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EXHIBIT 10.13
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT (the "Loan Agreement") is made
and executed this __________ day of December, 1995 by and between THE
XXXXX COMPANIES, INC., A FLORIDA CORPORATION, located at 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, thereinafter referred to
as "Borrower") and XXXXXXX BANK OF SOUTH FLORIDA, N.A., a national
banking association, located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000, attention: Commercial Real Estate Lending
Department (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower has negotiated with Lender for an
acquisition and development loan in the amount of Two Million Four
Hundred Seventy-Three Thousand and 00/100 Dollars ($2,473,000.00);
and a revolving line of credit construction loan in the amount of
Five Million and 00/100 Dollars ($5,000,000.00) (collectively, the
"Loan") to be secured by a mortgage and security agreement
encumbering land encompassing approximately 21 acres to be developed
by Borrower and used by Borrower to construct 58 single-family
residences and related improvements (the "Improvements") which
Improvements are more specifically defined in that certain loan
commitment letter by Lender to Borrower dated November 29, 1995 (the
"Commitment");
WHEREAS, the Improvements are located upon certain real property
as described in Exhibit "All (the "Land") located in the Kensington
North subdivision located in Coral Springs, Broward County, Florida
(the Improvements and the Land hereinafter being referred to
collectively as the "Property"); and
WHEREAS, Borrower and Lender wish to enter into this Loan
Agreement in order to set forth the terms and conditions of the
disbursement of the Loan.
NOW, THEREFORE,in consideration of the foregoing, the mutual
covenants, representations, warranties and agreements contained
herein, the sum of TEN AND 00/100 DOLLARS ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower and Lender agree as follows:
ARTICLE I
LOAN DOCUMENTS
Subject to the conditions contained in the Commitment and prior
to any disbursement, Borrower shall execute and deliver, or cause to
be executed and delivered to Lender the following documents
(hereinafter collectively and together with this Loan Agreement
referred to as the "Loan Documents"), all in a form satisfactory to
Lender:
1. Notes. A promissory note of even date herewith payable
to the order of Lender in the original principal amount of Two
Million Four Hundred Seventy-Three Thousand and 00/100 Dollars
($2,473,000.00) ("Note I") and a revolving line of credit
promissory note in the original principal amount of Five Million
and 00/100 Dollars ($5,000,000.00) ("Note II") (Note I and Note II
are hereinafter collectively referred to as the "Note"), which shall
include such terms and conditions as have heretofore been mutually
agreed upon between Borrower and Lender. An interest reserve as set
forth in the Loan Budget attached hereto as Exhibit B shall be
established from a portion of the Loan proceeds from Note I and from
Note II. Borrower hereby authorizes Lender to deduct from the
interest reserve the accrued interest on the outstanding balance of
the Loan on the first day of each month of the term of the Loan in
accordance with the provisions of the Note I and from Note II.
Borrower and Lender agree that the accrued interest shall be
disbursed from the interest reserve so long as no Event of Default
has occurred and sufficient amounts remain in the
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interest reserve so long as the construction is proceeding as
scheduled in the construction schedule approved by Lender; provided,
however, that Lender shall at all times be authorized even if not
otherwise obligated to disburse accrued interest from the interest
reserve. Interest shall be payable by Borrower in local funds to the
extent that same is not disbursed from the interest reserve. Upon the
expiration of the interest reserve, which will be calculated on a per
Unit, as hereinafter defined, basis with respect to Note II,
Borrower shall be required to pay the interest out of pocket. In
addition, with respect to the model units and the Speculative Units,
as hereinafter defined, Borrower shall be required to pay the
interest out of pocket with respect to each such Unit commencing
seven (7) months after the initial advance with respect to each such
Unit.
2. Mortgage and Security Agreement. A mortgage and
security agreement encumbering the Property which, upon recordation,
shall constitute a first lien on the Property (the "Mortgage") and
which Mortgage shall be in a form satisfactory to Lender and shall be
subject only to those exceptions and matters satisfactory to Lender.
3. Assignment of Rents and Leases. An assignment of
rents and leases from Borrower to Lender assigning any and all leases
and rents now in existence or which may come into existence during
the life of this Loan from Borrower to Lender.
4. UCC-1 Financing Statements (Local and State).
UCC-1 Financing Statements (local and state) covering all personal
property fixtures and equipment placed or to be placed on or under
the Property, and such other documents as will insure Lender a first
perfected security interest in and to said personal property, fixtures
and equipment.
5. Mortgage Title Insurance Commitment and Policy. A
mortgagee title insurance commitment and policy in the face amount of
Seven Million Four Hundred Seventy-Three Thousand and 00/100 Dollars
($7,473,000.00), insuring the Mortgage as a valid first lien on the
Property subject only to exceptions as shall be approved in writing by
Lender, issued by a title company satisfactory to Lender ("Title
Insurer"), and in a form satisfactory to and approved by Lender and
satisfying the requirements set forth in the Commitment, including
such reinsurance and/or coinsurance agreements, if any, and any
affirmative coverage required by Lender. Borrower, at Borrower's
expense, shall deliver to Lender copies of any documents which may
affect the Property in any manner (as determined by Lender's counsel)
at any time prior to or during the term of the Loan.
6. Opinion of Counsel. An opinion of counsel licensed
in the State of Florida and satisfactory to Lender which covers such
matters as may be required by Lender.
7. Mortgagor's Affidavit. Mortgagor's Affidavit, in
form and content sufficient to permit the Title Insurer to delete any
exception for parties in possession, matters of survey, mechanic's or
materialmen's liens, the gap, and taxes and assessments which are due
and payable.
8. Borrowing Authority Instruments. Documents
evidencing the necessary authorization for all actions taken by
Borrower in connection with this Loan as may be required by Lender.
Appropriate documents may include corporate resolutions and
certificates of incumbency, certificates of active status,
certificates of authority, articles of incorporation and bylaws.
9. General Construction Contract. A general
construction contract (the "Construction Contract") in form and
content acceptable to Lender, between Borrower and Adro Construction,
Inc., a licensed Florida contractor (the "Contractor"), to construct
the
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Improvements in accordance with plans and specifications (the "Plans
and Specifications") to be prepared by ____________________ (the
"Architect"). Borrower shall also deliver to Lender a copy of the
Architect's Contract by and between the Borrower and the Architect,
and the Engineer's Contract by and between the Borrower and _________
(the "Engineer"), which shall be in form and content acceptable to
Lender and which shall provide that the Architect and Engineer shall
submit to Lender any certificates, as-built plans or specifications
or other information which shall be a prerequisite to disbursements
of Loan proceeds, including the final disbursement, as provided
herein.
10. Major Subcontracts. Contracts in form and content
acceptable to Lender, which have been executed by and between
Contractor and all major subcontractors, materialmen and suppliers
("Subcontractors") to construct the Improvements in accordance with
the Plans and Specifications. For the purposes hereof, a major
subcontract for site development shall be any contract which is a
contract for Twenty Thousand and 00/100 Dollars ($20,000.00) or more
and a Major Subcontract for the construction of a Unit shall be any
contract for Twenty Thousand and 00/100 Dollars ($20,000.00) or more
per Unit. If Major Subcontracts have not been executed, Borrower
shall furnish to Lender firm bids or internal estimates of the work
to be covered by the Major Subcontract, and such supporting
documentation therefor as Lender may require. Borrower shall submit
to Lender a list of all other Subcontractors working on the
Improvements and shall keep the list current until the Improvements
are completed. All subcontracts for work, labor and materials entered
into by Contractor or directly by Borrower, either with Major
Subcontractors, other subcontractors or with Borrower's own employees
or agents, shall cover completion of the Improvements shown on the
Plans and Specifications. The aggregate contract price for
constructing and equipping the Improvements in accordance with the
Plans and Specifications and representations made to Lender and all
other costs of the project being financed with the Loan proceeds and
pursuant to the terms and conditions hereof (the "Project") shall
not, exceed the amount allocated and described in the budget for the
Loan (the "Loan Budget") approved in writing by Lender and attached
hereto and made a part hereof as Exhibit "1B." Borrower shall
furnish such additional supporting documentation for the cost of the
items described in the Loan Budget as may be required by Lender.
11. Survey. Three (3) original copies of a recent
(not more than three [3] months old) survey, satisfactory to Lender
and prepared by a registered land surveyor in accordance with
Lender's requirements, of all properties encumbered by the Mortgage,
showing the location and dimensions of all Improvements thereon and
indicating the routes of ingress and egress for public access to the
Property, all utility lines, walks, drives, recorded or visible
easements and rights-of-way on the Property, and showing that there
are no encroachments, improvements, projections or easements
(recorded or unrecorded) on the property lines. Foundation perimeters
are to be added to the survey by the surveyor as soon as they are in
place for all buildings. The survey shall certify the acreage of the
Land and shall indicate whether the Land is located within any flood
hazard area. The survey must be prepared in accordance with the
Minimum Technical Standards set forth by the Florida Board of Land
Surveyors pursuant to the provisions of Section 472.027 of the
Florida Statutes and must be certified in favor of Lender and Title
Insurer. The surveyor's certificate placed on the survey shall include
a statement that said survey locates any and all items set forth as
exceptions in the mortgagee title insurance policy (the "Title
Policy") as Lender may require, shall satisfy all of the survey
requirements in the Commitment, and shall include any other
requirements of Lender. A final survey shall be furnished after all
Improvements are completed on the Property.
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12. Notice of Commencement. A Notice of Commencement
signed by Borrower at closing or prior to the commencement of
construction of each Unit but not more than thirty (30) days prior to
such commencement, shall be placed of record by Lender prior to any
funding pursuant to the Loan for each Unit and subsequent to the
Mortgage in Broward County, Florida, with a certified copy thereof
being posted at the job site in accordance with the Florida
Construction Lien Law, Chapter 713, Florida Statutes (the "Florida
Construction Lien Law") and a copy thereof furnished to Lender. Proof
acceptable to Lender, in its sole discretion, that the Notice of
Commencement has been properly posted at the job site in accordance
with the requirements of the Florida Construction Lien Law, shall be
delivered to Lender and to the Title Insurer. The Notice of
Commencement shall name the Lender and Title Insurer as additional
parties to whom all notices shall be given. The Notice of
Commencement shall state that it is in effect throughout the duration
of the construction period as set forth in the Construction Contract.
13. Borrower's Architect's/Engineer's Opinions and
Agreements. Written opinions from Borrower's Architect/Engineer
("Engineer" or "Architect") covering such matters as may be required
by Lender and stating that the proposed Improvements, when completed
in accordance with the Plans and Specifications, will comply with all
governmental restrictions, ordinances and regulations. Further,
Borrower will provide Lender with an agreement by Borrower's
Architect in form and content acceptable to Lender, regarding
Lender's right to use the Plans and Specifications at no cost to
Lender upon an Event of Default, as defined in the Mortgage and this
Loan Agreement.
14. Lender's Construction Inspector's Plan and Cost Review.
Written plan and cost review from Lender's construction inspector
("Inspector") covering such matters as may be required by Lender and
stating that the proposed Improvements can feasibly be constructed
within the Loan Budget and that the proposed Improvements, when
completed in accordance with the Plans and Specifications, will
comply with all governmental restrictions, ordinances and regulations.
15. Assignment of Contract Rights. An assignment to Lender
of all of Borrower's contract rights under the Construction Contract,
the Major Subcontracts, the Architect's Contract, the Engineer's
Contract and all other contracts.
16. Commitment Fee. The non-refundable commitment fee
of Twenty-Four Thousand Seven Hundred Thirty 00/100 Dollars
($24,730.00) for Note I (which shall be reduced to Twelve Thousand
Three Hundred Sixty Five and 00/100 Dollars ($12,365.00) in the event
Borrower elects to utilize Lender's cash management services during
the entire term of the Loan) and Fifty Thousand and no/100 Dollars
($50,000.00) for Note II (which shall be reduced to Twenty Five
Thousand and 00/100 Dollars ($25,000.00) in the event Borrower elects
to utilize Lender's cash management services during the entire term
of the Loan), plus out-of-pocket expenses. The amount of
Twenty-Thousand and 00/100 Dollars ($20,000,00) of the commitment
fee was paid simultaneously with Borrower's acceptance of the
Commitment, and the balance of the commitment fee has been paid by
Borrower simultaneously with the execution of this Loan Agreement. It
is understood and agreed that no part of such fee will be returned to
the Borrower in any event, including, but not limited to as a credit
against closing costs or expenses. In the event Borrower pays the
reduced commitment fee as a result of Borrower's election to utilize
Lender's cash management services and Borrower ceases to utilize
these services at any time during the term of the Loan, Borrower
shall pay to Lender the pro rata portion of the commitment fee,
calculated at the full amount, for the time period that Borrower does
not utilize Lender's cash management services. In addition to the
commitment fee, Borrower shall pay to Lender a construction draw fee
in the amount of one
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quarter one percent (.25%) of the amount of each advance under Note
II at the time of each advance under Note II.
17. Guaranties. The unqualified and unconditional guaranty
of payment of the Note by NHC Holding Corp., a Nevada corporation
(the "Guarantor"). Further, a guaranty of completion shall be given
by the Guarantor.
