.
GENERAL, CONTINUING and
UNCONDITIONAL GUARANTY
This General, Continuing and Unconditional Guaranty, which is hereby made this _____ day of _____________, 2016 by Guarantor (as hereinafter defined), in favor of and enforceable by Creditor (as hereinafter defined), its successors and assigns, is a general, continuing and unconditional guaranty.
W I T N E S S E T H:
That for and in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration in hand paid to Guarantor by Creditor simultaneously with the execution and delivery of these presents, the receipt whereof is hereby acknowledged, and in consideration of the making of a loan (“Loan”) to______________, a______________, in the amount of _____________________and 00/100 Dollars ($________________) Guarantor covenants and agrees with Creditor as follows:
1. Definitions:
"Creditor" -_______________, a ____________bank, its successors and assigns.
Creditor's Address" – ___________________________
"Guarantor" –_____________, individually
"Borrower" –_____________, a___________________, together with any successor-in-interest of Borrower by operation of law or otherwise, and specifically including any Trustee (as defined in the Bankruptcy Code) or owner-in-possession, or successor-in-interest arising out of any merger or reorganization of Borrower into any entity or any entity into Borrower.
"Guarantor Debt" - any indebtedness of Borrower now or hereafter owed to Guarantor.
"Guaranteed Indebtedness" – All debts, obligations and liabilities of Borrower to Creditor, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, pertaining to that certain Loan referenced above between Borrower and Creditor, and any future advances thereon and any renewals, modifications or extensions thereto, whether Borrower may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become otherwise unenforceable against Borrower, or if said obligation ceases to exist for any reason (including but not limited to operation of the Bankruptcy Code) including interest and other charges accruing subsequent to the filing of a petition for relief under any federal or state Borrower relief statute by or against the Borrower. These obligations as stated herein apply to all amounts owed by Borrower to Creditor, its successors or assigns, whether or not such obligations arise under one or more of the following situations and/or time frames: (i) presently, prior to or subsequent to an assignment of the account by Creditor to another party or entity; (ii) prior to or subsequent to a succession of interest to Creditor; (iii) as a result of advances or other consideration given by Creditor; (iv) as a result of advances or other consideration given by Creditor’s successors or assigns.
2. Guaranty. For valuable consideration, Guarantor unconditionally guarantees and promises to pay when due to Creditor, on demand, in lawful money of the United States, the Guaranteed Indebtedness. Guarantor acknowledges that Creditor may at its sole discretion assign its rights in the Guaranteed Indebtedness and such assignment shall not relieve Guarantor of its liability hereunder and Guarantor shall remain obligated under the terms hereof to Creditor's successors and assigns. This is a continuing guaranty and shall remain in effect, unless otherwise terminated by Creditor as provided herein, until the Guaranteed Indebtedness is paid in full.
3. Written Notice of Revocation; Obligations Under Guaranty. This Guaranty is irrevocable and may be terminated only by written consent of Creditor and said consent shall be granted or withheld at Creditor's sole discretion.
4. Separate Actions, Waiver of Statute of Limitations, Reinstatement of Liability. The obligations hereunder are independent of the obligations of Borrower and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or any other Guarantor or whether Borrower or any other Guarantors are joined in any such action or actions. Guarantor acknowledges that there are no conditions precedent to the effectiveness of this guaranty, and that this guaranty is in full force and effect and is binding on Guarantor as of the date hereof regardless of whether Creditor obtains collateral or similar guaranties from others or takes any other action contemplated by Guarantor. Guarantor waives the benefit of any statute of limitations affecting Guarantor's liability hereunder or the enforcement thereof, and agrees that any payment of any Guaranteed Indebtedness or other act which shall toll any statute of limitations applicable thereto shall similarly operate to toll such statute of limitation applicable to Guarantor's liability hereunder. The liability of Guarantor hereunder shall be reinstated and revived, and the rights of Creditor shall continue, with respect to any amount at any time paid on account of the Guaranteed Indebtedness, which shall thereafter be restored or returned by Creditor, voluntarily or involuntarily, upon the bankruptcy, insolvency or reorganization of Borrower, or for any other reason, all as though such amount had not been paid. All monies available to Creditor for application in reduction of the Guaranteed Indebtedness or the other amounts due Creditor by Borrower may be applied by Creditor in such manner and in such amounts and at such time or times and in such order and priority as Creditor may see fit. Guarantor consents that, from time to time, before or after the occurrence of any default, with or without further notice to or assent from Guarantor, any security at any time held by or available to Creditor for any obligation of Borrower or any security at any time held by or available to Creditor for any obligation of any person or parties secondarily or otherwise liable for all or any portion of the Guaranteed Indebtedness may be exchanged, surrendered, or released and any obligation of Borrower, or of any such other person or party, may be changed, altered, renewed, extended, continued, surrendered, compromised, waived or released in whole or in part, or any default with respect thereto waived, and Creditor may fail to setoff and may release, in whole or in part, any balance of any deposit account or credit on its books in favor of Borrower, or of any such other person or party and may extend further credit in any manner whatsoever to Borrower and generally deal with Borrower or any such security or other person or party as Creditor may see fit, and Guarantor shall remain bound under this Guaranty notwithstanding the occurrence of any of the foregoing.
5. Authorizations to Creditor. Guarantor authorizes Creditor, without notice or demand and without affecting Guarantor's liability hereunder, from time to time to (a) alter, compromise, renew, extend, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Guaranteed Indebtedness or any part thereof, including increase or decrease in the rate of interest thereon, (b) take and hold security for the payment of the Guaranteed Indebtedness, and exchange, enforce, waive and release any such security, (c) apply such security and direct the order or manner of sale thereof, including without limitation a non-judicial sale permitted by the terms of the controlling security agreement, mortgage, or applicable law, as Creditor in its discretion may determine, (d) release or substitute any one or more obligors or Guarantors of the Guaranteed Indebtedness, and (e) apply payments on account of the Guaranteed Indebtedness, from any source, in repayment of the Guaranteed Indebtedness, in any manner deemed to be in the best interest of Creditor. Guarantor acknowledges that this guaranty will be binding whether or not Creditor takes any other guaranties of the Guaranteed Indebtedness or any security for the Guaranteed Indebtedness. Creditor may without notice assign this guaranty in whole or in part.
6. Guarantor's Warranties. Guarantor warrants that: (a) this guaranty is executed at Borrower's request, (b) this guaranty is a valid, binding, legally enforceable obligation in accordance with its terms, (c) there is no litigation or other proceeding pending or to the best of Guarantor's knowledge, threatened against or affecting, Guarantor or Guarantor's properties which, if determined adversely, would have a materially adverse effect on Guarantor's financial condition, and Guarantor is not in default with respect to any order, writ, injunction, decree or demand of any court or other governmental or regulatory authority, (d) Guarantor has established adequate means of obtaining from Borrower on a continuing basis, financial and other information pertaining to Borrower's financial condition, (e) Creditor has made no representation to Guarantor as to the Borrower's creditworthiness. Guarantor agrees to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Guarantor's risks hereunder and Guarantor further agrees that Creditor shall have no obligation to disclose to Guarantor information or material acquired in the course of Creditor's relationship with Borrower, and (f) Guarantor is not insolvent and the execution of this Guaranty by Guarantor does not render it insolvent for the purpose of state or federal fraudulent transfer or other avoidance statutes.
7. Guarantor's Waivers. Guarantor forever waives (whether occurring before or after termination or purported termination of this Guaranty):
(a) Any defense arising by reason of the application by Borrower of the proceeds of any indebtedness for purposes other than the purposes represented by Borrower or Creditor or intended or understood by Creditor or Guarantor.
(b) Any right to require Creditor to proceed against Borrower or any other party, to proceed against or to exhaust any security held from Borrower or any other party, to apply the property of Borrower first to discharge the Guaranteed Indebtedness hereunder, to give notice of the terms, time and place of any public or private sale of personal property security held from Borrower and otherwise to comply with applicable provisions of the Uniform Commercial Code as adopted in Florida, or to pursue any other remedy in Creditor's power whatsoever.
(c) Any defense arising by reason of disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability either in whole or in part of Borrower for the Guaranteed Indebtedness.
(d) Any defense arising out of any act or omission by Creditor which directly or indirectly results in or contributes to the discharge of Borrower or any indebtedness by operation of law or otherwise.