18. Taxes. Proof of payment of real property and personal
property taxes for 1995 and all prior years, and information as to
tax identification numbers, tax rates, estimated tax values and the
identities of the taxing authorities and evidence of payment of any
outstanding liens or other outstanding obligations or encumbrances
against the Property or Improvements.
19. Utilities. Commitment letters addressed to Lender
evidencing the availability and sufficiency of water, sewer,
electric, telephone and natural gas utility services to
satisfactorily service the proposed Improvements on the Property and
that such facilities are available and will be furnished.
20. Permits. Building permit(s) and satisfactory evidence
that the Land and the Improvements and the intended uses of the
Property are in compliance with all applicable laws, regulations and
ordinances. Such evidence may include letters, licenses, permits,
certificates and other correspondence from the appropriate
governmental authorities, opinions of Borrower's attorney or other
attorneys and opinions or certifications from Borrower's Architect,
as Lender may determine. Those laws, regulations and ordinances with
which compliance should be evidenced include, by way of illustration
but not limitation, the following: (a), environmental protection
laws; (b) erosion control ordinances; (c) doing business and/or
licensing laws; (d) laws protecting disabled or handicapped persons;
and (e) zoning laws (in this regard, the evidence submitted should
include (i) the zoning designation made for the Land; (ii) the
permitted uses of the Land under such zoning designation, (iii) zoning
requirements as to parking, lot size, ingress and egress and building
setbacks, (iv) the absence of moratoriums that would prohibit
construction of the Improvements, (v) site plan approval, and (vi)
the length of time of the validity of all such approvals, variances
and permits).
21. Cost Breakdown. A detailed construction and
nonconstruction cost breakdown on Lender approved forms of all
construction and non-construction costs including specification of
which items are to be funded from sources other than the Loan. Lender
reserves the right to require, at Borrower's expense, a construction
cost take-off by Lender's Inspector or by an expert in the
construction cost field to be designated by Lender. If, in the
judgment of such Inspector or such cost expert, the total estimated
costs of constructing the Improvements on the Property to the
Borrower exceed the principal amount of the Loan, Lender may require
Borrower to invest immediately the amount of the difference in
accordance with the equity requirements of this Loan Agreement and
the Commitment. Borrower's request for the initial disbursement must
be submitted and approved by Lender prior to any advance with respect
to the Loan.
22. Soil Tests. A report as to soil borings and compaction
reports and analysis made at the Land by a soil testing firm
satisfactory to Lender and Lender's Inspector. The number and
location of such borings shall be in accordance with the
recommendations of the soil testing firm and must also be
satisfactory to Lender. The report shall include the recommendations
of the soil testing firm as to the preparation of the soil needed in
order to adequately support the Improvements. (During the course of
construction, Borrower shall also provide such reports as to concrete
tests and additional soil tests as are requested or required by
Lender.)
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23. Financial Statements. Current financial statements,
tax returns, and such other credit information as Lender may require
for Borrower, the Guarantor and General Contractor, in form and
content satisfactory to Lender, and including evidence of the
availability of Borrower's funds necessary, in Lender's sole opinion,
to pay the total costs (hard construction and indirect costs) of the
Project in excess of the amount of the Loan. The Commitment contains
further requirements with respect to the foregoing financial
statements and credit information.
24. Certification of Cash Investment. Certification,
executed by Borrower, stating that Borrower has invested at least Six
Hundred Twenty-Two Thousand Nine Hundred Five and 00/100 Dollars
($622,905.00) in cash in the Property, including an enumeration
of the items for which this amount was paid.
25. Plans and Specifications.
(a) Two (2) sets of the approved site plan and the
complete and detailed Plans and Specifications for the development of
the site improvements which Borrower shall have approved in writing
and which shall be satisfactory to Lender in Lender's sole
discretion, including any changes or modifications thereto to the
date of receipt by Lender, and any and all construction contracts or
other documents in the possession or control of Borrower or any
general contractor relating to the construction of the Improvements.
The two (2) sets must include plans and specifications for all site
development (including storm drainage, utility lines, erosion control
and landscaping) work, and must be stamped with all required
approvals from all applicable governmental authorities; certified
under seal by Architect and signed by Borrower and Contractor to be
true copies of the Plans and Specifications architecturally and
structurally approved by all authorities and agencies having
jurisdiction thereon. The set must also incorporate the
recommendations made in the soil testing report. No material changes
shall be made thereafter in the Plans and Specifications without the
prior written consent of the Lender, except as set forth herein.
(b) Not less than fifteen (15) days prior to the
first disbursement of Note II two (2) sets of the approved site plan
and the complete and detailed Plans and Specifications which Borrower
shall have approved in writing and which shall be satisfactory to
Lender, including any changes or modifications thereto to the date of
receipt by Lender, and any and all construction contracts over
$20,000 or other documents in the possession or control of Borrower
or any general contractor relating to the construction of the Unit
over $20,000. The set must include plans and specifications for
architectural, structural, mechanical, plumbing and electrical work,
and must be stamped with all required approvals from all applicable
governmental authorities; certified under seal by Architect and
signed by Borrower and Contractor to be true copies of the Plans and
Specifications architecturally and structurally approved by all
authorities and agencies having jurisdiction thereon and for which a
building permit has been issued. The set must also incorporate the
recommendations made in the soil testing report. No changes shall be
made thereafter in the Plans and Specifications without the prior
written consent of the Lender, except as set forth herein.
26. Certificate of Architect. Certificate of Architect
preparing the Plans and Specifications addressed to Lender and
stating that the Plans and Specifications have been approved by all
governmental authorities, meet all State construction, energy
conservation, and environmental codes and meet all applicable Federal
laws and regulations adopted pursuant to the Fair Housing Act of 1968
(as amended) and the Americans with Disabilities Act of 1990; that
provisions have been made for the handicapped in
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27. Certificate of Engineer. Certificate of Engineer
preparing the Plans and Specifications addressed to Lender and
stating that any necessary soil testing has been performed and soil
conditions are satisfactory for the structural support of the
Improvements; that there is adequate ingress and egress; that the
Plans and Specifications have been approved by all governmental
authority to meet all State construction, energy conservation, and
environmental codes; that the zoning is proper; that the permit has
been properly issued; that all utilities necessary to service the
improvements on the Property are available with adequate capacity;
that all required governmental permits and approvals have been
obtained; and such additional items as may be required by Lender.
The Certificate of Engineer shall include submission of reports and
certifications regarding fill, foundation, design, settlement, and
such other reports and certifications as reasonably required by
Lender.
28. Lien Waivers. Waivers of lien from each and every
contractor, subcontractor, laborer or material supplier performing
services or supplying material to the Property within the past
ninety (90) days and an affidavit listing all of said entities and
certifying that no work has been performed and no materials have been
supplied for which the costs remain unpaid prior to closing.
29. Form of Contract. Copy of form of contract for the sale
of the resold residences, which shall be acceptable to Lender and its
counsel and shall be subordinate to the first lien of the Mortgage.
Such contract must provide for an escrow agent acceptable to Lender.
30. Insurance. Evidence of insurance in form and content
satisfactory to Lender, as set forth herein.
31. Collateral Assignment of Sales Contracts and Deposits.
A collateral assignment from Borrower to Lender of all of Borrower's
rights and interest in and to any and all sales contracts and
deposits held thereunder, and providing that all purchasers, deposits
shall be held in an escrow account at Lender with an escrow agent
acceptable to Lender. The Borrower's rights to all monies in said
escrow account shall also be assigned to Lender.
32. Collateral Assignment of Licenses and Permits. A
Collateral Assignment of all licenses, permits, approvals and
certifications relating to the use and construction of the
Improvements on the Property, including but not limited to trade and
fictitious names, all of which must be transferable during the entire
term of the Loan, in form and content acceptable to Lender.
33. Appraisal. Appraisal in accordance with the
requirements as set forth in the Commitment.
34. Construction Loan Disbursement Agreement. The
Construction Loan Disbursement Agreement shall be executed by
Borrower, Contractor, Lender and the Borrower's counsel, as
Disbursing Agent.
35. Environmental Audit. An environmental audit or
assessment report of the Property and the Improvements thereon, at
Borrower's expense performed to Lender's satisfaction by an
acceptable and qualified environmental contamination on the Property
has occurred or is imminent and containing adequately supported and
documented conclusions (which conclusions must be satisfactory to
Lender, in its sole discretion) which evaluate (i) whether any
hazardous or toxic substances, hazardous wastes, pollutants,
contaminants or an other environmental hazards are
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present in the soil, surface water or groundwater at or adjacent to
the Property; (ii) whether operations at the Property are in
compliance with all federal, state and local air quality and water
quality regulations and other applicable environmental laws and (iii)
whether there are any other potential or actual environmental
concerns from current or prior ownership and uses of the Property.
The contract between the Borrower and consultant for the conducting
an environmental audit or assessment shall contain a provision which
expressly states that the Lender is an intended beneficiary of the
contract and is entitled to rely on any report of findings or
conclusions or the results of the environmental audit or, in the
alternative, the consultant shall provide a reliance letter
confirming that Lender shall be entitled to rely on any report of
finds or conclusions or the results of the environmental audit. In
order to evaluate the environmental risks associated with this
transaction, the Borrower will, upon request, give permission to the
Lender and its agents and contractors to enter the Property for the
purpose of conducting its own environmental assessment or
hydrogeologic study of the Property including soil borings,
installation of piezometers, the collection of soil and surface water
samples, geophysical or geotechnical testing, soil vapor surveys and
the installation and sampling of groundwater monitoring xxxxx. All
such assessments, studies, inspections and investigations deemed
necessary by Lender shall be conducted at Borrower's expense.
36. Miscellaneous. Such other matters, insurance or
documents as Lender shall require.
All of the Loan Documents shall be in form and content
satisfactory to the Lender, and shall comply with all of the
requirements set forth in the Loan Agreement and the Commitment.
ARTICLE II
INITIAL FUNDING
1. The proceeds of this Loan which are approved by the
Lender for the initial funding under the Loan shall be funded
subsequent to the following:
(a) Execution of all such documents as Lender and
Lender's counsel may require to insure that the Lender has a valid
first lien in the amount of the Loan.
(b) Recording of all documents as required by Lender's
counsel.
(c) Receipt by Lender of the marked-up Title Insurance
Commitment insuring Lender's Mortgage, which marked commitment must be
approved by Lender's counsel.
(d) Evidence reasonably satisfactory to Lender and
Lender's counsel of the fulfillment of any other condition to
funding.
(e) Delivery to Lender of the documents required
above as a condition to funding.
2. The proceeds of this Loan which are intended for
subdivision improvements under Note I will not be disbursed by Lender
until all of the conditions set forth on Schedule I attached hereto
and made a part hereof have been satisfied.
3. The proceeds of the Loan which are approved by Lender
for the initial funding of any Unit, as hereinafter defined, shall
be funded subsequent to the following:
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(a) receipt by Lender of building permit for the Unit
for which funding is requested;
(b) execution and recordation of a Notice of
Commencement for the Unit for which funding is requested;
(c) receipt by Lender of an Approved Sales Contract,
as hereinafter defined, for the Unit for which funding is requested
(unless the Unit is a Model Unit or Speculative Unit), as hereinafter
defined;
(d) receipt by Lender of builder's risk insurance
coverage for the Unit for which funding is requested; and
(e) updated list of subcontractors for the Unit for
which funding is requested.
(f) satisfaction of those conditions set forth in
Schedule II attached hereto and made a part hereof.
ARTICLE III
A. METHOD AND CONDITIONS OF DISBURSEMENT OF LOAN PROCEEDS FOR SITE
DEVELOPMENT
1. Funding. Requisitions for disbursements for site
development under Note I shall be in an amount not to exceed the
percentage of work completed and incorporated into the Project, times the
total amount of Note I available for site development, less the amount
previously advanced for site development, as approved by Lender's
Inspector.
2. Request for Advance. Lender agrees that Xxxxxxx,
Xxxxxxxx & Xxxxx, P.A. ("Disbursing Agent") shall make disbursements
pursuant to the Construction Loan Disbursement Agreement of even date
herewith up to the full principal amount of Note I in accordance with the
Loan Budget, and in accordance with and subject to the following
procedure:
(a) Certificate for Payment. At such time as
Borrower shall desire to obtain a disbursement of any portion of
the proceeds of Note I for site development, subject to the
other requirements hereof, Borrower shall complete, execute and
deliver to Lender a request for an advance on a form of draw
request approved by Lender, with copies to the Lender's
Inspector and the Disbursing Agent, setting forth a detailed
breakdown of the requested disbursement, and the original cost
breakdown approved by Lender together with the percentage of
completion of each item and the balance remaining to complete
each item. The Certificate for Payment shall be certified by the
Borrower, the Engineer and the Contractor.