(e) Any defense arising by reason of any modification of the Guaranteed Indebtedness in any form whatsoever, including without limitation, the renewal, extension, acceleration or other change in time for payment of the Guaranteed Indebtedness, or other change in the terms of the Guaranteed Indebtedness or any part thereof, including increase or decrease of the rate of interest thereon.
(f) Any right of subrogation, and any defense Guarantor may have based upon any election of remedies by Creditor which eliminates Guarantor's subrogation rights or rights to proceed against Borrower or any other person for reimbursement.
(g) Any right to enforce any remedy which Creditor now has or may hereafter have against Borrower, any other Guarantor or any benefit of, or any right to participate in any security whatsoever now or hereafter held by Creditor.
(h) All presentments, demands for payment or performance, notices of non-performance, protests, notices of protest, notices of dishonor, notices of default or delinquency, notice of acceleration, notice of cost, expenses and interest thereon, notice of interest on interest and late charges, diligence in taking any action to collect the indebtedness or enforce Creditor's right under any agreement with Borrower in proceeding against any of the rights and interests in and to property securing the Guaranteed Indebtedness, and notices of acceptance of this Guaranty and any right to enforce any remedy which Creditor now has or later may have against Borrower or any other person, and agrees that Creditor may, at its election, exercise any right or remedy it may have against Borrower or any security held by Creditor.
(i) Any claim or defense arising out of Creditor's failure to perfect any lien or security interest securing the Guaranteed Indebtedness.
(j) Any claim resulting from any act or omission by Creditor which directly or indirectly results in or contributes to the loss, limitation or impairment of the right to recover any deficiency from Borrower.
8. Guarantor's Understandings with Respect to Waivers. Guarantor warrants and agrees that each of the waivers set forth above are made with Guarantor's full knowledge of their significance and consequences, and that under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any of said waivers are determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the maximum extent permitted by law.
9. Creditor's Rights with Respect to Guarantor's Property in Possession of Creditor. In addition to all liens upon, and rights of setoff against the monies or other property of Guarantor given to Creditor by law, Creditor shall have a lien upon and a right of setoff against all property of Guarantor now or hereafter in the possession of or on deposit with Creditor, whether held in a general or specific account or deposit or for safekeeping or otherwise, and every such lien and setoff may be exercised without demand or notice to Guarantor. No lien or right of setoff shall be deemed to have been waived by any act or conduct on the part of Creditor, or by any neglect to exercise such right of setoff or to enforce such lien, or by any delay in so doing, and every right of setoff and lien shall continue in full force and effect until such right or setoff or lien is specifically waived or released by an instrument in writing executed by Creditor.
10. Subordination of Guarantor's Debt to Guarantor. Any Guarantor Debt is hereby subordinated to all indebtedness of Borrower to Creditor and, in the event of any default in any documents evidencing the Guaranteed Indebtedness of Borrower to Creditor, Guarantor acknowledges that Borrower shall be obligated to suspend all payments to Guarantor of Guarantor Debt until such time as said default has been cured or the Guaranteed Indebtedness fully repaid. At no time shall interest on Guarantor Debt be paid more frequently than once per month nor principal more frequently than annually. Any Guarantor Debt is assigned to Creditor as security for this guaranty and the Guaranteed Indebtedness and if Creditor requests shall be collected and received by Guarantor as trustee for Creditor and to be paid over to Creditor on account of the Guaranteed Indebtedness, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this guaranty. Any such note now or hereafter evidencing Guarantor Debt shall be marked with a legend that the same is subject to this Agreement and, if Creditor so requests, shall be delivered to Creditor. Guarantor will, and Creditor is hereby authorized and given a power of attorney which is coupled with an interest and irrevocable, in the name of Guarantor from time to time to execute and file financing statements and continuation statements and execute such other documents and take such other action as Creditor deems necessary or appropriate to perfect, preserve and enforce its rights hereunder.
11. Financial Reporting. Guarantor shall provide to Creditor his personal tax returns annually on or before thirty (30) days after each tax year end, unless an extension for same is filed, in which case the return shall be delivered within thirty (30) days of filing the return with extension. Guarantor shall also provide his personal financial statements in form satisfactory to Creditor annually, every thirteen (13) months (30 days after latest personal financial statement).
12. Waiver of Authentication of Validity of Acts of Corporation or Partnership. Where Borrower is a corporation or partnership, it is not necessary for Creditor to inquire into powers of Borrower or the offices, directors, partners or agent acting or purporting to act in their behalf and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
13. Consent to Attachment or Garnishment. In the event that Borrower obtains a money judgment against Guarantor through the enforcement of this Guaranty, Guarantor hereby consents to the attachment or garnishment by Creditor of Guarantor's wages in accordance with applicable Florida law.
14. Notice to Creditor. All notices from Guarantor to Creditor shall be effective five (5) days after actual receipt by an officer of Creditor at Creditor's offices at: _________________________.
15. Attorney's Fees. All payments, advances, charges, costs and expenses, including reasonable attorneys' fees and appellate attorney's fees, made or incurred by Creditor in the enforcement of this Guaranty or in the collection of any of the Guaranteed Indebtedness, regardless of the forum of the dispute and including, but not limited to, arbitration, shall be paid by Guarantor to Creditor immediately upon demand.
16. Entire Agreement. This Guaranty embodies the entire agreement and understanding between Guarantor and Creditor with respect to the subject matter set forth herein, and supersedes all prior agreement and understandings relating thereto. No course of prior dealings between the parties, no usage of the trade, and no parole or extrinsic evidence of any nature, shall be used or be relevant to supplement, explain or modify any term used herein.
17. Obligations of Married Persons. Any married person who signs this guaranty agrees that recourse may be had against his or her separate property for all his or her obligations under this guaranty.
18. Florida Law Governs; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of Florida. In the event any litigation shall arise hereunder or pertaining hereto, venue shall be proper in __________ County, Florida.
19. Descriptive Headings. The descriptive headings used and inserted in this Agreement are for convenience only and shall not be deemed to affect the meaning or construction of any provision hereof.
20. Severability. Any provision of this Agreement which shall be held invalid or unenforceable under applicable law shall be ineffective without invalidating the remaining provisions of this Agreement.
21. No Oral Modification. The guaranty may not be changed or terminated orally, but only in an agreement in writing signed by the party against whom enforcement of such change or termination is sought.
22. No Oral Representations Limiting Enforcement. Guarantor acknowledges Creditor's intention to enforce this Guaranty to the fullest extent possible and Guarantor acknowledges that Creditor has made no statements to Guarantor that could be construed as a waiver of Creditor's right to enforce this Guaranty to the fullest extent permissible.
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed on the day and year first hereinabove written.
|SIGNED, SEALED AND DELIVERED | |
|IN THE PRESENCE OF: | |
|______________________________________ Witness Signature |__________________________________, ____________, individually |
| |Address:___________________________ |
|______________________________________ |__________________________________ |
|Typed/Printed Witness Name | |
|______________________________________ Witness Signature | |
|______________________________________ | |
|Typed/Printed Witness Name | |
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this day of _______________, 2016 by______________, who is personally known to me or who has produced ___________________ as identification.
| | |
|My Commission Expires: | |
| |Notary Public |
| | |
| | |
| |Print/Type Name of Notary |
| | |
| |Commission No. |
Notice to Guarantor of Garnishment Waiver
IF YOU PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR A CHILD OR OTHER DEPENDENT, ALL OR PART OF YOUR INCOME IS EXEMPT FROM GARNISHMENT. UNDER FLORIDA LAW, YOU CAN WAIVE THIS PROTECTION ONLY BY SIGNING THIS DOCUMENT. BY SIGNING BELOW, YOU AGREE TO WAIVE THE PROTECTION FROM GARNISHMENT.
I certify that I have read and understood the notice above, and agree to waive the protection from garnishment before signing the Guaranty of even date.
______________________________ ________________________________
Signature of Guarantor Date
Print Name: ____________________
I have fully explained this document to the Borrower.
_____________, a _____________bank,
By:___________________________ ________________________________
__________, Senior Vice President Date
LIMITED LIABILITY COMPANY BORROWING CERTIFICATE
We, the undersigned, hereby certify to ____________("Bank") that we are all of the Members of ___________, ___, a limited liability company (the "Company"), duly organized and existing under the laws of the State of Florida; that the following certification is in accordance with the Articles of Organization and the Regulations of the Company all of which are in full force and effect and have not been rescinded or modified.