(b) Evidence of Progress of Construction. The
above said Certificate for Payment shall be accompanied by such
evidence, at Borrower's expense, in form and content
satisfactory to Lender, which shall include but not be limited
to Lender's Inspector's report, approval of the Certificate of
Payment by Lender's Inspector, Lender's Inspector's
certification that there are sufficient funds remaining
available under the Loan to complete the Improvements, properly
executed certificate, affidavits, waivers and releases of lien
from Borrower, Engineer, Contractor and/or such other persons as
Lender may require, showing:
(i) The value of the portion of the work
completed at that time;
(ii) That all outstanding claims for labor,
materials and fixtures for which Lender has funded prior
Requests for Advance, have been properly paid;
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(iii) That there are no liens outstanding
against the Property except for Lender's lien and other than
inchoate liens for property taxes not yet due;
(iv) That Borrower has complied with all
of Borrower's obligations, as of the date thereof, under the
Loan Documents;
(v) That all construction prior to the
date of the request for an advance has been completed in a good
and workmanlike manner in accordance with the Plans and
Specifications and as required by all inspecting governmental
authorities having jurisdiction thereof;
(vi) That all funds previously disbursed
by Lender have been applied in accordance with the Loan Budget;
(vii) That copies of all bills or
statements for indirect expenses for which the advance is
requested are attached to said Certificate of Payment; and
(viii) Except as otherwise may be provided,
that all change orders shall have been approved in writing by
Lender.
Where the draw request relates to items other than
payments for work performed or materials furnished under the
Construction Contract, there shall be included a statement of
the purposes for which the advance is desired and invoices for
the same, as Lender shall reasonably require and approve.
(c) Final Disbursement Date. Subject to the
provisions of this Article, Lender shall not be required to
make any disbursement from the proceeds of this Loan later than
the maturity date of Note I.
(d) Lien Priority as Prerequisite for Construction.
As of the date hereof, the Mortgage shall be of first lien
priority as to the Property. Lender shall in no event disburse
funds from the Loan proceeds for the construction of any of the
Improvements unless (a) the Mortgage then shall constitute a
first lien on such Improvement, and (b) there shall exist no
other lien of any sort, whether prior or inferior, than the lien
of the Mortgage with respect to the Property except for the
inchoate liens for property taxes not yet due and any mechanic's
lien which has no later than fifteen (15) days after filing been
either (i) bonded off or (ii) Borrower has filed a Notice of
Contest and placed an amount equal to one hundred ten percent
(110%) of the amount of the lien with TICOR Title Insurance
Company Borrower and Lender acknowledge and agree that in the
event the Borrower's Notice of Contest is unanswered within
sixty (60) days of proper filing, the one hundred ten percent
(110%) amount held in escrow by TICOR Title Insurance Company
("Escrow Monies") shall be returned to Borrower. The parties
further acknowledge and agree that if an answer or other
pleading is filed relating to the Notice of Contest, Borrower
shall be required within ten (10) days thereof to bond off the
lien at which time the Escrow Monies shall be returned to
Borrower. If Borrower does not bond off the lien within ten (10)
days, TICOR title Insurance Company shall be permitted to use
the Escrow Monies to pay off the lien.
(e) Materials Stored On-Site. Lender is willing to
make loan disbursements based on the invoice value of insured
materials properly stored on the construction site. All invoices
for materials stored on-site and the reasonableness of the
quantity of such materials are subject to Lender's review and
approval. Lender must have a first lien on the
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materials stored on-site, and a disbursement therefor must not be
in conflict with the terms of the Construction Contract. A list
must be submitted to Lender of the materials to be stored on-site
for which loan disbursements will be requested. Such list must
include a breakdown by type, number of units and cost per unit.
(f) Materials Stored Off-Site. Lender will not make
any loan disbursements based on the value of materials stored
off-site, unless Lender has given its approval to a disbursement
based thereon because of the difficulty or danger of storing
such materials on-site, but Lender shall have absolute
discretion in determining whether to approve such disbursement
and upon what terms and conditions such disbursement will be
made. In the event Lender elects to make a loan disbursement for
materials stored off-site, the conditions of Paragraph (e) above
shall apply to such disbursement.
(g) Continuation of Title Insurance Coverage. The
Certificate for Payment shall be accompanied by a date down
endorsement to the Title Policy, which endorsement shall (a)
indicate that since the effective date of the Title Policy (or
the effective date of the last such endorsement, if any), there
has been no change in the status of title to the Property as set
out in the Title Policy, and (b) have the effect of increasing
the coverage of the Title Policy by an amount equal to the
advance then being made, unless the Title Policy expressly
provides automatically and unconditionally for such increase in
coverage upon each such disbursement.
3. Conditions Precedent to Each Disbursement. At no time
and in no event shall Lender be obligated to disburse funds:
(a) if any Event of Default as described herein or in
the Mortgage shall have occurred and shall not have been cured,
except that Lender may, at Lender's option, pay itself accrued
interest to the extent that Loan proceeds allocated to an
interest reserve in the Loan Budget remain undisbursed; or
(b) if Lender determines that construction of the
Improvements cannot be completed within the time required by
this Loan Agreement; or
(c) if, prior to the Loan closing and at all times
during the term of the Loan, Lender is not satisfied, in its
sole discretion, that the proceeds of the Loan remaining
undisbursed will be sufficient to complete all of the site
development according to the Plans and Specifications and to pay
for all labor, materials and costs and all other costs and
disbursements required to complete the site development,
including interest and other non-construction costs. If
required by Lender, Borrower shall pay with its own funds and
furnish written documentation which satisfactorily accounts to
Lender for all acquisition, development, or other construction
costs in excess of the proceeds of this Loan necessary to fully
complete the construction of the Improvements. Each such payment
shall be expended before any or any other Loan disbursement
will be made, and it shall be advanced as construction
progresses; or
(d) if the Property shall have been damaged by fire
or other casualty.
4. Conditions Precedent to Final Disbursement. All Loan
disbursements shall be subject to the following condition:
The final Loan disbursement with respect to Note I
shall be withheld by Lender, and shall be disbursed only upon
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compliance with the following requirements (in addition to the
requirements for all other disbursements as set forth above):
(a) Evidence of Completion. Receipt by Lender of
satisfactory evidence of the completion of the site development
substantially in accordance with the Plans and Specifications
and approval of such completion by local governmental
authorities.
(b) Final Releases of Lien; Contractor's Affidavit.
Receipt by Lender of all final releases of lien by Contractor
and any Subcontractors and of the requisite affidavit of
Contractor sufficient in the opinion of Lender's counsel to
comply with the Florida Construction Lien Law, and the removal
of any mechanics' and materialmen's liens (inchoate or
otherwise) affecting title to the Property.
(c) Borrower's Supervising Engineer's Certification.
Certification from the supervising engineer that all on-site and
off-site Improvements required to be constructed have been
completed substantially in accordance with the approved Plans
and Specifications and are free of deficiency.
(d) Contractor's Certification. Certification from
Contractor that all on-site and off-site Improvements required
to be constructed have been completed strictly in accordance
with the approved Plans and Specifications and are free of
structural deficiency.
(e) Borrower's Affidavit. Certification by Borrower
that all on-site and off-site Improvements required to be
constructed have been completed substantially in accordance
with the approved Plans and Specifications and are free of
deficiency.
5. Notice, Frequency and Place of Disbursements. At
Lender's option (a) the above said draw request shall be submitted to
Lender at least five (5) business days prior to the date of the
requested advance, (b) disbursements shall be made no more frequently
than monthly, (c) all disbursements shall be made by transfer to
Borrower's account at Lender or at such other place as Lender may
designate from time to time.
6. Deposit of Funds Advanced. The above notwithstanding,
following any Event of Default, as defined herein and in the Mortgage
at Lender's option, Borrower shall deposit all loan proceeds advanced
by Lender in a separate and exclusive account to be withdrawn and
used solely for the payment of bills for labor, materials and
fixtures used or to be used in construction of the Improvements and
other costs contemplated by the approved budget, and Borrower will
promptly furnish Lender with evidence thereof.
7. Advances Do Not Constitute a Waiver. No advance of
Loan proceeds hereunder shall constitute a waiver of any of the
conditions of Lender's obligation to make further advances, nor in the
event Borrower is unable to satisfy any such condition, shall any such
waiver have the effect of precluding Lender from thereafter declaring
such inability to be an event of default described herein or in the
Mortgage.
B. METHOD AND CONDITIONS OF DISBURSEMENT OF LOAN PROCEEDS FOR UNIT
DEVELOPMENT
1. Funding. Requisitions for disbursements shall be
in an amount not to exceed the percentage of work completed and
incorporated for each Unit, times the total amount of the loan
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available under Note II for the Unit being funded, less the amount
previously advanced for that Unit.
2. Number of Units. Lender shall only fund the
construction at any one time of a maximum of thirty-two (32) Units on
the Property which Units shall include: (i) a maximum of three (3)
model homes, not subject to a Approved Sales Contract which is to be
constructed, furnished and equipped primarily as a means of promoting
the sale of other Units of the Project ("Model Units"); (ii) four (4)
speculative homes not subject to an Approved Sales Contract, which
has been, is being, or is to be constructed for sale in the Project
("Speculative Unit(s)"); and (iii) Units which have been sold
pursuant to a legally enforceable sales agreement form approved by
Lender to a bona fide third party purchaser at a sales price of not
less than the applicable Release Price for the Unit in question, with
a purchaser's deposit of not less than five percent (5%) of the total
purchase price paid in cash or immediately available funds and
deposited into an escrow account maintained at Lender (unless the
purchaser has expressly authorized the use of the deposit, or any
portion thereof, for the payment of construction costs, in which
event such deposit, or portion thereof, may be used by the Borrower
to pay construction costs in full compliance with applicable law) and
otherwise complying with all applicable laws and regulations so that
the purchaser shall have no election or right to terminate such
contract without the loss of its deposit except as a result of a
financing contingency (the "Approved Sales Contract"). For the
purposes of determining what constitutes a bona fide third party
purchaser, no purchaser shall be permitted to purchase more than
three (3) Units without the prior written consent of Lender. No sales
agreement shall be considered bona fide if the purchaser thereunder
is a principal of Borrower or the Guarantor, or of any person, firm
or corporation (including members of their families or their
stockholders, officers of directors) who has rendered services or
provided materials to the Project or is a member of the
immediate, family of any such person. The sales agreement shall
provide that it may not be assigned by the purchaser thereunder
without the prior written consent of Lender. ("Sold Units"), (Model
Unit(s), Speculative Unit(s) and Sold Units are collectively
referred to as "Unit(s)").
3. Limits on Advancements of Funds. The funds advanced to
Borrower under Note II for each Unit shall not exceed one hundred
percent (100%) of the total construction hard costs of each Unit. In
absolutely no event will the total amount available for any Unit
under Note II exceed the smallest of the following amounts: (i)
eighty percent (80%) of the gross sales price of any Unit (exclusive
of any lot premiums) after deducting the amount of Note I allocated
to the Unit, (ii) eighty percent (80%) of the appraised value for any
completed Unit as approved by Lender after deducting the amount of
the Note I allocated to the Unit, or (iii) the aggregate amount
actually paid by or on behalf of Borrower in connection with the
construction of the Unit.
If Lender at any time determines that the remaining amount
available under Note II for any Unit is not sufficient to pay in
full all costs to complete the Unit, Borrower shall, within ten days
of Borrower's receipt of written demand therefor from Lender, deposit
with Lender the amount set forth in Lender's notice, in cash, to be
held and disbursed for the payment of costs relating to the Unit. So
long as any such funds remain in such account, all costs of
construction of the applicable Unit will be paid from such funds
until they become depleted. Borrower's failure to timely deposit the
aforesaid funds with Lender shall constitute an Event of Default
under this Loan Agreement.
4. Assignment of Deposits. Deposits paid by individual
purchasers of Units pursuant to Approved Sales Contracts shall be
assigned to Lender as additional collateral for the Loan as more
particularly described in that certain Collateral Assignment of Sales
Contracts and Deposits of even date herewith.
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5. Request for Advance. Lender agrees that the Disbursing
Agent shall make disbursements pursuant to the Construction Loan
Disbursement Agreement up to the full principal amount of Note II in
accordance with the Loan Budget, and in accordance with and subject
to the following procedure:
(a) Certificate for Payment. At such time as Borrower
shall desire to obtain a disbursement of any portion of the
Loan proceeds for the construction of a Unit, subject to the
other requirements hereof, Borrower shall complete, execute
and deliver to Lender a request for an advance on a form of
draw request approved by Lender, with copies to the Lender's
Inspector and the Disbursing Agent, setting forth a detailed
breakdown of the requested disbursement for each Unit and the
original cost breakdown approved by Lender together with the
percentage of completion of each item and the balance
remaining to complete each item. The Certificate for Payment
shall be certified by the Borrower, and the Contractor.
(b) Evidence of Progress of Construction. The above
said Certificate for Payment shall be accompanied by such
evidence, at Borrower's expense, in form and content
satisfactory to Lender, which shall include but not be limited
to Lender's Inspector's report, approval of the Certificate of
Payment by Lender's Inspector, Lender's Inspector's
certification that there are sufficient funds available under
the Loan to complete the Improvements (excluding purchaser
options under Approved Sales Contracts paid for by Borrower
during construction), properly executed certificates,
affidavits, waivers and releases of lien from Borrower, the
Contractor and/or such other persons as Lender may require,
showing:
(i) The value of the portion of the Unit
completed at that time;
(ii) That all outstanding claims for labor,
materials and fixtures for which Lender has funded prior
Requests for Advance, have been properly paid;
(iii) That there are no liens outstanding
against the Property except for Lender's lien and other than
inchoate liens for property taxes not yet due;
(iv) That Borrower has complied with all of
Borrower's obligations, as of the date thereof, under the Loan
Documents;
(v) That all construction prior to the date of
the request for an advance has been completed in a good and
workmanlike manner in accordance with the Plans and
Specifications and as required by all inspecting governmental
authorities having jurisdiction thereof;
(vi) That all funds previously disbursed by
Lender have been applied in accordance with the Loan Budget;
(vii) That copies of all bills or statements for
indirect expenses for which the advance is requested are
attached to said Certificate of Payment if requested Lender; and
(viii) Except as otherwise may be provided, that
all change orders shall have been approved in writing by Lender.