That_____________, as _____________ of the Company is hereby authorized; from time-to-time; to cause the Company to obtain loans from Bank, in such amounts, for such lengths of time and at such rates of interest and upon such items and conditions as said Manager may deem appropriate, to execute and deliver to the Bank, in the name of and on behalf of this Company, negotiable or non-negotiable notes or demands and other like obligations of the Company, mortgages, security agreements, indemnity agreements, guaranty agreements and other agreements, assignments, endorsements, hypothecations, and any and all other instruments or documents considered by the Bank in accordance with any applicable commitment letter or loan approval to be necessary or proper in connection with any transaction, or transactions, between or through the Bank and the Company and all such transactions shall be conclusively presumed to be legally binding upon the Company; and
The undersigned shall certify to the Bank changes in the name of the Manager of the Company from time-to-time hereafter as changes are made, and the Bank shall be fully protected in relying on such certifications and shall be indemnified and saved harmless from any claims, demands, expenses, loss, or damage resulting from, or growing out of, honoring the signature of any Manager so certified, or refusing to honor any signature not so certified; and
The foregoing shall remain in full force and effect until express written notice of their amendment or rescission shall have been furnished to and received by the Bank, and that receipt of such notice shall not affect any action taken by the Bank prior thereto; and
The undersigned are hereby authorized and directed to certify to the Bank that the foregoing are in conformity with the Articles of Organization and Regulations of the Company and are in full force and effect and have not been rescinded or modified.
|__________________________________ |
|Member |
| |
|__________________________________ |
|Member |
AFFIDAVIT REGARDING
LIMITED LIABILITY COMPANY
Before me, the undersigned authority personally appeared ____________who, upon being duly sworn, deposes and says:
1. He is the ___________ of___________, a _______________ (the "Company").
2. The Company is currently in existence under a valid Operating Agreement and is registered with the Florida Department of State and assigned registration number________________.
3. The Company has not been dissolved and is in full force and effect.
4. The undersigned, as the ______________ of the Company, is hereby authorized and empowered to execute and deliver to a Bank, on such terms and conditions as he may approve, any promissory note, mortgage, and any and all other documents, instruments, certificates, consents, affidavits and papers (collectively, the "Loan Documents") required or appropriate to effectuate, evidence, secure and perfect, and to take any and all actions required to consummate, a loan of the Company from ________________ as contemplated by Loan Documents, on such terms and conditions as Manager shall approve, such approval to be conclusively evidenced by the execution and delivery thereof.
5. Neither the Company nor its members are debtors in a bankruptcy proceeding.
6. This Affidavit is made in order to induce the Bank to make a loan to the Company in the amount of $_________________.
7. I further state that I am familiar with the nature of an oath and with the penalties as provided by the laws of the State aforesaid for falsely swearing to statement made in an instrument of this nature. I further certify that I have read, or have heard read to me, the full facts of this Affidavit, and understand its content.
| |AFFIANT: |
| |By:________________________________ |
| |______________ |
|STATE OF FLORIDA | |
|COUNTY OF ____ | |
The foregoing instrument was acknowledged before me this ____ day of____________, 2016 by _________________ who is personally known to me or who has produced a __________________ as identification.
_____________________________
Notary Public, State of Florida
CORPORATE RESOLUTION OF GUARANTOR
The undersigned, hereby certifies to _______________("the Bank") that I am the duly elected Secretary of ___________________, a corporation duly organized and existing under the laws of the State of Florida; that the following is a true and correct copy of resolutions adopted by the board of directors of said corporation at a meeting duly held on the day of___________, 2016 ; that said meeting was called and held pursuant to law at which a quorum was present; and that said resolutions are in full force and effect and have not been rescinded or modified.
RESOLVED, that the President of this corporation is hereby authorized to execute and deliver all documents necessary to evidence the corporation's unconditional guaranty of the loan from Bank, to___________, _____, a_____________, in the amount of $______________in addition to such amounts as may be otherwise authorized; and
FURTHER RESOLVED, that the Secretary (or any other officer of this corporation) shall certify to Bank the names of the presently duly elected and qualified officers of this corporation and shall from time-to-time hereafter as changes in the personnel of said officers are made, immediately certify such changes to Bank, and Bank shall be fully protected in relying on such certifications and shall be indemnified and saved harmless from any claims, demands, expenses, loss, or damage resulting from, or growing out of, honoring the signature of any officer so certified, or refusing to honor any signature not so certified; and
FURTHER RESOLVED, that the foregoing resolutions shall remain in full force and effect until express written notice of their amendment or rescission shall have been furnished to and received by Bank, and that receipt of such notice shall not affect any action taken by the Bank prior thereto; and
FURTHER RESOLVED, that the undersigned is authorized and directed to certify to Bank the foregoing resolutions and to certify that the provisions thereof are in conformity with the Articles of Incorporation and By-Laws of this corporation and that said resolutions are in full force and effect and have not been rescinded or modified.
I further certify that there is no provision in the Articles of Incorporation or By-Laws of said corporation limiting the power of the Board of Directors to pass the foregoing resolutions; that the same are in conformity with the provisions of said Articles of Incorporation and By-Laws; and that I am the custodian of the minutes of said Board of Directors.
I have hereunto subscribed my name as Secretary of said corporation, pursuant to due and lawful corporate authority this the ___________ day of ____________2016.
|________________________________ |
|Print Name ______________________ |
|Secretary |
This instrument prepared by:
____________________
____________________
ASSIGNMENT OF LEASES, RENTS AND PROFITS
THIS AGREEMENT, effective the ______ day of ___________, 2016, by and between, _____________, a______________, whose mailing address is______________________, hereinafter referred to as “ASSIGNOR”, and ______________, a __________bank, whose mailing address is___________________, hereinafter referred to as “ASSIGNEE.”
W I T N E S S E T H:
FOR VALUE RECEIVED, and as additional security for the indebtedness hereinafter specifically set forth, the ASSIGNOR hereby assigns, sets over, transfers and conveys unto the ASSIGNEE all of the right, title and interest of the ASSIGNOR in and to the rents, leases, profits, and other business income, hereinafter referred to as “Rents” from the following legally described property:
SEE ATTACHED EXHIBIT “A”
1. This Assignment is intended to be operative from the date set forth above, is intended to create a present assignment of the rights of ASSIGNOR with respect to the Rents herein described and the rights of ASSIGNEE hereunder are not intended to be conditioned upon the occurrence of an event of default.
2. This Assignment shall secure all sums secured by that certain Mortgage and Security Agreement (“Mortgage”) of even date and in the amount of $________________, or any extension or renewal thereof, made, executed and delivered by the ASSIGNOR to the ASSIGNEE, encumbering the property described hereinabove, together with all improvements located on the above described premises, and this Assignment shall remain in effect until all such sums shall have been fully paid and satisfied, at which time this Agreement is to be fully satisfied, canceled and released and the releasing of said Mortgage shall constitute a release hereof.
3. The ASSIGNOR does hereby authorize and empower the said ASSIGNEE to collect the Rents payable as they shall become due, and does hereby direct each and all of the tenants, if any, of the aforesaid premises to pay such Rents as may be due or shall hereafter become due to the said ASSIGNEE upon demand for payment thereof by said ASSIGNEE. So long as there exists no event of default herein, or in the Note, Mortgage, or other documents evidencing the above-referenced loan, the ASSIGNOR is granted a license to collect or continue collecting the Rents, but not more than two (2) months prior to accrual thereof. ASSIGNOR agrees to collect and hold said Rents as trust funds to be applied in the following priority: (a) to the payment of taxes and assessments against the Mortgaged premises; (b) to the cost of insuring, maintaining and operating the Mortgaged premises; (c) to the satisfaction of all obligations set forth in the various leases of the Mortgaged premises; and (d) to the payment of all indebtedness hereby secured. This license shall terminate without notice upon default of ASSIGNOR in any of the above-referenced loan documents and ASSIGNEE shall thereafter be entitled to exercise all of ASSIGNOR’S rights under the leases.
4. The authority and power of the ASSIGNEE to collect said Rents from the Mortgaged premises, as set forth herein, may be exercised and said Rents collected with or without the taking of possession of said real property, or any part thereof, and without the necessity of (but nothing herein shall be construed to prohibit the ASSIGNEE) instituting foreclosure of its mortgage, and an action upon its Note or an action upon this Assignment directly against the tenants under the leases assigned herewith.