Where the draw request relates to items other than
payments for work performed or materials furnished under the
Construction Contract, there shall be included a statement of
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the purposes for which the advance is desired and invoices for
the same, as Lender shall reasonably require and approve.
(c) Foundation Survey. Immediately upon the completion
of the construction of the foundations of each Unit, a
foundation survey shall be submitted to Lender which shall show
and which shall certify to Lender and Title Insurer, the
locations of such foundations. The surveyor shall also submit a
certification as to the absence of encroachments from or onto
the Land and compliance of the Units, as then constructed,
setback requirements and other relevant restrictions. Lender
reserves the right to require an endorsement to the title
insurance policy insuring that the building location is not in
violation of any easements of record and a Certificate of
Architect certifying that the building location is not in
violation of any setback restrictions.
(d) As-Built Surveys. At Lender's request during
construction, Borrower shall submit as-built surveys for the
Units on the Property to Lender and shall reference the as-built
survey in the title insurance policy. In addition, during
construction, Lender may request certification from Borrower
that all on-site and off-site Improvements required to be
constructed have been completed strictly in accordance with the
approved Plans and Specifications. The surveys shall show and
include the requirements expressed in the Commitment and such
other requirements as Lender may require.
(e) Access to Streets. Lender shall not make any
disbursement for construction of any of the Units on the
Property if any such Unit shall not have satisfactory access to
dedicated and completed streets unencumbered by liens.
(f) Final. Disbursement Date. Subject to the
provisions of this Article, Lender shall not be required to make
any disbursement from the proceeds of this Loan later than the
maturity date of the Note.
(g) Lien Priority as Prerequisite for Construction. As
of the date hereof, the Mortgage shall be of first lien priority
as to the Property. Lender shall in no event disburse funds from
the Loan proceeds for the construction of any of the
improvements unless (a) the Mortgage then shall constitute a
first lien on such Improvement, and (b) there shall exist no
other lien of any sort, whether prior or inferior, than the lien
of the Mortgage with respect to the Property except for the
inchoate liens for property taxes not yet due and any mechanics
lien which has no later than fifteen (15) days after filing been
either (i) bonded off or (ii) Borrower has filed a Notice of
Contest and placed an amount equal to one hundred ten percent
(110%) of the amount of the lien with TICOR Title Insurance
Company Borrower and Lender acknowledge and agree that in the
event the Borrower's Notice of Contest is unanswered within
sixty (60) days of proper filing, the one hundred ten percent
(110%) amount held in escrow by TICOR Title Insurance Company
("Escrow Monies") shall be returned to Borrower. The parties
further acknowledge and agree that if an answer or other
pleading is filed relating to the Notice of Contest, Borrower
shall he required within ten (10) days thereof to bond off the
lien at which time the Escrow Monies shall be returned to
Borrower. If Borrower does not bond off the lien within ten (10)
days, TICOR title Insurance Company shall be permitted to use
the Escrow Monies to pay off the lien.
(h) Materials Stored On-Site. Lender is willing to
make loan disbursements based on the invoice value of insured
materials properly stored on the construction site. All invoices
for materials stored on-site and the reasonableness
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of the quantity of such materials are subject to Lender's review and approval.
Lender must have a first lien on the materials stored on-site, and a
disbursement therefor must not be in conflict with the terms of the Construction
Contract. A list must be submitted to Lender of the materials to be stored
on-site for which loan disbursements will be requested. Such list must include a
breakdown by type, number of units and cost per unit.
(i) Materials Stored Off-Site. Lender will not make any loan
disbursements based on the value of materials stored off-site, unless Lender
has given its approval to a disbursement based thereon because of the
difficulty or danger of storing such materials on-site, but Lender shall have
absolute discretion in determining whether to approve such disbursement and
upon what terms and conditions such disbursement will be made. In the event
Lender elects to make a loan disbursement for materials stored off-site, the
conditions of Paragraph (h) above shall apply to such disbursement.
(j) Continuation of Title Insurance Coverage. The Certificate for
Payment shall be accompanied by a date down endorsement to the Title Policy,
which endorsement shall (a) indicate that since the effective date of the
Title Policy (or the effective date of the last such endorsement, if any),
there has been no change in the status of title to the Property as set out in
the Title Policy, and (b) have the effect of increasing the coverage of the
Title Policy by an amount equal to the advance then being made, unless the
Title Policy expressly provides automatically and unconditionally for such
increase in coverage upon each such disbursement. Lender reserves the right to
require an endorsement to the title insurance policy, insuring that the
building location is not in violation of any easements of record and a
Certificate of Architect certifying that the building location is not in
violation of any setback restrictions.
6. Conditions Precedent to Each Disbursement. At no time and in no event
shall Lender be obligated to disburse funds:
(a) if any Event of Default as described herein or in the Mortgage
shall have occurred and shall not have been cured, except that Lender may, at
Lender's option, pay itself accrued interest to the extent that Loan proceeds
allocated to an interest reserve in the Loan Budget remain undisbursed; or
(b) if Lender determines that construction of the Improvements cannot
be completed within the time required by this Loan Agreement; or
(c) if, prior to the Loan closing and at all times during the term of
the Loan, Lender is not satisfied, in its sole discretion, that the proceeds of
the Loan remaining undisbursed under Note II will be sufficient to complete all
of the Improvements according to the Plans and Specifications and to pay for all
labor, materials and costs and all other costs and disbursements required to
complete the Improvements, including interest and other non-construction costs.
If required by Lender, Borrower shall pay with its own funds and furnish written
documentation which satisfactorily accounts to Lender for all acquisition,
development, or other construction costs in excess of the proceeds this Loan
necessary to fully complete the construction or the improvements. Each such
payment shall be expended before any or any other Loan disbursement will be
made, and shall be advanced as construction progresses; or
(d) if the Property shall have been damaged by fire or other
casualty.
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7. Conditions Precedent to Final Disbursement. All Loan disbursements
shall he subject to the following condition:
The final Loan disbursement shall be withheld by Lender, and shall be
disbursed only upon compliance with the following requirements (in addition to
the requirements for all other disbursements as set forth above):
(a) Evidence of Completion. Receipt by Lender of satisfactory evidence
of the completion of the Unit substantially in accordance with the Plans and
Specifications and approval of such completion by local governmental
authorities.
(b) Final Releases of Lien; Contractor's Affidavit. Receipt by Lender
of all final releases of lien by Contractor and any Subcontractors and of the
requisite affidavit of Contractor sufficient in the opinion of Lender's counsel
to comply with the Florida Construction Lien Law, and the removal of any
mechanics, and materialmen's liens (inchoate or otherwise) affecting title to
the Property.
(c) Contractor's Certification. Certification from Contractor that all
on-site and off-site Improvements required to be constructed have been completed
strictly in accordance with the approved Plans and Specifications and are free
of structural deficiency.
(d) Borrower's Affidavit. Certification by Borrower that-all on-site
and off-site Improvements required to be constructed have been completed
substantially in accordance with the the approved Plans and Specifications and
are free of deficiency.
(e) Other Evidence. Such other evidence as Lender may require to
establish that each Unit and their intended use comply with all applicable
zoning and other requirements of the public authorities having jurisdiction
including but not limited to compliance with the National Environmental Policy
Act and any other applicable Federal, State, local or municipal environmental
impact or energy laws or regulations.
(f) Insurance. Insurance coverage for each Model Unit and Speculative
Unit shall be broadened to include hazard insurance, in form satisfactory to
Lender.
8. Notice, Frequency and Place of Disbursements. At Lender's option (a)
the above said draw request shall be submitted to Lender at least five (5)
business days prior to the date of the requested advance, (b) disbursements
shall be made no more frequently than monthly, (c) no more than six (6) draws
may be made per Unit, and (d) all disbursements shall be made by transfer to
Borrower's account at Lender or at such other place as Lender may designate from
time to time.
9. Deposit of Funds Advanced. The above notwithstanding, following any
Event of Default, as defined herein and in-the Mortgage, at Lender's option,
Borrower shall deposit all loan proceeds advanced by Lender in a separate and
exclusive account to be withdrawn and used solely for the payment of bills for
labor, materials and fixtures used or to be used in construction of the
Improvements and other costs contemplated by the approved budget, and Borrower
will promptly furnish Lender with evidence thereof.
10. Advances Do Not Constitute a Waiver. No advance of Loan proceeds
hereunder shall constitute a waiver of any of the conditions of Lender's
obligation to make further advances, nor in the event Borrower is unable to
satisfy any such condition, shall any such waiver have the effect of precluding
Lender from
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thereafter declaring such inability to be an event of default described herein
or in the Mortgage.
ARTICLE IV
PARTIAL RELEASES
1. Release of Units. Lender shall release each Unit from the lien of the
Mortgage upon Lender's receipt of the following for the Unit to be released:
(a) Release Price. (i) an amount equal to one hundred twenty percent
(120%) of the amount funded per Lot which is estimated to be $51,166.00 to be
applied against the outstanding principal balance of Note I, and (ii) one
hundred percent (100%) of the monies funded pursuant to Note II for construction
of the particular Unit for which a partial release is requested to be applied
against the outstanding principal balance of Note II ((i) and (ii) are
collectively known as the "Release Price").
(b) As-Build Survey. Receipt by Lender of three (3) copies of a
satisfactory "as-build" survey prepared by a registered surveyor, in accordance
with the Plans and Specifications and showing the Unit. The survey shall be
certified to Lender and Title Insurer and shall also include a narrative metes
znd bounds or platted description of the boundary of the Land, the area of the
Land and of the Unit, the location and dimensions of any easement and the
dimensions of the Unit. The surveyor must include on the on the survey a signed
narrative statement certifying the existence or nonexistence of any encroachment
from or onto the Land and must include the date of the survey and the surveyor's
registration number and seal and such other matters as required by Title
Insurer, in form and substance satisfactory to Lender and Title Insurer.
(c) Evidence of Completion. Receipt by Lender of satisfactory evidence
of the completion of the Unit substantial in accordance with the Plans and
Specifications and approval of such completion by local governmental
authorities.
Further, provided there exists no default of the terms and conditions of the
Loan, Lender shall release any Lot from the lien of the Mortgage, provided
construction of improvements has not commenced on the Lot for which a partial
release is requested, upon Lender's receipt of an amount equal to one hundred
twenty percent (120%) of the amount funded per Lot which is estimated to be
$51,166.00 ("Lot Release Price"). The Lot Release Price shall be applied by
Lender against the outstanding principal balance of Note I. Borrower shall pay
all costs in connection with the preparation, execution and recording of partial
releases of the Lots, including, but not limited to, Lender's counsel's fees and
costs.
2. Release of Common Areas. Lender shall, at Borrower's request, release
from the lien of the Mortgage the common areas, road right of ways, and any
water, sewer of drainage or other easement located on the Property, provided the
following terms and conditions are met: (i) the Loan is not in default; (ii)
development of the road right of ways is substantially completed; and (iii) the
common areas, road right of ways, or water, sewer, drainage or other easement
are being conveyed or transferred to the homeowners' association, Broward Conty,
or any other governmental entity or agency; (iv) Borrower provides Lender with
satisfactory evidence of the conveyance or transfer; and (v) there remains
continuous access and ingress and egress to the Property.
3. Costs and Expenses of Releases. The Borrower shall pay all of Lender's
reasonable costs and expenses incurred in the release of the Units.
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ARTICLE V
WARRANTIES OF BORROWER
As material inducements to Lender to enter into this Loan Agreement and to
make the Loan, Borrower hereby warrants to Lender as follows:
1. Validity of Loan Documents. That the Loan Documents are in all
respects legal, valid and binding according to their terms and grant to Lender a
direct, valid and enforceable first lien security interest in the Property and
the personalty located thereon subject only to bankruptcy, insolvency and other
similar laws affecting the rights of creditors.
2. Priority of Lien on Personalty. That no xxxx of sale, security
agreement, financing statement or other title retention agreement (except those
executed in favor of Lender) has or will be executed with respect to any
personal property, equipment or fixtures used in conjunction with the
construction, operation or maintenance of the Improvements.
3. Conflicting Transactions of Borrower. That the consummation of the
transactions hereby contemplated and the performance of Borrower's obligations
under and by virtue of the Loan Documents will not result in any breach of, or
constitute a default under any mortgage, security deed, deed of trust, lease,
bank loan or credit agreement, corporate charter or bylaws or other instrument
to which Borrower is a party or by which it may be bound or affected.
4. Pending Litigation. That there are no actions, suits or proceedings
pending or, to the knowledge of Borrower, threatened against or affecting
Borrower or the Guarantor which affects any of the Property securing the Loan,
or involving the validity or enforceability of any of the Loan Documents or the
priority of the lien thereof, at law or in equity, or before or by any
governmental authority, except actions, suits and proceedings which are fully
covered by insurance and which, if adversely determined, would not substantially
impair Borrower's ability to perform each and every one of its obligations under
and by virtue of the Loan Documents; and that to Borrower's knowledge, it is not
in default with respect to any order, writ, injunction, decree or demand of any
court or any governmental authority.
5. Violations of Governmental Law, Ordinances or Regulations. That
Borrower has no knowledge of any violation or notice of violations of any
federal or state law or municipal ordinance or order or requirement of the
county or city in which the Property is located or any municipal department or
other governmental authority having jurisdiction affecting the Property, which
violations in any way relate to or affect the Property.
6. Compliance with Zoning Ordinances and Similar Laws. That the Plans and
Specifications and construction pursuant thereto and the use of the Property
contemplated thereby have been approved by all appropriate governmental and
quasi-governmental authorities and accordingly comply and will continue to
comply with all applicable governmental and quasi-governmental laws,
regulations, and standard requirements, including but not limited to the Fair
Housing Act of 1968 (as amended, and the Americans with Disabilities Act of
1990).
7. Availability of Utilities. That all utility services necessary for the
construction of the Improvements and the operation thereof for their intended
purpose are available at the boundaries of the Land, including water supply,
storm and sanitary sewer facilities, electric and telephone facilities.
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8. Building Permits. That all building permits required for the construction
of the Improvements have been obtained or may be obtained without undue delay,
unusual expense or material alteration of the Plans and Specifications. Borrower
shall deliver copies of all permits to Lender as they are obtained and before
construction commences.
9. Certificate of Occupancy. That all certificates of occupancy required
for the occupancy or the Improvements have been obtained or may be obtained
without undue delay or unusual expense. Borrower shall deliver copies of all
certificates of occupancy to Lender as they are obtained.
10. Condition of Property. That the Property is not now damaged or injured
as a result of any fire, explosion, accident, flood or other casualty.
11. Brokerage Commissions. That brokerage commission due in connection with
the transaction contemplated hereby has been paid in full and that any such
commission coming due in the future will be paid promptly by Borrower. Borrower
agrees to and shall indemnify Lender from any liability, claim or loss arising
by reason of any such brokerage commission. This provision shall survive the
repayment of the Loan and shall continue in full force and effect so long as
the possibility of such liability, claim or loss exists.
12. Usury. The amounts to be received by Lender which are or which may be
deemed to be interest hereunder or under any of the Loan Documents or otherwise
in connection with the transactions herein contemplated constitute lawful
interest and are not usurious or illegal under the laws of the State of Florida,
and no aspect of the transactions contemplated by this Loan Agreement is or will
be usurious under current Florida law.
13. Accuracy of Information. Lender's commitment to make the Loan, as
expressed in the Commitment and accepted by Borrower is based on the accuracy
of Borrower's and each Guarantor's representations and statements. Neither this
Loan Agreement nor any document, financial statement, credit information,
certificate or statement required herein to be furnished or furnished to Lender
contains any untrue statement of a fact or omits to state a fact material to
this Loan Agreement or to Lender's decision to enter into this Loan Agreement or
the transaction contemplated hereunder. Lender shall have the option to declare
the Loan to be breached if there shall have been any material misrepresentation
or misstatement or any material error in any statement, document or other
submission delivered to Lender, or if prior to the initial Loan disbursement,
there shall have been a material adverse change in the state of facts submitted
to Lender, or if Borrower or any Guarantor has become insolvent, bankrupt or
incapacitated, or has otherwise been subject to any material adverse change in
financial condition. The Commitment is hereby incorporated herein by reference,
but to the extent it conflicts with the Loan Documents, the Loan Documents shall
govern.
14. Set-Offs. As of the date hereof, Borrower does not have any knowledge
after due and diligent inquiry of any defense or set-off with respect to any
money disbursed or otherwise advanced hereunder.
15. Investment Company. Borrower represents and warrants that Borrower is
not an investment company as defined by the Investment Company Act of 1940, as
amended, and that Borrower is not required to register under said Act.
16. Continuation and Investigation. The warranties and representations
contained herein shall be and remain true and correct so long as any of
Borrower's obligations hereunder have not been satisfied, or so long as part of
the Loan shall remain
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outstanding, and each request by Borrower for a disbursement or extension of the
Loan shall constitute an affirmation that the foregoing representations and
warranties remain true and correct as of the date thereof. All representations,
warranties, covenants and agreements made herein or in any certificate or other
document delivered to Lender by or on behalf of Borrower pursuant to or in
connection with this Loan Agreement shall be deemed to have been relied upon by
Lender notwithstanding any investigation heretofore or hereafter made by Lender
or on its behalf, and shall survive the making of any or all of the
disbursements contemplated hereby.
17. Hazardous Substances.
(a) That neither Borrower nor any other person to the Borrower's
knowledge, after reasonable inquiry, has ever used the Property as a facility
for the storage, treatment or disposal of any "Hazardous Substances," as that
term is hereinafter defined;
(b) That the Property is now and at all times hereafter will continue to
be in full compliance with all federal, state and local "Environmental Laws" (as
that term is defined hereinafter), including but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 USC Section 9601, et seq., the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX") , Public Law 99-499, 100 Stat. 1613,
the Resource Conservation and Recovery Act ("RCRA"), 42 USC Section
6901, et seq., the Florida Resource Recovery and Management Act, Section
403.701, et seq., Florida Statutes, the Pollutant Spill Prevention and Control
Act, Section 376.011-376.17 and 376.19376.21 Florida Statutes, as the same may
be amended from time to time and all ordinances, regulations, codes, plans,
orders, and decrees now existing or in the future enacted, promulgated,
adopted, entered or issued, both within and outside present contemplation of
the Borrower and Lender;
(c) That as of the date hereof there are no hazardous or toxic materials,
substances, wastes or other environmentally regulated substances including
solids or gaseous products and any materials containing asbestos), the presence
of which is limited, regulated or prohibited by any state, federal or local
governmental authority or agency having jurisdiction over the Property, or
which are otherwise known to pose a hazard to health or safety of occupants of
the Property, located on, in or under the Property or used in connection
therewith;
(d) That Borrower shall notify Lender of any change in the nature or
extent of any hazardous or toxic materials, substances or wastes maintained on,
in or under the Property or used in connection therewith, and will transmit to
Lender copies of any citations, orders, notices or other material governmental
or other communication received with respect to any other hazardous materials,
substances, wastes or other environmentally regulated substances affecting the
Property;
(e) That Borrower is not aware of, nor has the Borrower nor any of its
subsidiary or affiliated entities received notice of, any past, present or
future events, conditions, circumstances, activities, practices, incidents,
actions or plans which may interfere with or prevent compliance or continued
compliance with Environmental Laws or any ordinance, regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling, or the emission, discharge, release or threatened
release into the environment, of any Hazardous Substance;
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(f) That there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice or demand letter, notice of violation,
investigation, or proceeding pending or threatened against Borrower or the
Property, relating in any way to any Environmental Laws or any regulation code,
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder;
(g) Borrower hereby agrees to indemnify, reimburse, defend and hold
harmless Lender, its officers, directors, employees, successors and assigns from
and against all demands, claims, civil or criminal actions or causes of action,
liens, assessments, civil or criminal penalties or fines, losses, damages,
liabilities, obligations, costs, disbursements, expenses or fees of any kind or
of any nature (including, without limitation, cleanup costs, attorneys',
consultants' or experts' fees and disbursements and costs of litigation at trial
and appellate levels) which may at any time be imposed upon, incurred by or
asserted or awarded against, Lender directly or indirectly, resulting from: (a)
any acts or activities of Borrower, its agents, employees or contractors, at, on
or about the Property which contaminate air, soils, surface waters or
groundwaters over, on or under the property; (b) arising from or out of any
Hazardous Substance on, in or under the Property; (c) pursuant to or in
connection with the application of any Environmental Law to the acts or
omissions of Borrower or any other person and any environmental damage alleged
to have been caused, in whole or in part, by the transportation, treatment,
storage, or disposal of any Hazardous Substance; or (d) arising from or in
relation to the presence, whether past, present or future, of any Hazardous
Substances on the Property.
Without limiting the foregoing, this indemnification provision specifically
protects the Lender against any claim or action from activities described in
(a), (b), (c) or (d) above, based in whole or in part upon any environmental
statute, rule, regulation or policy, including but not limited to Chapters 403
and 376, Florida Statutes, the Florida Administrative Code, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, ("CERCLA") 42
USC Section 9601, et seq., as amended, the Resource Conservation and Recovery
Act, 42 USC Section 6901, et seq., and other laws, whether now in existence or
enacted in the future.
Borrower's indemnification obligation hereunder shall be one of strict
liability and shall be enforceable without regard to any fault or knowledge of
Borrower with respect to any act or omission or condition or event which is the
basis of the claim under such indemnification obligation. Borrower's obligation
under this section shall not be limited to any extent by the term of the Note or
other obligations secured hereby, and such obligation shall continue, survive
and remain in full force and effect notwithstanding payment in full or other
satisfaction or release of said Note (and other obligations secured hereby) the
Mortgage and this Loan Agreement, or any foreclosure under the Mortgage, or any
delivery of a deed in lieu of foreclosure, unless Borrower is released pursuant
to paragraph 20 of that certain Environmental Compliance and Indemnification
Agreement of even date herewith. The provisions of this section shall be
deemed to survive and continue in full force and effect after any foreclosure
or other proceeding by which the Lender, and its successors and assigns succeed
to ownership of the Property.
As used herein, "Environmental Law" means any federal, state, local
statutory or common law relating to pollution or protection of the environment,
including without limitation, any common law of nuisance or trespass, and any
law or regulation relating to emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment (including without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or otherwise relating to the manufacture,
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processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances.
As used herein, "Hazardous Substance" means any substance or material (i)
identified in Section 101(14) of CERCLA, 42 USC Section 9601(14), as the same
may be amended from time to time, or (ii) determined to be toxic, a pollutant or
contaminant, under federal, state or local statute, law, ordinance, rule or
regulation or judicial or administrative order or decision, as same may be
amended from time to time, including but not limited to petroleum and petroleum
products as defined in Sec. 376.301(10), Florida Statutes, as same may be
amended from time to time;
(h) Lender shall have the right,to require Borrower to (but not more
frequently than annually unless an Environmental Complaint is then outstanding)
perform (at Borrower's expense) an environmental audit and, if deemed necessary
by Lender, an environmental risk assessment, each of which must be satisfactory
to Lender in its sole discretion, of the Property, hazardous waste management
practices and/or hazardous waste disposal sites used by Borrower. Such audit
and/or risk assessment must be by an environmental consultant satisfactory to
Lender. Should Borrower fail to perform such environmental audit or risk
assessment within 30 days of the Lender's written request, Lender shall have the
right but not the obligation to retain an environmental consultant to perform
such environmental audit or risk assessment. All costs and expenses incurred by
Lender in the exercise of such rights shall bear interest at the default rate
set forth in the Note and shall be secured by the Mortgage and shall be payable
by Borrower upon demand or charged to Borrower's loan balance at the discretion
of the Lender; and
(i) Any breach of warranty, representation or agreement contained in
this Section shall be an Event of Default hereunder and shall entitle Lender
to exercise any and all remedies provided in the Mortgage, or otherwise
permitted by law.
18. Florida Construction Contract Prompt Payment Law. In consideration of
the making of the Loan by the Lender, Borrower does hereby agree to indemnify
and hold the Lender harmless from any and all losses, claims, and damages,
including interest, and attorneys fees, which the Lender may suffer by virtue of
the Lender having failed to comply with any of the provisions of the Florida
Construction Contract Prompt Payment Law or Florida Statutes section 713.3471.
Notwithstanding the matters set forth herein, this indemnification provision
shall not be binding if Lender shall not comply with the terms and conditions of
Article III of this Loan Agreement.
ARTICLE VI
COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as follows:
1. Loan Agreement. To duly and punctually perform, observe and comply with
all of the terms, provisions, conditions, covenants and agreements on its part
to be performed, observed and complied with hereunder and under the Loan
Documents and any other documents and instruments delivered to Lender in
connection herewith. Borrower will not suffer or permit any default or Event
of Default, as hereinafter defined to exist hereunder or thereunder. Borrower
will promptly give notice in writing to Lender (a) of the occurrence of any
material litigation or proceeding affecting Borrower and whether or not
Borrower's liability, if any, is covered by insurance, and (b) of any dispute
between Borrower and any governmental or regulatory body or any other party,
which dispute may materially interfere with Borrower's normal operations or with
construction of the Improvements.
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2. Construction Contract. (a) To permit no default under the terms
of the Construction Contract; (b) to waive none of Contractor's obligations
thereunder; (c) to do no act which would relieve contractor from its
obligations to construct the Improvements according to the Plans and
Specifications; and (d) to make no amendments, other than change orders as may
be permitted hereunder and under the Mortgage, to the Construction Contract
without Lender's prior written consent.