5. In furtherance of this Assignment, the ASSIGNOR does hereby additionally authorize and empower the ASSIGNEE by its employees, agents, or representatives, at the option of the ASSIGNEE upon the occurrence of any default, as aforesaid, to notify any tenants under the leases to pay rent directly to it and to enter upon the aforesaid premises and to collect, in the name of the ASSIGNOR or in its own name as ASSIGNEE, the Rents accrued but unpaid and in arrears at the date of such default, as well as the Rents thereafter accruing and becoming payable during the period this Assignment is operative; and to this end, the ASSIGNOR further agrees to cooperate and to assist the ASSIGNEE, its employees, agents or representatives, in all reasonable ways with the collection of said Rents.
6. The ASSIGNOR does hereby authorize (but nothing herein shall be deemed to require or obligate ASSIGNEE to do so) the ASSIGNEE upon such entry, to take over and assume the management, operation and maintenance of the said premises and to perform all acts necessary and proper in its sole discretion and to expend such sums as may be necessary in connection therewith, including the authority to effect new leases or to make concessions to tenants; the ASSIGNOR hereby releasing all claims against the ASSIGNEE arising out of such management, operation and maintenance, excepting the liability of the ASSIGNEE to account as hereinafter set forth.
7. This Assignment is given as additional security for the performance of each and all of the obligations and covenants of the Note and Mortgage above described (or any extension or renewal thereof).
8. It is further covenanted and agreed that the ASSIGNOR will keep, observe and perform all of the covenants on the part of the Lessor to be kept, observed and performed in any lease affecting any portion of the Mortgaged premises. If the ASSIGNOR fails to keep, observe and perform any covenant of any such lease, the ASSIGNEE shall have the right, at its option, to keep, observe and perform such covenant on behalf of the ASSIGNOR or to declare, if not cured after thirty (30) days written notice, all sums secured by the Mortgage referred to herein to be immediately due and payable and avail itself of any and all remedies provided for in said Mortgage in the event of default. In the event the ASSIGNEE should exercise its option to keep, observe or perform any of the Lessor’s obligations under any lease affecting the premises, it shall be entitled to recover from the ASSIGNOR immediately upon demand any expenses incurred or amounts advanced in performing such covenants, together with interest at the highest lawful rate per annum now permitted by written contract under the laws of the State of Florida from the date of such advance. Should the ASSIGNOR fail to repay the ASSIGNEE any such expenses or advances as herein provided, ASSIGNEE may, at its option, with or without notice, declare all sums secured by said Mortgage to be immediately due and payable and avail itself of any and all remedies provided for therein in the event of default.
9. It is understood and agreed that neither the existence of this Assignment nor the exercise of ASSIGNEE’s privilege to collect said rents, leases, or profits, rights and benefits hereunder, shall be construed as a waiver by the ASSIGNEE or its successors and assigns, of the right to enforce the payment of the debt hereinabove mentioned, in strict accordance with the terms and provisions of the Mortgage and Note for which this Assignment is given as additional security.
10. Should any of the terms or provisions of this Assignment or the Mortgage or the Note be delivered to the hands of an attorney for collection or representation by the ASSIGNEE, the ASSIGNOR covenants and agrees to pay all reasonable attorney’s fees whether suit be filed or not, and such fees at the trial and appellate level. The ASSIGNOR further agrees to pay all costs associated with legal proceedings to enforce this Agreement. Venue shall be proper in the County in which the Mortgage is recorded.
11. This Agreement is intended to bind and apply to the parties herein referred to as well as their successors and assigns.
12. In recognition of the higher costs and delay which may result from a jury trial, the parties hereto waive any right to trial by jury of any claim, demand, action, or cause of action either arising hereunder or under any other instrument, document, or agreement executed or delivered in connection herewith or in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect hereto or any other instrument, document or agreement executed or delivered in connection herewith, in each case whether now existing or hereafter arising and whether sounding in contract or tort or otherwise; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by trial without a jury and that any party hereto may file an original counterpart or a copy of this section with any court as written evidence of the consent of the parties hereto to the waiver of the right to trial by jury.
IN WITNESS WHEREOF, the ASSIGNOR and ASSIGNEE have hereunto set their hands and seals on the day and year first above written.
|SIGNED, SEALED AND DELIVERED |___________, a ____________________ |
|IN THE PRESENCE OF: | |
|______________________________________ Witness Signature |By:___________________________________ |
| |__________ , ____________ |
|______________________________________ | |
|Typed/Printed Witness Name | |
|______________________________________ Witness Signature | |
|______________________________________ | |
|Typed/Printed Witness Name | |
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this day of__________, 2016 by ____________ as ________ of___________, a__________________, and who is personally known to me or who has produced ___________________ as identification.
| | |
|My Commission Expires: | |
| |Notary Public |
| | |
| | |
| |Print/Type Name of Notary |
| | |
| |Commission No. |
EXHIBIT “A”
LEGAL DESCRIPTION OF MORTGAGE PROPERTY
COMMERCIAL LOAN EXPENSE SUMMARY
FOR LOAN RELATED EXPENSES PAID AT CLOSING
|BANK: |_________, a _______________ |
|BORROWER: |_________, ________________ |
|DATE OF CLOSING: |______________, 2016 |
|AMOUNT OF LOAN: |$______________ |
|LOAN EXPENSES: | |
| | |
|Intangible Tax on $_______________mortgage |$__________ |
|Documentary Stamps on $____________ | _______ |
|Recording Fees: | |
| Mortgage (___ pages)($______) recorded in |____.00 |
|__________County | |
| Assignment of Rents, Leases and Profits (___ pages) |____.00 |
|($__________) recorded in ____County | |
| UCC-1 –________County |___.00 |
|(___ pages) ($________) | |
|UCC-1 (__ pages State of Florida) |__.00 |
|Bank’s Attorney’s Fee |_____.00 |
|Title Insurance |_____.00 |
|Appraisals: | |
| ___________________ |_______.00 |
| ___________________ |_______.00 |
| ___________________ |_______.00 |
|Flood Certificate fee |___.00 |
|Loan Fee |______.00 |
| | |
|TOTAL |$______.00 |
| | |
| | |_______________, a _______________ |
| | |By:______________________________________ |
| | |___________ as ______________ |
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made the ______ day of____________, 2016 between____________, a___________________, hereinafter "Borrower", and______________, a ___________bank, hereinafter "Bank".
WHEREAS, Borrower desires to obtain a loan from Bank to be used for the commercial business purposes as more particularly set forth herein; and
WHEREAS, Bank is willing to make such loan to Borrower subject to the terms of various loan documents including but not limited to this Loan Agreement.
NOW, THEREFORE, in consideration of the extension of the Loan referenced herein from Bank to Borrower and the mutual covenants and promises herein as well as other good and valuable consideration, the parties agree as follows:
1. DEFINITIONS. Except as otherwise expressly provided in this Agreement, the capitalized terms defined in this SECTION 1 shall have the respective meanings ascribed to them below for all purposes of this Agreement and shall include the plural as well as the singular member:
"AGREEMENT" means this Loan Agreement as originally executed and as it may be amended or supplemented from time to time in accordance with its provisions.
“ASSIGNMENT OF RENTS” means the assignment of rents, leases and profits which encumbers the real property described therein and which secures the Note”.
"BUSINESS DAY" means any day that is not a Saturday, Sunday, or bank holiday in the State of Florida.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally accepted accounting principles in effect at the time any calculation is required to be made under this Agreement or any financial statement or report as prepared pursuant to it. However, the Bank shall have the option to elect in writing, at any time and from time to time, for all purposes of this Agreement, that generally accepted accounting principles in effect as of the date of this Agreement be used in any case in which the application of accounting principles in effect at any later date would make the covenants contained in this Agreement less restrictive.
"LOAN" means the extension of business purpose credit from Bank to Borrower as evidenced by the Note and subject to the terms hereof.
"LOAN DOCUMENTS" means the Loan Agreement and all other documents required by Bank in its discretion to be executed in connection therewith to evidence the term of this loan, including but not limited to the Note and Mortgage, and all other instruments evidencing security interest of Bank. All Loan Documents shall be in form satisfactory to Bank in its discretion.
“MORTGAGE" shall refer to the Mortgage and Security Agreement which encumbers the real and personal property described therein and which secures the debt evidenced by the Note, in form satisfactory to Bank.
"NOTE" shall mean the promissory note of the Borrower in form satisfactory to Bank which evidences the Loan and all replacements, renewals and amendments thereof.