3. Agreement of Architect and Engineer. To promptly furnish
Lender with an agreement by Architect and Engineer, in form and content
acceptable to Lender, that, in the Event of Default by Borrower, as hereinafter
defined or under the terms of any of the Loan Documents, Architect and Engineer
will, at Lender's request: (a) continue performance pursuant to its agreement
with Borrower until completion of construction of the Improvements, provided
that Lender shall compensate Architect and Engineer from the date of Lender's
assuming such agreement in accordance with said agreement for all such services
rendered, and (b) permit Lender to use the Plans and Specifications at no cost
to Lender.
4. Agreement of Contractor. To promptly furnish Lender with an
agreement by Contractor, acceptable to Lender, that, in the Event of Default,
as hereinafter defined by Borrower under the terms of the Loan Documents,
Contractor will, at Lender's request, continue performance pursuant to its
agreement with Borrower until completion of construction of the Improvements,
provided that Contractor shall be compensated by Lender from the date of
Lender's assuming such agreement in accordance with said agreement for all such
services rendered.
5. Construction Subcontracts.
(a) To permit no default under the terms of the Major
Subcontracts;
(b) To waive none of Subcontractors' obligations
thereunder; and
(c) To do no act which would relieve Subcontractors of
their respective obligations to construct the Improvements according
to the Plans and Specifications.
6. Insurance. Borrower will procure for, deliver copies of and
original certificates of and maintain for the benefit of Lender during the life
of the Mortgage, insurance policies in such amounts as Lender shall require,
including a minimum of $1,000,000.00 / $1,000,000.00 of liability insurance
along with $3,000,000.00 umbrella policy, and insurance insuring the Property
against fire, builder's risk, hazard, extended coverage and such other
insurable hazards, casualties and contingencies as Lender may require. The
form of such policies and the companies issuing them shall be acceptable to
Lender. All policies shall contain a standard, non-contributory mortgagee
endorsement making losses payable to Lender, its successors and/or assigns, as
mortgagee and loss payee. All policies shall include a provision for a minimum
thirty (30) day advance notice to Lender of any intended policy cancellation or
modification. Borrower shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
hereunder, unless Lender is included thereon under a standard, non-contributory
mortgagee endorsement making losses payable to Lender. Borrower shall
immediately notify Lender whenever any such separate insurance is taken out and
shall promptly deliver to Lender the policy or policies of such insurance. The
said property insurance so obtained shall include "all risks", builder's risk,
on a nonreporting 100% completed value form, on the Improvements, buildings,
machinery, equipment, materials, supplies and temporary structures and all
other property of any nature used for the construction of the buildings,
excluding foundations. This
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coverage for interest expense is limited to the period of time from the date
of physical damage until such time as will reasonably elapse, in the exercise of
due diligence, to the repair of the damage to its prior state. The amount of
coverage of the policy of insurance shall be the full replacement cost,
including underground work. Applicable notice to be given to Lender at the
following address: Xxxxxxx Bank of South Florida, N.A., Document Services, Xxxx
Xxxxxx Xxx 00000, Xxxxxxxxxxxx, Xxxxxxx 00000-0000.
At such time as any portion of the Improvements are completed,
Borrower shall submit to Lender a business interruption or rent loss insurance
policy in an amount acceptable to Lender, issued by an insurance company
acceptable to Lender in Lender's sole discretion.
The Borrower shall submit to Lender evidence satisfactory to Lender as
to whether or not the Property or any part thereof is located within an area
identified pursuant to the Flood Disaster Protection Act of 1973 as being in a
flood hazard area. If the Property is located in a flood hazard area, flood
insurance shall be obtained for the maximum amount of coverage available
through the federal flood insurance program for the improvements located on the
Property from time to time or 100% of the highest insurance value of the
improvements on a replacement cost basis, whichever is less. The flood policy
shall cover the same parties covered under the other insurance policies with
coverage for flood, collapse, rain damage and such other usual coverage as may
be obtained thereunder, and such policy will be written with an insurance
company and with cancellation provisions as hereinabove provided. The
insurance coverage, without limiting the same by this description, shall extend
to any loss occasioned by fire, windstorm, other perils of extended coverage,
vandalism, malicious mischief, theft, mysterious disappearance and such other
coverage as is a normal incidence of such insurance. The foregoing insurance
shall specifically cover necessary architect and engineering fees necessary to
repair or replace any insured property and shall also cover debris removal.
Further, the insurance shall at least permit waiver of subrogation so any
release of liability entered into prior to any loss will not affect the
validity of the coverage otherwise provided.
At least thirty (30) days prior to the expiration date of all such
policies, Borrower shall deliver to Lender proof of renewals of all required
policies in a form satisfactory to Lender. Borrower shall deliver to Lender
receipts evidencing the payment of all such insurance policies and renewals on
an annual basis. As further security for the indebtedness secured hereby, the
delivery of the insurance policies to Lender shall constitute an assignment of
all unearned premiums. In the event of the foreclosure of the Mortgage or any
other transfer of title to the Property in extinguishment of the indebtedness
secured hereby, all right, title and interest of Borrower in and to all
insurance policies then in force shall pass to the purchaser or grantee.
Lender is hereby authorized and empowered, at its option, to adjust or
compromise any loss under any insurance policy. Each insurance company is
hereby authorized and directed to make payment for all such losses directly to
Lender instead of to Borrower and Lender jointly. After deducting from the
insurance proceeds any expense incurred by it in the collection or handling of
said funds, Lender shall apply the net proceeds, at it's sole option, to the
reduction of the sums secured hereby or toward the repair and restoration of the
Improvements, or for any other purpose or object satisfactory to Lender without
affecting the lien of the Mortgage for the full amount secured hereby before
such payment took place. Lender shall not be held responsible for any failure
to collect any insurance proceeds due under the terms of any policy, regardless
of the cause of such failure.
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If required by Lender after the occurrence of an Event of Default,
Borrower will pay to Lender on the first (1st) day of each month, together with
and in addition to the regular installment of interest and principal and until
the Note is fully paid, an amount equal to one-twelfth (1/12) of the yearly
premiums for insurance, to enable Lender to pay such insurance premiums when
due. The Borrower shall promptly furnish Lender with the insurance premium
statements. Such added payments shall not be nor be deemed to be trust funds,
but may be commingled with the general funds of Lender and Lender shall not pay
interest on them. At the option of Lender, such added payments may be carried
as a debit item on Lender's books and accounts. Upon demand of Lender,
Borrower agrees to deliver to Lender such additional sums as are necessary to
make up any deficiencies in the amounts necessary to enable Lender to pay such
insurance premiums. Lender shall have no responsibility for payment of any
premium for insurance hereunder, except to the extent that funds are deposited
by Borrower with Lender hereunder. In the event of a default by Borrower in
the performance of any of the terms, covenants and conditions in the Mortgage,
this Loan Agreement or the Note, Lender may, at Lender's option, apply any
amount then held by Lender under this paragraph to the reduction of the
indebtedness secured in the Mortgage.
If Borrower fails to provide any required insurance or fails to
continue such insurance in force, Lender may do so at the Borrower's expense.
BORROWER ACKNOWLEDGES THAT IF LENDER SO PURCHASES ANY SUCH INSURANCE, THE
INSURANCE WILL PROVIDE LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE
PREMISES, UP TO THE BALANCE OF THE NOTE; HOWEVER, BORROWER'S EQUITY IN THE
COLLATERAL MAY NOT BE INSURED. IN ADDITION, THE INSURANCE MAY NOT PROVIDE ANY
PUBLIC LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND MAY NOT MEET THE
REQUIREMENTS OF ANY FINANCIAL RESPONSIBILITY LAWS.
7. Collection of Insurance Proceeds. To cooperate with Lender in
obtaining for Lender the benefits of any insurance or other proceeds lawfully
or equitably payable to Borrower or Lender in connection with the transactions
contemplated hereby and in paying any indebtedness or obligation of Borrower to
Lender incurred hereunder (including the payment by Borrower of the expense of
an independent appraisal on behalf of Lender in case of a fire or other
casualty affecting the Property).
8. Ad Valorem Tax. Subject to the provisions in the Mortgage,
Borrower shall submit proof, on an annual basis, that all ad valorem real
property taxes have been timely paid.
9. Application of Loan Proceeds. To use the proceeds of the Loan
solely for the purpose set forth herein and in no event to use any of the Loan
proceeds for any other purpose whatsoever. Borrower shall make only such
payments to the Contractor on account of other contracts or for other work
which may entitle the person performing such work to lien rights in the
Property as are proper payments under the Florida Construction Lien Law.
10. Expenses. To pay any and all costs of closing the Loan, and
any and all costs incurred during the term of the Loan any and all expenses of
Lender with respect thereto, including but not limited to fees of Lender's
Inspector, the disbursing agent, reasonable attorneys' fees and costs
(including reasonable attorneys' fees and costs incurred by Lender subsequent
to the closing of the Loan in connection with the disbursement, administration,
collection, restructure, amendment or transfer of the Loan), advances,
recording expenses, surveys, title insurance premiums, intangible taxes,
documentary stamps, sales taxes, surtax and other revenue fees, escrow fees,
Architect's and Engineer's costs and inspection fees, expenses of foreclosure
(including attorneys' fees and costs where Lender is a prevailing party) and
similar items, and to allow all closing papers, Loan Documents and other legal
matters to be subject to the approval of Lender's counsel. Under no
circumstances will Lender pay to any third party
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any mortgage brokerage or other fees incurred in connection with this Loan and
Borrower covenants and agrees to indemnify Lender and hold Lender harmless from
any and all such claims for fees or commissions by third parties. Further,
Borrower agrees to Day all of Bank's costs and reasonable attorneys' fees,
including all appellate litigation, involving any of such claims.
11. Borrower's Equity Requirement. Lender reserves the right to
require, at Borrower's expense, a construction cost analysis by Lender's
Engineer or by an expert in the construction cost field, which expert shall be
designated by Lender. If Lender estimates, at any time and from time to time,
that the amount necessary to assure final completion of the construction of the
Improvements including but not limited to interest and other soft or non-
construction budget items during the term of the Loan (the "Total Budget")
shall exceed the amount of the undisbursed Loan proceeds plus the total amount
of all equity investments made or scheduled to be made by Borrower, then Lender
shall have the option to require Borrower (a) to immediately deposit with
Lender the amount of any such difference, in cash or other form satisfactory to
Lender, which amount shall be disbursed toward the Total Budget costs prior to
any advance by Lender under the Loan, or (b) to expend the amount of any such
difference for items included in the Total Budget with satisfactory evidence of
such expenditure being provided to Lender prior to any advance by Lender of the
Loan funds. Lender shall be assured at all times, to its satisfaction, that
the undisbursed Loan funds are sufficient to complete the Improvements in
accordance with the Total Budget and in accordance with the Plans and
Specifications and this Loan Agreement. (Lender reserves the right of
continual verification of adequate equity investments made by Borrower as
herein set forth.) Each such deposit shall be expended before any or any other
Loan disbursements will be made,and it shall be advanced as construction
progresses.
12. Commencement and Completion of Construction. Development of
the Property shall commence within sixty (60) days of this date and subsequent
to the recordation of a Notice of Commencement, and Borrower shall diligently
pursue said construction to completion. Good workmanship and quality materials
shall be utilized. Quality of construction is of the essence and each
construction draw shall be subject to satisfactory quality and completion of
work in place. Borrower shall supply such sums of money and perform such
duties as may be necessary to complete the construction of the Improvements
pursuant to the Plans and Specifications and in full compliance with all terms
and conditions of the Loan Documents, all of which shall be accomplished within
the Term of the Construction Period as defined herein, and without liens,
claims or assessments (actual or contingent) asserted against the Property for
any material, labor or other items furnished in connection therewith, and all
in full compliance with the Florida Construction Lien Law, and further in
compliance with all construction, use, building, zoning and other similar
requirements of any pertinent governmental authority. Borrower will provide to
Lender evidence of satisfactory compliance with all of such requirements upon
request therefor by Lender. Completion of construction shall include but not
be limited to grading, landscaping, adequate sewer, water, electrical, gas,
telephone and other utility facilities, completed streets, sidewalks, drainage
and curbs, both on-site and off-site, public and private. The development of
all land development improvements shall be completed nine (9) months from the
date of Closing of the Loan. The construction and development of any Unit
described herein shall be substantially completed within seven (7) months of
the date that funds are first advanced with respect to the unit ("Term of the
Construction Period"). Borrower shall not be required to substantially
complete said construction within seven (7) months if said completion is
delayed due to any acts of God, emergencies, strikes or other causes out of
Borrower's control. Notwithstanding the Lender's determination that the Term
of the Construction Period
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shall be extended for this reason, the Lender, in its sole discretion at any
time, shall determine the length of the extension period to substantially
complete the construction of the improvements and Borrower shall promptly and
diligently complete said construction therefor. Borrower agrees to amend the
Notice of Commencement to extend the duration of its effectiveness if the
construction is delayed beyond the Term of the Construction Period. The
construction and development of the improvements shall be inspected and
approved by Lender's Inspector. "Substantially Completed" shall mean that the
Improvements have been completed in a sufficient manner to obtain all requisite
Certificates of Occupancy.
13. Access. Except for driveways and roads to be constructed on
the Property, the rights-of-way for all roads necessary for the full
utilization of the Improvements for their intended purposes, have either been
acquired by the appropriate governmental authority or have been dedicated to
public use and accepted by such governmental authority, and all such roads
shall have been completed, or all necessary steps shall have been taken by
Borrower and such governmental authority to assure the complete construction
and installation thereof prior to the date upon which access to the Property
via such roads will be necessary. All curb cuts and traffic signals shown on
the Plans and Specifications are existing or have been fully approved by all
necessary governmental authorities.
14. Right of Lender to Inspect Property and Review Plans. To
permit Lender and its representatives and agents and Lender's Inspector to
enter upon the Property and to inspect the Improvements and all materials to be
used in the construction thereof and to cooperate and cause Contractor to
cooperate with Lender and its representatives and agents and Lender's Inspector
during such inspections (including making available to Lender working copies of
the Plans and Specifications together with all related supplementary
materials); provided, however, that this provision shall not be deemed to
impose upon Lender any obligation to undertake such inspections. Lender shall
designate a construction Inspector to perform various services on behalf of
Lender. The costs of these services shall be charged to and shall be paid by
Borrower. The services performed by Lender's Inspector include but are not
limited to review of the Plans and Specifications, review of any and all
construction contracts, review of any and all other documents in the possession
or control of Borrower or any general contractor relating to the construction
of Improvements and all proposed changes to them, inspection of construction
work for conformity with the approved Plans and Specifications and approval of
requests for Loan disbursements. Borrower's architect and engineer shall
perform those services described in the architecture and engineer contracts,
including approvals of requisitions for payment required herein and the
submission to Lender of the architect's and engineer's certification required
prior to final disbursement.
15. Correction of Defects. To promptly correct any defect in the
Improvements or any departure from the Plans and Specifications not permitted
herein which has not been approved previously by Lender. The advance of any
Loan proceeds shall not constitute a waiver of Lender's right to require
compliance with this covenant.
16. Sign Regarding Financing. To promptly erect and maintain on
the Property, an a site suitable to Lender, a sign (1) , to be provided at
Lender's expense, indicating that Lender is providing financing, all to
Lender's reasonable satisfaction, and to prevent the destruction or removal of
said sign without Lender's prior written approval; provided, however, such sign
shall not violate any ordinance or restrictive covenant.
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17. Approval of Change Orders. To permit, during the construction
of the Improvements, no individual deviation from the Plans and specifications
which exceeds $5,000.00, and to permit no multiple deviations which, in the
aggregate, exceed $10,000.00, without Lender's prior written approval.
Notwithstanding the foregoing, no approval of Lender shall be required in
connection with changes requested by a purchaser under an approved Sales
Contract provided that the purchaser is required to pay Borrower for the cost
of all such changes under the terms of such approved Sales Contract.
Regardless of amount, Borrower shall submit all change orders to Lender within
five (5) days of the submission thereof to the Contractor.
18. Books and Records. To keep and maintain proper and accurate
books, records and accounts reflecting all items of income and expense of
Borrower in connection with the Property and the construction thereon; and upon
the request of Lender, to make such books, records and accounts immediately
available to Lender for inspection or independent audit. Such inspection shall
take place in Borrower's offices during normal business hours.
19. Financial and Operating Statements.
(a) To submit to Lender quarterly financial statements,no
later than 45 days after each quarter, certified to Lender or on a
Lender approved form, prepared in accordance with generally-accepted
accounting principles with respect to Borrower.
(b) To submit to Lender annual financial statements (both
consolidating and consolidated statements), including cash flows,
certified to Lender or on a Lender approved form, prepared in
accordance with generally-accepted accounting principles, with respect
to Borrower and the Guarantor. The statements shall be audited by a
certified public accountant.
20. Monthly Reports. To submit to Lender monthly reports
indicating the sales status of the Project along with a copy of all executed
contracts.
21. Additional Documents. To perform hereunder as follows:
(a) Construction. To furnish to Lender all instruments,
documents, initial surveys, footing or foundation surveys (following
the pouring of the final slab), certificates, plans and
specifications, appraisals, title insurance and other insurance,
reports and agreements and upon request (i) financial statements of
Borrower, and the Guarantor; (ii) other or further information as to
the financial condition of Borrower, and the Guarantor; (iii) the
names of all persons with whom Borrower has contracted or intends to
contract for major contracts for the construction of the Improvements
or the furnishing of labor or materials therefor (for the purposes
hereof, a major contract shall be any contract in excess of $20,000.00
designated by Lender to be a Major Contract); (iv) copies and/or lists
of all paid and/or unpaid bills for labor and materials with respect
to the construction of the Improvements; and (v) budgets of Borrower
and revisions thereof showing the estimated cost of construction of
the Improvements and funds required at any given time to complete and
pay or such construction, and each and every other document and
instrument required to be furnished by the terms of the Commitment.
(b) Preservation of Security. To sign and deliver to
Lender such documents, instruments, assignments and other writings,
and to do such other acts necessary or desirable to preserve and
protect the collateral at any time securing or intended to secure the
Note, as Lender may require.
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(c) This Loan Agreement. To do and execute all and such
further lawful and reasonable acts, conveyances and assurances in the
law for the better and more effective carrying out of the intents and
purposes of this Loan Agreement, as Lender shall reasonably require
from time to time.
22. Further Encumbrances. There shall be no secondary or further
financing of the personal or real property now or hereafter located on the
Property, or any part thereof, without Lender's prior written consent, which
consent Lender may arbitrarily withhold.
23. Leases and Sales Contracts Affecting Property. Borrower shall
not enter into any sales contract(s) affecting any portion of the Property for
which Borrower shall receive Loan monies pursuant to Note II upon terms which
are materially different from the sales contract previously approved by Lender
without Lender's prior written consent. If Lender is not and shall not fund
the construction of a particular Unit pursuant to Note II, Borrower shall
provide Lender with copies of the executed contract for the sale of said Unit
within ten days of execution of said Unit Contract, however, Lender shall have
no approval rights of contracts for Units which are not being funded pursuant
to Note II. Borrower shall not enter into any lease affecting any portion of
the Property.
24. Mortgagee Title Insurance. Borrower warrants that there are
no matters pending against Borrower or the project which could result in a
change in the status of the title to the Property in the period of time between
the effective date of the commitment for mortgagee title insurance and the
recording of the Mortgage (the "gap"). Borrower covenants that it shall not
commit any act or permit any act to be committed which might result in a change
in the status of the title to the Property during the gap, and Borrower shall
indemnify Lender and the title insurance agent and the title insurance
underwriter from any and all losses, costs and expenses (including reasonable
attorneys, fees and costs) suffered as a result of a change in the status of
the title to the Property during the gap.
25. Warranties and Representations True. Borrower's warranties,
representations and covenants in the Loan Documents shall be true and correct
on and as of the date of each advance with the same effect as if made on such
date.
26. Florida Construction Contract Prompt Payment Law.
(a) Borrower shall fully and timely comply with all of
the provisions of the Florida Construction Contract Prompt Payment
Law, Chapter 92-286, Laws of Florida, as amended from time to time.
Prior to the commencement of construction, and throughout the term of
the construction period of the Loan, the Borrower shall provide to the
Lender, a true, complete and correct list of all Major Subcontractors,
Major Contract Materialmen, and suppliers of custom fabricated items
which are to be incorporated into the Improvements. The Borrower shall,
at all times during the term of the construction period of the Loan,
provide to the Lender, within 10 days of the Borrower's receipt
thereof, Claims of Lien, and Demands Sworn Statement of Account,
issued by any party, whether pursuant to the Notice of Commencement or
otherwise,in connection with the Project.
(b) The Borrower and Lender stipulate and agree that for
purposes of section 713.3471(2), none of the construction loan
proceeds (as referred to in the statute) have been designated as
"Designated Construction Loan Proceeds", as defined in and by such
statute. In the event
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that the stipulation contained in this paragraph is deemed invalid, or
unenforceable, in whole or in part, then, in such event, to the extent
of such invalidity or unenforceability, the Borrower shall be deemed
to have not consented to the disbursement of any reallocated loan
proceeds, except where the Lender, prior to any disbursement not in
accordance with the original allocation of loan proceeds,
affirmatively notifies the Borrower in writing that it will avail
itself of a provision in the Mortgage, or this Loan Agreement,
permitting such reallocated disbursement ("Lender's Reallocated
Disbursement"). In the event that the Lender is going to make a
Lender's Reallocated Disbursement, the Borrower agrees that it shall,
within 3 business days of a request by the Lender, provide to the
Lender a written list, certified by an officer or official of the
Borrower having knowledge of the circumstances, and authority to
provide certificates on behalf of the Borrower, containing the name
and address of all contractor(s) (including all parties who may be
deemed a Contractor as a multiple prime contractor, or by virtue of
the relationship between the Borrower and any other party or entity
furnishing labor, material or services to the Project), and all other
actual and potential lienors, including, but not limited to, those who
have served a statutory notice to owner upon the Borrower in order to
insure that the Lender will be able to comply with the requirements of
Section 713.3471(2)(b) of the Florida Statutes.
(c) in the event that the Borrower requests a
reallocation of any portion of the construction loan proceeds in
accordance with the provisions of section 713.3471 of the Florida
Statutes, such reallocation request will be considered in accordance
with the terms and conditions of this Loan Agreement, and the Borrower
shall fully and timely comply with all of the Borrower's obligations
under section 713.3471(2)(a) of the Florida Statutes, including, but
not limited to, the providing of all notices required thereby, and
Borrower shall provide to Lender written sworn statements executed by
contractor(s) (as defined above) and all other actual or potential
lienors (as defined above), confirming that the contractor(s) or other
lienor or third party has received the written notice required by
section 713.3471 (2)(a) of the Florida Statutes. The Lender shall
not be obligated to approve a reallocation requested by the Borrower,
or to disburse funds pursuant to an approved reallocation request made
by the Borrower, until and unless the Borrower has complied with all
of its obligations relating to such disbursement under the terms and
provisions of this Loan Agreement and section 713.3471 of the Florida
Statutes. Nothing contained herein shall be deemed to constitute a
waiver by the Lender of any of its rights relating to the approval of
disbursement requests or construction budget or allocations provided
elsewhere in this Loan Agreement.
ARTICLE VII
DEFAULT'S
Upon the occurrence of any one or more of the following circumstances,
after the passage of time provided herein ("Event(s) of Default"), Lender
shall, at its option, be entitled, in addition to and not in lieu of the
remedies provided for the Note, Mortgage, or other Loan Documents, to proceed
to exercise any remedy described herein:
1. Default Under Promissory Note. Failure by Borrower to pay,
within fifteen (15) days when due and payable, any installment of interest:,
principal or any other payment required to be paid by this Loan Agreement, the
Mortgage, the Note or any other Loan Documents; or
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2. Default Under Loan Documents. Failure by Borrower or