2. THE LOAN. Subject to the terms and conditions of this Agreement, the Bank shall make Loans to the Borrower as described in this Section 2.
LOAN. Upon the satisfaction by the Borrower or the waiver by the Bank of all of the conditions specified in this Agreement, the Bank shall make a loan to the Borrower in the total aggregate principal amount of $______________ in accordance with the terms of this Agreement. The Loan shall be evidenced by the Loan Documents and shall be repaid as set forth in the Note. The Loan shall be fully funded at closing.
THE NOTE. The Loan shall be evidenced by a Note executed by the Borrower, dated the date of this Agreement. The Note shall bear interest on the principal amount from time to time outstanding as set forth in the Note. The Note agreed to between the Borrower and the Bank is a Note in the face amount of _______________________ and 00/100 Dollars ($_______________). Interest shall be calculated on a three hundred sixty (360) day basis.
PREPAYMENT OF NOTE. The Borrower shall have the right to prepay the Note, in whole or in part at any time, or from time to time, subject to any prepayment penalties set forth in the Note. Any such prepayments shall be applied to reduce the balance of the Loan as set forth in the Note.
PAYMENT OF THE NOTE. Each payment and prepayment by the Borrower of principal and interest or principal or interest on the Note shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debt. If any payments of principal and interest or principal or interest on the Note becomes due and payable on a day other than a Business Day, the due date thereof shall be extended to the next succeeding Business Day.
APPLICATION OF LOAN PROCEEDS. The Loan proceeds shall be used to purchase certain real property and improvements located at______________________________, ___________________ County, Florida.
3. SECURITY AND GUARANTY. Payment of the Note and all other present and future obligations of the Borrower to the Bank shall be secured and guaranteed as provided in this Section 3.
3.1 MORTGAGE. As security for the Note, Borrower shall deliver to the Bank the Mortgage encumbering the real and personal properties described therein and located at____________________________, ___________ County, Florida. The Mortgage shall constitute a valid first mortgage lien on the encumbered property inferior in priority only to existing zoning and governmental regulations. As evidence of such priority Borrower shall deliver a Title Insurance Commitment in the amount of the Loan on or before the date hereof, such commitment being subject to the approval of Bank's attorney. Borrower shall further execute in favor of Bank the Assignment of Rents in form satisfactory to Bank. This Assignment of Rents shall give Bank the rights as specified in that document in the event of default by the Borrower of the terms as evidenced by the loan documents.
3.2 GUARANTY. The repayment of the Loan shall be at all times guaranteed, jointly, severally and continuously, by____________, individually, ____________, individually, and ______________, individually ("Guarantors"). The form of guaranty agreement shall be provided by and acceptable to Bank in its discretion.
3.3 UCC-1. Borrower hereby consents to and directs Bank to file, in its discretion, such UCC-1 financing statements as are deemed necessary by Bank to perfect it security interest in any personal property which Borrower has granted as security for the Loan.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents to the Bank that:
FINANCIAL CONDITION. The financial statements of the Borrower furnished to the Bank, fairly represent the financial condition of the Borrower as of their respective dates and the results of their business pursuits for the periods covered thereby. To the best of the Borrower's knowledge and belief, as of the date of this Agreement, the Borrower has no material contingent obligations, liabilities for taxes, long-term leases, or unusual forward or long-term commitments not disclosed by, or, reserved against in, the financial statements as noted hereinabove; and at such date there were no material unrealized or anticipated losses from any unfavorable commitments of the Borrower. The financial statements were prepared in accordance with Generally Accepted Accounting Principles consistently maintained throughout the periods involved.
LITIGATION. There is no suit or proceeding (including proceedings by or before any governmental commission, board, bureau, or other administrative agency) or criminal investigation or proceeding pending, or to the knowledge of the Borrower threatened, against the Borrower which, if adversely determined, would have a material adverse affect on the financial condition or business of the Borrower. Further, the Borrower is not and will not violate any law that would result in the forfeiture of Borrower's property and will provide immediate notice to the Bank should any action be threatened or brought against Borrower or Borrower's property.
PAYMENT OF TAXES. The Borrower has filed or caused to be filed all federal, state and local tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on said returns or on any assessment received, to the extent that such taxes have become due, except as otherwise permitted by the provisions hereof.
AGREEMENTS. The Borrower is not a party to any agreement or instrument or subject to any charter or other corporate restriction materially adversely affecting its business, properties, assets, operations, or condition (financial or otherwise). The Borrower is not in default in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument to which it is a party.
THIRD-PARTY APPROVALS. The execution, delivery, and performance of this Agreement, the Note, the Mortgage, the Loan Documents, and all other instruments and documents executed in connection with this transaction do not require the consent or approval of any other person or entity.
ORGANIZATION AND GOOD STANDING. Borrower is duly organized and existing in good standing under the laws of the state in which it was established and has the power and authority to own its properties and assets and to transact the business in which it is engaged and is or will be qualified in those states wherein it proposes to transact business in the future.
AUTHORIZATION AND POWER. The signor hereof has the power and requisite authority to execute, deliver and perform the Loan Documents to be executed. The signer hereof is duly authorized to, and Borrower has taken all action necessary to authorize the signer hereof, to execute and deliver the Loan Documents.
FULL DISCLOSURE. There is no material fact that Borrower has not disclosed to Bank which could have a material adverse effect on the properties, business, prospects or condition (financial or otherwise) of Borrower. Neither the financial statements referenced herein nor any certificate or statement delivered herewith or heretofore by Borrower to Bank in connection with negotiations of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary to keep the statements contained herein or therein from being misleading.
USE OF FUNDS AND COLLATERAL. The proceeds hereof and all of the collateral for this loan shall be used for lawful business purposes of Borrower.
5. CONDITIONS OF LENDING. The obligation of the Bank to make the Loan and to fund any sums under the Note, whether funded at the closing date of the Loan or thereafter, as herein provided, is subject to the following conditions precedent, unless the Bank shall otherwise agree in writing.
REPRESENTATIONS AND WARRANTIES. At the time of the borrowing hereunder, the representations and warranties set forth in Section 4 hereof shall be true and correct on and as of such time, except to the extent that such representations and warranties expressly relate to an earlier date.
NO DEFAULT. At the time of any requested borrowing hereunder, the Borrower shall be in compliance with all the terms and provisions set forth herein on its part to be observed or performed, and no event of default hereof or in any of the other Loan Documents, nor any event which upon notice or lapse of time or both would constitute an event of default, shall have occurred and be continuing, unless such event of default shall have been waived by the Bank.
LOAN DOCUMENTS. On or prior to the date of the first borrowing and any subsequent borrowing hereunder, the Bank shall have received, duly executed, the Note, the Mortgage, the Assignment of Rents and all other Loan Documents required by the Bank to be executed and delivered in connection with this transaction, in form and content satisfactory to the Bank and its legal counsel.
6. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees that from the date hereof and until payment in full of the Note, unless the Bank shall otherwise consent in writing, the Borrower shall fully comply with the following provisions:
INSURANCE. The Borrower shall timely procure and at all times during the Loan maintain and comply with general commercial liability insurance coverage in amounts and subject to terms required in the Mortgage and consistent with that maintained by similar entities and subject to approval by Bank.
PAYMENT OF INDEBTEDNESS, TAXES, ETC. The Borrower and the Guarantor(s) shall:
Pay all of its indebtedness and obligations promptly and in accordance with normal terms; and
Pay and discharge or cause to be paid and discharged promptly all taxes, assessments, and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal, or mixed, and upon any part thereof, before the same shall become in default, as well as all lawful claims for labor, materials, and supplies, or otherwise which, if unpaid, might become a lien or charge upon such properties or any part thereof; provided, however, that the Borrower shall not be required to pay and discharge any such tax, assessment, charge, levy, or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books, reserves in an amount equal to 50% of any such tax, assessment, charge, levy or claim so contested.
STAMP OR EXCISE TAX. The Borrower will pay all documentary stamp taxes and intangible taxes applicable to the Note and Mortgage. If any stamp or excise tax shall now or hereafter become applicable with respect to this Agreement, the Note, the Mortgage, or any loan or credit extended hereunder, or otherwise, the Borrower will promptly pay such tax in full (including interest and penalties, if any) and will indemnify and hold the Bank harmless with respect thereto.
COSTS AND EXPENSES. The Borrower will pay all reasonable costs and expenses in connection with the preparation, execution, filing, and recording of this Agreement, the Note, the Mortgage and related documents, including but not limited to: (a) fees and expenses of the Bank's counsel; (b) recording and filing charges; and (c) documentary stamp taxes and intangible taxes. To the extent that said costs and expenses are known at the time of closing, the Bank is authorized and directed to pay such costs and expenses out of the loan funds at closing.
LITIGATION. The Borrower will notify the Bank of any pending or threatened litigation by or against the Borrower that may involve a claim for damages in excess of Fifty Thousand Dollars ($50,000.00) or a request for injunctive or other relief, which, if granted, might materially impair the conduct of the business of the Borrower or might materially affect its business, operations, assets, properties, prospects, or condition (financially or otherwise).
FINANCIAL INFORMATION. During the life of the Loan, Borrower agrees to provide for itself, and to cause Guarantors to provide, where applicable, the following financial information to Bank:
Annual Corporate tax returns of Borrower [AND NAME ANY ENTITY GUARANTOR] during the life of the loan not later than thirty (30) days after the filing of same.
Compiled financial statements of______________ [ENTITY GUARANTOR], in form satisfactory to Bank annually, within one hundred twenty (120) days of fiscal year end.
Personal Tax Returns of ______________ on or before thirty (30) days after the applicable tax year end, unless an extension for same is filed, in which case the return shall be delivered within thirty (30) days of filing the return with extension.
Personal financial statements of __________________ in form satisfactory to Bank annually, every thirteen (13) months (30 days after the latest personal financial statement).
Such other further information as Bank may from time to time request.
DEBT SERVICE COVERAGE RATIO. During the term of the Loan, Guarantor ___________________ [ENTITY GUARANTOR] shall maintain a debt service coverage ratio of at least 1.50x which shall be calculated annually by Bank based upon the following formula: [net income plus depreciation plus amortization plus interest expense] divided by the sum of current maturing long term debt plus interest expense.
DEPOSIT ACCOUNT. Borrower agrees to maintain Borrower’s primary deposit account with Bank or any banking affiliate of Bank (defined as the deposit account into which substantially all of Borrower’s receipts from its operations are deposited and from which substantially all of Borrower’s disbursements for its operations are made), and shall keep it at all times in good standing.
NEGATIVE COVENANTS. The Borrower covenants and agrees that from the date of this Agreement until payment in full of the Note, unless the Bank shall otherwise consent in writing, the Borrower shall comply fully with the following provisions.
LIENS. The Borrower will not create, incur, assume, or suffer to exist any mortgage, pledge, lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor or lessor) upon or with respect to any of its assets, or assign or otherwise convey any right to receive income therefrom.
LIMITATION ON INDEBTEDNESS. Borrower shall not incur, create, contract, assume, have outstanding, guarantee or otherwise be or become, directly or indirectly, liable in respect of any indebtedness, except (a) indebtedness arising out of this Agreement, (b) current liabilities for taxes and assessments incurred in the ordinary course of business, (c) indebtedness in respect of current accounts payable or accrued (other than for borrowed funds or purchase money obligations) and incurred in the ordinary course of business, provided that all such liabilities, accounts and claims shall be promptly paid and discharged when due or in conformity with customary trade terms, and (d) indebtedness of Borrower reflected in the financial statements of Borrower submitted to Bank in the course of borrower application for this loan.
GUARANTIES. The Borrower will not guaranty, endorse, become a surety or an accommodation party, or otherwise in any way extend credit or become responsible for an indebtedness or other liability of any other individual, partnership, corporation, or other organization, except guaranties and endorsements made in connection with the deposit of items for collection or credit in the ordinary course of business.
LIQUIDATION, MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF SUBSTANTIAL ASSETS. If Borrower is a business entity other than an individual, Borrower shall not dissolve or liquidate, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other entity, or sell, transfer, lease or otherwise dispose of all or any substantial part of its property or assets or business; provided, however, that the foregoing shall not operate to prevent:
Mergers or consolidations of any subsidiary of Borrower or a sale, transfer to lease of assets by any such Subsidiary to Borrower; or
A merger of any entity into Borrower; provided, however, that Borrower shall be the surviving or continuing corporation and, after giving effect to such merger or consolidation: (1) Borrower shall be in full compliance with the terms of this Agreement, and (2) the management of Borrower shall be substantially unchanged.
The term "substantial part" as used herein shall mean ten percent (10%) or more of such property or assets of Borrower.
CHANGE IN OWNERSHIP. There shall be no change in the ownership structure of Borrower during the term of the Loan unless Borrower has obtained Bank’s written approval thereto prior to any such change being implemented. Bank may withhold or grant approval in its discretion.
DEFAULTS. The occurrence of one or more of the following events shall constitute an event of default (“Default”) with respect to the Note and all other present and future obligations of the Borrower to the Bank.
NONPAYMENT OF NOTE. The nonpayment of any installment of principal and interest or principal or interest on the Note or any portion thereof as set forth therein. The nonpayment of the balloon amount at maturity shall further constitute a default.
BREACH OF OTHER TERMS. A breach by the Borrower of a representation, warranty, or covenant contained in this Agreement, the Note, the Mortgage, the Assignment of Rents, or any other Loan Document or other instrument or document executed and delivered in connection with this transaction, including but not limited to the affirmative covenant regarding financial information.
OTHER DEFAULTS. A default by the Borrower in the performance or observance of a provision of any lease, contract, agreement, mortgage, promissory note, instrument, or other obligation or commitment to which it is a party or in respect of which it is otherwise liable.
FINANCIAL STATEMENTS. Failure by the Borrower to provide updated financial information as required herein.
APPOINTMENT OF RECEIVER, BANKRUPTCY, ETC. The Borrower shall (1) apply for or consent to the appointment of a receiver, trustee, or liquidator of itself or of all or of a substantial part of its assets, (2) be unable or admit in writing its inability to pay its debts as they mature, (3) make a general assignment for the benefit of creditors, (4) be adjudicated as bankrupt or insolvent, or (5) file a voluntary petition in bankruptcy or an answer seeking reorganization or an arrangement with creditors or to take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency for the purpose of effecting any of the foregoing.
REORGANIZATION, ETC. An order, judgment or decree shall be entered, with or without the application, approval or consent of the Borrower, by any Court of competent jurisdiction, approving a petition seeking reorganization of the Borrower or appointing a receiver, trustee or liquidator of the Borrower or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days.
OBLIGATIONS FOR BORROWED MONEY. Indebtedness of the Borrower on any obligation now or hereafter incurred or outstanding shall become due and payable by its terms and shall not be paid, renewed, or extended within the grace period allowed by any agreement relative to such indebtedness, or any default or event of default shall occur in respect of any such indebtedness and shall continue for a period of time sufficient to cause or permit the acceleration of maturity thereof.
FINAL JUDGMENT. The rendition of one or more final judgments against the Borrower for the payment of damages or money in excess of Fifty Thousand Dollars ($50,000.00), in the aggregate, if the same are not discharged or the issuance of writs of execution or of similar process with respect thereto are not stayed within the time allowed by law for filing notice of appeal of final judgment.
ISSUANCE OF WRIT. The issuance of one or more writs of execution, garnishment, levy, attachment, distraint, or similar process against the Borrower (whether or not pursuant to a final judgment) in connection with a claim for the payment of damages or money in excess of Fifty Thousand Dollars ($50,000.00), in the aggregate, if the writs are not vacated or stayed within five (5) days after the making thereof.
LIENS IMPOSED BY LAW. The violation of any law, or any act or omission, by the Borrower that results in the imposition of one or more liens by operation of law, if the liens are not discharged within ten (10) days after they have attached and if the liens relate to a claim for the payment of damages or money in excess of Fifty Thousand Dollars ($50,000.00), in the aggregate.
SALE OF COLLATERAL. The sale, transfer, lease, encumbrance or other disposition of the collateral or any part thereof or interest therein.
9. REMEDIES.
ACCELERATION. Upon the occurrence of a Default as set forth above, and without notice or opportunity to cure, Bank may declare the then outstanding principal and all accrued but unpaid interest and other charges hereunder immediately due and payable without presentation, demand, protest or notice of any kind, all of which are hereby waived by Borrower and upon acceleration and thereafter the Note shall bear interest at the Default Rate, hereinafter defined, until all indebtedness evidenced thereby has been paid in full. Bank may thereafter pursue all remedies available to it under applicable law and/or equity to collect the sums due under, or otherwise enforce, the Note and all other Loan Documents including but not limited to enforcement of the Mortgage and Assignment of Rents.
DEFAULT INTEREST RATE. Commencing on the first date of occurrence of a Default as determined by Bank and continuing thereafter until all sums due hereunder are fully paid, the unpaid indebtedness then evidenced by the Note or other Loan Documents shall bear interest at a fixed rate equal to the maximum rate then permitted under applicable law (“Default Rate”). This Default Rate of shall apply post judgment on any money judgment obtained by Bank on the Note or the Guaranty.
APPLICATION OF PAYMENTS AFTER DEFAULT. All sums received by Bank for application to the Note after a Default may be applied by Bank first to late charges, expenses, legal fees and collection costs, and other costs, and next to interest, principal, and other amounts owing to Bank in connection with the Note in said order or in any other order selected by Bank in its sole discretion. Borrower expressly agrees and consents that Bank may, in its discretion, accept any payments after a Default, including partial payments or payments of sums less than the full amount due under the Note. Bank's acceptance of any such payment or payments shall not be deemed a waiver of Bank's right to accelerate the Note or pursue the collection of the Note or the enforcement of any of Bank's rights against the Collateral which secures the Note.
EXPENSES. In the event Bank seeks to enforce any of its rights under the Note or other Loan Documents, Borrower will pay to Bank, in addition to principal, interest and other charges due under the Note, all costs of collection or enforcement, including reasonable attorneys' fees, paralegals' fees, legal assistants' fees, costs and expenses, whether incurred with respect to collection, pre-litigation, litigation, bankruptcy proceedings, interpretation, dispute, negotiation, trial, appeal, defense of actions instituted by a third party against Bank arising out of or related to the Note or Loan Documents, enforcement of any judgment based on this Note, or otherwise, whether or not a suit to collect such amounts or to enforce such rights is brought or, if brought, is prosecuted to judgment.
SETOFF. Borrower acknowledges and agrees that bank shall in the event of any default hereunder or under any of the loan documents have the right to set off any sums of Borrower maintained in any account of Borrower’s held by Bank, and apply the sums therein toward payment of the Note or any sums due hereunder, all without notice or demand to Borrower.
10. MISCELLANEOUS
LIABILITY OF BANK. Bank shall in no event be responsible or liable to any person or entity other than Borrower for its disbursement of or failure to disburse funds hereunder, or any part thereof. No other, whether or not a party to this agreement or third party beneficiary hereto or otherwise, shall have any claim or right against Bank under this Agreement for Bank's administration hereof or for Borrower's application of proceeds disbursal hereunder, and further, Borrower agrees to indemnify and hold Bank harmless for any claim so made.
NOTICES. All notices, requests and demands shall be given to or made in writing upon the respective parties hereto at their respective addresses set forth at the head of this Agreement, or at such other address as the party shall designate for itself in writing.
TRANSACTION EXPENSES. Whether or not the transactions contemplated by this Agreement are consummated, the Borrower shall pay the Bank's expenses (including attorney's fees) in connection with the transactions contemplated by this Agreement and shall indemnify the Bank against those expenses and against all other obligations incurred by the Bank in connection with the preparation, execution, and consummation of this Agreement, and the borrowings under it.
INTEREST. No provision of this Agreement or of the Note shall require the payment or permit the collection of interest in excess of the maximum rate of interest allowed by applicable law or any higher rate of interest allowed because of any future amendment to existing law. If any payment of interest or in the nature of interest would cause the foregoing interest rate limitation to be exceeded then such excess amount shall either be credited as a payment of principal or returned to the Borrower if it so requests.
NON-WAIVER. Neither failure nor delay on the part of the Bank to exercise any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any singular or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No course of dealing between the Bank or its agents and employees and the Borrower shall be effective to change, modify, or discharge any provision of this Agreement, the Note, the Mortgage, the Assignment of Rents or any other documents pursuant to this Agreement or constitute a waiver of any default.
COUNTERPARTS. This Agreement and any other agreement executed pursuant to it may be executed in any number of counterparts, each of which shall be deemed to be an original, all of which taken together shall constitute one and the same instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the Bank.
BUSINESS DAY. Whenever any payment to be made hereunder or under the Note shall be stated to be due on a Saturday, Sunday, or a bank holiday, such payment may be made on the next succeeding Business Day and such extension of time shall be included in computing interest in connection with such payment.
ASSIGNMENT. Bank may assign this Agreement, the Note and all other Loan Documents to any other person, or entity provided that all of the provisions hereof shall continue in force and effect and, in the event of such assignment, any advances made by any assignee shall be deemed made in pursuance and not in modification hereof and shall be evidenced by the Note and secured as described herein.
DUE ON SALE. Borrower shall not assign this Agreement or the monies to be advanced hereunder or convey, assign, pledge, or encumber (except for any encumbrance granted according to the terms of the loan documents) any part of the collateral securing the loan and any such conveyance, assignment, pledge or encumbrance shall constitute a default hereunder.
RELIANCE ON COVENANTS, ETC. All covenants, agreements, representations, and warranties made herein or in any other documents delivered by or on behalf of the Borrower pursuant to or in connection herewith are material and shall be deemed to have been relied upon by the Bank, notwithstanding any investigation heretofore or hereafter made by the Bank, and shall survive the making of the loan herein contemplated.
TITLE AND HEADINGS. The Titles and headings preceding the text of the sections and subsections of this Agreement have been inserted solely for convenience of reference and shall neither constitute a part of this Agreement nor affect its meaning, interpretation, or effect.
CHOICE OF LAW. The validity, interpretation, and enforcement of this Agreement, the Note, the Mortgage, the Assignment of Rents, and all other Loan Documents and instruments executed and delivered in connection with this transaction shall be governed by the laws of Florida excluding those laws relating to resolution of conflict between laws of different jurisdictions.
SURVIVAL OF TERMS. The terms and conditions of this Loan Agreement which bind and obligate Borrower shall survive the closing of the loan contemplated herein unless expressly modified or terminated by a document executed at such closing. A failure to comply with such terms and conditions shall constitute an event of default under the Note, Mortgage and any loan document executed at such closing. Bank's obligations under the commitment letter shall not survive the closing unless expressly provided for in a document executed at closing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above written.
|WITNESS: | |
| |____________, a _________________ |
|_______________________________________ |By:_____________________________________ |
|WITNESS SIGNATURE | ___________, _____________ |
|______________________________________ | |
|TYPED/PRINTED WITNESS NAME | |
|_______________________________________ | “Borrower” |
|WITNESS SIGNATURE | |
|______________________________________ | |
|TYPED/PRINTED WITNESS NAME | |
| |___________, a __________ bank |
| | |
| | |
|_______________________________________ |By:_____________________________________ |
|WITNESS SIGNATURE | ____________, _________________ |
|______________________________________ | |
|TYPED/PRINTED WITNESS NAME | |
| | "Bank" |
|_______________________________________ | |
|WITNESS SIGNATURE | |
|______________________________________ | |
|TYPED/PRINTED WITNESS NAME | |
COMPLIANCE AGREEMENT
|BANKS NAME AND ADDRESS: |_____________ |
| |_____________ |
| |_______________ |
|BORROWER’S NAME: |_____________, a ________________ |
|BORROWER’S MAILING ADDRESS: |________________________________ |
|LOAN AMOUNT: |U.S. $________________ |
|DATE: |___________________, 2016 |
| | |
Borrower (and if more than one, then Borrowers, jointly and severally) in consideration of Bank (which term shall include Bank’s agents, successors and assigns) closing a loan (hereafter referred to as the “LOAN”) in the amount described above and disbursing the proceeds of the Loan to or for the benefit and account of Borrower, covenant and agree that if at any time Bank discovers any error and/or omission in any document or instrument executed by Borrower in connection with the Loan, then Borrower, shall execute properly and deliver promptly to Bank any document or instrument that Bank deems necessary or required to correct such error(s) and/or omission(s). Borrower understands that in order to correct an error and/or omission in the promissory note (hereafter referred to as the “NOTE”) which evidences the Loan and/or the mortgage, deed of trust, deed to secure debt or security agreement (hereafter referred to collectively as “SECURITY INSTRUMENT”) which secures the Note, and/or any other document or documents executed by Borrower in connection with the Loan (hereafter referred to individually as a LOAN DOCUMENT and collectively as the “LOAN DOCUMENTS”), it may be necessary for the Borrower to execute a new Note and/or Security Instrument and/or Loan Document or Loan Documents, and Borrower hereby agrees to execute properly, and to cause any third party thereat to execute properly, and to deliver promptly to Bank such new Note and/or Security Instrument and/or Loan Document or Loan Documents.
Borrower also covenants and agrees: (1) that the terms of this Compliance Agreement constitute an additional covenant of the Note and Security Instrument; (2) that in the event Borrower does not execute properly and deliver promptly to Bank any and all of the documents referred to above and take such further action as Bank may deem necessary or desirable within ten (10) days after Borrower’s receipt of Bank’s request for same, then Bank may, in its sole discretion, deem Borrower’s failure to comply timely with Bank’s request as a default under the terms and conditions of the Note and Security Instrument and applicable Loan Document and Bank may then proceed to enforce its rights under the Note and Security Instrument and applicable Loan Document, which enforcement may include acceleration of all sums due under the Note and, in the event such sums are not promptly paid, foreclosure of the Security Instrument that encumbers the collateral described therein; (3) that time is of the essence with respect to Borrower’s obligations hereunder; and (4) to notify Bank of any change in Borrower’s mailing address.
It is not necessary for Bank to inquire into the powers of any of the officers, directors, partners, member, or other agents acting or purporting to act on the entity’s behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Agreement.
IN WITNESS WHEREOF, Borrower has signed, sealed and delivered, this Compliance Agreement on the date first written above.
| | |
| |Borrower: |
| |_____________, a _______________ |
| | |
| |By:_______________________________________ |
| | ______________, as ______________ |
| | |
| | |
Document prepared by:
____________________
____________________
TRUST AFFIDAVIT
BEFORE ME, this day personally appeared__________, who, upon being first duly sworn, deposes and states:
1) That he is the Trustee of The Revocable Living Trust of ___________ under Agreement dated ___________ (the “Trust”) and is familiar with the records of the Trust.
2) That the Trust is in full force and effect and has not been amended or revoked.
3) That ___________ as the Trustee of the Trust, is fully authorized to execute and deliver a guaranty of the loan from____________, a______________, to.
4) That neither the Trust nor the Trustee are a debtor in any bankruptcy proceeding.
FURTHER AFFIANT SAYETH NOT
____________, ______________
STATE OF _____________________
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this ______ day of___________, 2016 by________________, who is personally known to me or who has produced ___________________________________ as identification.
My Commission Expires: Notary Public
Print/Type Name of Notary
Commission No:
NONDISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT
THIS AGREEMENT made and entered into this ______ day of___________, 2016, by and between______________________, whose address is______________________, hereinafter "Tenant" and ____________,a______________ bank, hereinafter "Mortgagee".
W I T N E S S E T H:
WHEREAS, _______________, _______, a ________________ ("Landlord") entered into with Tenant a certain lease ("Lease") dated the ______ day of _______________, 20____ under the terms of which Landlord leased unto Tenant certain premises more particularly described as__________________________; and
WHEREAS, Landlord has executed and delivered to Mortgagee a certain mortgage ("Mortgage") to secure an indebtedness of ______________________ and 00/100 Dollars ($________________), encumbering the leased premises; and
WHEREAS, Mortgagee has requested Tenant to subordinate the Lease and Tenant's interest thereunder to the lien, operation and effect of the Mortgage, and Tenant is willing to do so under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties do hereby agree as follows:
1. Subordination. Tenant does hereby subordinate the Lease and all of Tenant's right, title, interest and estate thereunder in and to the lien, operation and effect of any present or future mortgages constituting a lien upon the property, and to all advances made or thereafter to be made thereunder, and Tenant shall, upon demand, execute such further instrument subordinating the lease to the lien or liens of these mortgages as shall be requested by Landlord.
2. Status of Lease. Tenant does hereby represent to Mortgagee that:
(a) The Lease is in full force and effect and has not been modified.
(b) Landlord is not in default under any of its obligations set forth in the Lease.
(c) Tenant has not prepaid any rent and has no offsets, defenses or counterclaims to its obligations under the Lease.
(d) Tenant has paid to Landlord a security deposit of _________________________ and 00/100 Dollars ($_____________) pursuant to the terms of the Lease.
5. Nondisturbance and Quiet Enjoyment. Mortgagee agrees that as long as Tenant is not in default in the payment of rent or additional rent or in the performance of any of the terms, covenants and conditions of the Lease on Tenant's part to be performed, Tenant's possession of the demised premises and its right and privileges under the Lease, or any renewal of it, shall not be diminished by Mortgagee, and Mortgagee will not join Tenant as a party defendant in any action or proceeding for the purpose of terminating, diminishing or modifying Tenant's interest and estate under the Lease because of any default under the Mortgage or for any other reason whatsoever.
6. Attornment. In the event the Mortgage shall be foreclosed for any reason and Mortgagee or other purchaser at the foreclosure sale succeeds to the interest of Landlord under the Lease, Tenant agrees to be bound to Mortgagee or other purchaser under all the terms, covenants and conditions of the Lease for the balance of its term with the same force and effect as if Mortgagee or other purchaser were Landlord under the Lease, and Tenant does hereby agree to attorn (agree to recognize the new owner and promise to pay the rent to him as landlord) to Mortgagee or other purchaser as its landlord, the attornment to be effective and self-operative, without execution of any other instruments on the part of any of the parties to this Agreement, immediately upon Mortgagee or other purchaser succeeding to the interest of Landlord under the Lease; provided, however, that Tenant shall be under no obligation to pay rent to Mortgagee or other purchaser unless and until Tenant receives written notice from Mortgagee or other purchaser that it has succeeded to the interest of Landlord under the Lease. In the event the Mortgage shall be foreclosed for any reason and Mortgagee succeeds to the interests of Landlord under the Lease, Mortgagee agrees to be bound to Tenant under all the terms, covenants and conditions of the Lease; provided, however, that Mortgagee shall not be (a) liable for any act or omission of any prior landlord including, but not limited to, Landlord; (b) subject to any offsets or defenses that Tenant may have against any prior landlord including, but not limited to, Landlord; (c) bound by any rent or additional rent Tenant may have paid for more than the current month to any prior landlord including, but not limited to, Landlord, or (d) liable for the return of any security deposit; or (e) bound by any amendment or modification of the Lease made without Mortgagee's consent.
7. Landlord's Default. Tenant shall give Mortgagee, by certified mail, return receipt requested, a copy of any notice of default served on Landlord, provided that before such notice Tenant has been notified in writing (by way of Notice of Assignment of Rents and Leases, or otherwise) of the address of such Mortgagee. If Landlord shall have failed to cure such default within the time provided for in the Lease, then Mortgagee shall have an additional sixty (60) days within which to cure such default or if such default cannot be cured within that time, then such additional time as may be necessary to cure such default shall be granted if within such sixty (60) days Mortgagee has commenced and is diligently pursuing the remedies necessary to cure such default (including, but not limited to, commencement of foreclosure proceedings, if necessary to effect such cure), in which event the Lease shall not be terminated while such remedies are being so diligently pursued.
8. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors and assigns.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
SIGNATURES APPEAR ON FOLLOWING PAGE
Tenant and Mortgagee have executed this Agreement as of the day and year first above written.
|TENANT: |
| |
|________________________ |
| |
|By:___________________________________ |
|Print Name:____________________________ |
|Date: _________________________________ |
| |
| |
|MORTGAGEE: |
| |
|_____________, __________________ |
| |
|By:___________________________________ |
| _______________, __________________ |
| |
|Date: ________________________________ |
STATE OF FLORIDA
COUNTY OF _______
The foregoing instrument was acknowledged before me this day of______________, 2016 by ____________________________ as ____________________ of___________________, on behalf of the company, and who is personally known to me or who has produced ___________________ as identification.
|My Commission Expires: | |
| |Notary Public |
| | |
| | |
| |Print/Type Name of Notary |
| | |
| |Commission No. |
STATE OF FLORIDA
COUNTY OF ______
The foregoing instrument was acknowledged before me this day of___________, 2016 by_______________________, Senior Vice President of_________________, a _______________bank, on behalf of the bank, and who is personally known to me.
|My Commission Expires: | |
| |Notary Public |
| | |
| | |
| |Print/Type Name of Notary |
| | |
| |Commission No. |
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