Guarantor to duly observe any other covenant, condition or agreement of this
Loan Agreement, the Mortgage, the Note, the commitment, or any Loan Document or
any other security instrument given hereunder not involving the payment of
money which is not cured within fifteen (15) days after Borrower's receipt of
written notice of default, or such longer period of time if the default, by its
nature cannot be cured within said fifteen (15) day period provided Borrower
commences the curative action within said fifteen (15) day period and
diligently pursues the curative action until completion, but in no event shall
this provision be deemed or construed to extend the period for completion of
construction of the Improvements as provided in the Loan Agreement; or
3. Breach of Warranty. Any warranty made or agreed to be made
herein or in any related Loan Document heretofore, concurrently or hereafter
executed shall be breached by Borrower or Guarantor or shall prove to be false
or misleading; or
4. Filing of Liens Against the Property. Any lien for labor,
material, taxes or otherwise shall be filed against the Property or otherwise
incurred and not be (i) removed; (ii) bonded off; or (iii) if Borrower files a
Notice of Contest and does not place an amount equal to one hundred ten percent
(110%) of the amount of the lien with TICOR Title Insurance Company within
fifteen (15) days from Borrower's receipt of notice of the filing any such
lien; or
5. Material Adverse Change. Borrower or any Guarantor shall
suffer any material adverse change in either's respective financial condition
which, in Lender's reasonable opinion, could impair the ability of Borrower to
perform all of its duties and obligations under the Loan Documents; or
6. Deficiency. In Lender's sole opinion, the cost of completing
the Improvements in accordance with the Plans and Specifications exceeds the
total amount set forth in the Loan Budget, and Borrower has failed to make
arrangements satisfactory to Lender, in Lender's sole discretion, for the
payment of such additional costs; or
7. Levy upon the Property. A levy be made under any process on,
or a receiver be appointed for the Property or any other property of Borrower
which is not discharged within thirty (30) days; or
8. Bankruptcy or Insolvency of Borrower.
(a) The filing by Borrower or Guarantor of a voluntary or
involuntary petition in bankruptcy for adjudication as a bankrupt or
insolvent, or the filing by Borrower or Guarantor of any petition or
answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
for itself under any present or future federal, state or other
statute, law or regulation relating to bankruptcy, insolvency or other
relief for debtors, or Borrower or Guarantor seeking or consenting to
or acquiescing in the appointment of any trustee, receiver or
liquidator of Borrower or Guarantor or of all or any substantial part
of the Property or of any or all of the rents, revenues, issues,
earnings, profits or income thereof, or the making of any general
assignment for the benefit of creditors, or written admission by
Borrower or Guarantor of its inability pay its debts generally as they
become due; or
(b) The filing of a petition against Borrower or
Guarantor which is not dismissed within forty-five days thereof
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under
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any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for
debtors, or the appointment of any trustee, receiver or liquidator of
Borrower or Guarantor of all or any substantial part of the Property
or of any or all of the rents, revenues, issues, earnings, profits or
income thereof without Borrower's consent or acquiescence; or
9. Assignment for the Benefit of Creditors. Borrower or
Guarantor shall make a general assignment for the benefit of creditors; or
10. Transfer of Property. The sale transfer, conveyance of
further encumbrance all or any part of its interest in the Property or in any
or the personalty located thereon or used or intended to be used in connection
therewith whether voluntary or by operation of law, without Lender's prior
written consent, excepting only transfers due to involuntary condemnation which
do not render the Property useless for its intended purpose hereunder. For
purposes of this paragraph, an assignment, sale or transfer shall also include
any assignment, sale, transfer hypothecation or any transfer or any stock of
the Borrower other than to an existing shareholder; or
11. Abandonment of Cessation of Construction. Construction of the
Improvements shall be abandoned or shall cease for any reason and not be
resumed within fifteen (15) business days thereafter unless such cessation is
due to any reason set forth herein, including to strike or unavailability of
materials unless such events of force majeure shall delay construction so long
that the Improvements reasonably cannot be completed within the time allocated
for completion herein; or
12. Lien Against Property. Borrower grants any mortgage, lien or
encumbrance upon the Property, except impact fees which shall be paid by
Borrower prior to the funding by Lender on a Unit; or
13. Encroachments and Permits. All or any portion of the
Improvements which encroach upon any street or road setback or easement or upon
any adjoining property, or violate any ordinance, regulation, rule or direction
of any federal or state agency, or of any governmental or quasi-governmental
authority, or any zoning setback line, or the building permit(s) shall be
revoked or suspended or shall lapse, or if any building or other permit or
license shall be conditional in nature and Borrower shall fail to punctually
satisfy the conditions so as to prevent its invalidity; or
14. Unauthorized Work. Borrower shall, without Lender's prior
written consent, undertake or contract for work on the Property outside of or
beyond the scope of the Plans and Specifications with the exception of any
change order which is in an amount less than $5,000.00 unless otherwise
authorized pursuant to the terms of this Loan Agreement; or
15. Breach. A violation or breach shall occur in any agreement,
covenant or restriction affecting title to the Property, including but not
limited to matters appearing as permitted exceptions in the Title Policy which
is not cured within fifteen (15) days after Borrower's receipt of written
notice of breach, or such longer period of time if the breach, by its nature
cannot be cured within said fifteen (15) day period provided Borrower commences
the curative action within said fifteen (15) day period and diligently pursues
the curative action until completion; or
16. Commencement of Construction. Construction of the Improvements
has not commenced within sixty (60) days of the date hereof; or
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17. Filing of Notice. The filing for record by Borrower or
Guarantor of a notice limiting the maximum amount which may be secured by the
Mortgage pursuant to Section 697.04(1)(b) of the Florida Statutes (1993).
18. Cross-Default of Note. Any breach or event of default pursuant
to Note I and Note II shall be an event of default pursuant to both Note I and
Note II.
ARTICLE VIII
REMEDIES OF LENDER
Upon the occurrence of any one or more of the circumstances set out as
an Event of Default herein, Lender shall, at its option, be entitled, in
addition to and not in lieu of the remedies provided for in the Note, Mortgage
or other related Loan Documents, to proceed to exercise any of the following
remedies:
1. Default Constitutes Default Under Loan Documents. Borrower
agrees that the occurrence of such Event of Default shall constitute a default
under each of the Loan Documents, thereby entitling Lender (a) to exercise any
of the various remedies therein provided, including the acceleration of the
indebtedness evidenced by the Note and the foreclosure of the Mortgage, and (b)
cumulatively to exercise all other rights, options and privileges provided by
law or in equity.
2. Acceleration of Maturity.
(a) In the event any payment of the principal sum, or any
installment thereof, or any interest thereon, is not made when payment is due,
after expiration of any applicable grace period the Loan may be declared in
default and the entire amount of the Note or so much as may have been advanced,
including the principal balance then outstanding, together with all interest
accrued thereon, shall be accelerated and shall become immediately due and
payable, at the option of Lender and without notice (the Borrower hereby
expressly waives notice of such default), time being of the essence of this
agreement.
(b) In the event Borrower fails to perform any covenant,
condition or agreement required in this Loan Agreement, the Note, Mortgage, or
any other related Loan Documents, after the expiration of any applicable grace
period, Lender may declare the Loan in default and the entire amount of the
Note, including the principal balance then outstanding, together with all
interest accrued thereon, shall be accelerated and declared to be immediately
due and payable at the option of Lender.
3. Lender's Right to Enter and Take Possession, Operate and Apply
Income.
(a) If an Event of Default shall have occurred and be
continuing, Borrower agrees that upon Lender's demand, Borrower shall forthwith
surrender to Lender the actual possession and, to the extent permitted by law,
Lender itself or by such officers or agents as it may appoint, may enter and
take possession of all the Property and may exclude Borrower and its agents and
employees wholly therefrom and may have joint access with Borrower to the
books, papers and accounts of Borrower.
(b) If an Event of Default shall have occurred and be
continuing, and if Borrower shall for any reason fail to surrender or deliver
all or any portion of the Property to Lender upon demand, Lender may obtain a
judgment or decree conferring on Lender the right to immediate possession or
requiring Borrower to deliver immediate possession of all or part of the
Property to Lender.
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(c) Borrower will pay to Lender upon demand, all expenses
of obtaining such judgment or decree (including all expenses incurred by Lender
as a result of any appeal), together with reasonable compensation to Lender,
its attorneys and agents; and all such expenses and compensation shall be
secured by the lien of the Mortgage.
(d) Upon every such entering upon or taking of
possession, Lender may hold, store, use, operate, manage and control the
Property and conduct Borrower's business on the Property and, from time to
time:
(i) make all maintenance, repairs, renewals,
replacements, additions, betterments and improvements necessary and
proper to the Property and purchase or otherwise acquire additional
fixtures, personalty and other property;
(ii) insure the Property;
(iii) manage and operate the Property and exercise
all of the rights and powers of Borrower (in Lender's name or
otherwise) with respect to the management and operation of the
Property;
(iv) enter into any and all agreements with
respect to the exercise by others of any of the powers herein granted
to Lender;
(v) to perform or cause to be performed any and
all work and labor necessary to complete the Improvements in
accordance with the Plans and Specifications; and
(vi) to disburse that portion of the Loan proceeds
not previously disbursed (including any retainage) to the extent
necessary to complete construction of the Improvements in accordance
with the Plans and Specifications, and if such completion requires a
larger sum than the remaining undisbursed portion of the Loan, to
disburse such additional funds, all of which funds so disbursed by
Lender shall be deemed to have been disbursed to Borrower and shall be
secured by the Mortgage. For this purpose, Borrower hereby
constitutes and appoints Lender its true and lawful attorney-in-fact
with full power of substitution to complete the construction of the
Improvements in Borrower's name and hereby empowers Lender as said
attorney-in-fact to take all actions necessary in connection
therewith, including but not limited to the following: (i) to use any
funds of Borrower, including any balance which may be held in escrow
and any funds which may remain unadvanced hereunder, for the purpose
of completing the Improvements in the manner called for by the Plans
and Specifications; (ii) to make such additions and changes and
corrections in the Plans and Specifications which shall be necessary
or desirable to complete the Improvements in substantially the manner
contemplated by the Plans and Specifications; (iii) to employ such
contractors, subcontractors, agents, architects and engineers and
inspectors as shall be required for said purposes; (iv) to pay, settle
or compromise all existing or future bills and claims which are or may
be liens against the Property or which may be necessary or desirable
for the completion of the Improvements or the clearance of title to
the Property;(v) to execute all applications and certificates in
Borrower's name which may be required by any construction contract;
and to do any and every act with respect to the construction of the
improvements which Borrower may do in its own behalf. It is
understood and agreed that this power of attorney shall be deemed to
be a power coupled with an interest which cannot be revoked by death
or otherwise. Said attorney-in-fact shall also have power to
prosecute and defend all actions or proceedings in connection with the
construction of the
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Improvements and to take such action and require such performance as
it deems necessary. In accordance therewith, Borrower hereby assigns
and quitclaims to Lender all sums to be advanced hereunder, including
retainage and any sums in escrow, conditioned upon the use of said
sums, if any, for the completion of the Improvements.
all as Lender may, from time to time, determine to be to its best advantage;
and Lender may collect and receive all the income, revenues, rents, issues and
profits of the same, including those past due as well as those accruing
thereafter, and after deducting:
(aa) All expenses of taking, holding, managing and
operating the Property (including compensation for the
services of all persons employed for such purposes);
(bb) The cost of all such maintenance, repairs,
renewals, replacements, additions, betterments, improvements,
purchases and acquisitions;
(cc) The cost of such insurance;
(dd) Such taxes, assessments and other charges prior
to the lien of the Mortgage as Lender may determine to pay;
(ee) other proper charges upon the Property or any
part thereof; and
(ff) The reasonable compensation, expenses and
disbursements of the attorneys and agents of Lender, including
attorneys, fees and costs for any appeal.
Lender shall apply the remainder of the sums received by Lender, first to the
payment of accrued interest and then to the payment of principal and all other
sums or indebtedness that may be due hereunder.
(e) Whenever all interest, principal installments and
other amounts due under the terms of the Note and Mortgage shall have been paid
and all defaults made good, Lender shall surrender possession of the Property
to Borrower, its successors or assigns. Lender's right to take possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing.
4. Receiver. If any Event of Default shall have occurred and be
continuing, Lender shall be entitled, as a matter of strict right and without
regard to the value or occupancy of the Property, to the appointment of a
receiver who will enter upon and take possession of the Property, collect the
rents and profits therefrom and apply the same as the court may direct. The
receiver shall have all the rights and powers permitted under the laws of
Florida. All costs and expenses (including receiver's fees, attorneys' fees
and costs, including attorneys' fees and costs incurred as a result of any
appeal, and agents' compensation) incurred in connection with the appointment
of a receiver shall he secured by the Mortgage. The right to enter and take
possession of the Property, to manage and operate the same and to collect the
rents, issues and profits thereof (whether by a receiver or otherwise) shall be
cumulative to any other right or remedy hereunder or afforded by law and may
be exercised by Lender concurrently therewith or independently thereof. Lender
shall be liable to account only for such rents, issues and profits actually
received by Lender whether received pursuant to this paragraph 4 or the
preceding paragraph 3 above. Notwithstanding the appointment of any receiver,
trustee or other custodian, Lender shall be entitled, as pledgee, to the
possession and control of any cash or other instruments, at the time held by or
payable or deliverable under the terms of this Loan Agreement or the Mortgage
to Lender.
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5. Lender's Power of Enforcement. If any Event of Default shall
have occurred and be continuing, whether Lender takes possession or not, Lender
may proceed by suit at law or in equity (or by any other appropriate proceeding
or remedy) to enforce payment of the Note or the performance of any term of the
Mortgage, this Loan Agreement, the Loan Documents or any other right, to
foreclose the Mortgage and to sell the Property in its entirety or in separate
parcels, under the judgment or decree of a court or courts of competent
jurisdiction and to pursue any other remedy available to it, all as Lender
shall deem most effectual. Lender may take action either by judicial
proceedings or by the exercise of its powers to take possession, as Lender may
determine.
6. Principal and Interest Become Due on Foreclosure. Upon
commencement of suit or foreclosure of the Mortgage, the unpaid principal
balance of the Note, if not previously accelerated and declared due for
Borrower's default, and the interest accrued thereon, together with all other
sums owed by Borrower to Lender that remain unpaid at the time of the
commencement of such suit or foreclosure, together with accrued interest
thereon, shall be immediately due and payable.
7. Purchase by Lender. Upon any foreclosure sale pursuant
to judicial proceedings, Lender may bid for and purchase all or any portion of
the Property and, upon compliance with the terms of sale, may hold, retain and
possess and dispose of the Property without further accountability to Borrower.
8. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Borrower agrees (to the full extent permitted by law) that
in case of a default on its part hereunder, neither Borrower nor anyone
claiming by, through or under it, shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension or redemption laws
now or hereafter in force, in order to prevent or hinder the enforcement or
foreclosure of the Mortgage or the final and absolute sale of the Property or
the final and absolute possession of the Property by the purchasers in
foreclosure, and Borrower, for itself and for all who may at any time claim
through or under it, hereby waives (to the full extent that it may lawfully do
so) the benefit of all such laws except Borrower's statutory right of
redemption for the ten (10) day period between issuance of a certificate of
sale and the issuance of a certificate of title, and any and all right to have
the assets comprising the Property marshalled upon any foreclosure and Borrower
agrees that the Property may be sold in its entirety.
9. Suits to Protect the Property. Lender shall have power: (a)
to institute and maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Property by any acts which may be unlawful or
which violate the Mortgage or this Loan Agreement; (b) to preserve or protect
Lender's interest in the Property and in the income, revenues, rents and
profits arising therefrom; and (c) to restrain the enforcement of or compliance
with any legislation or other government enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair Lender's security. All payments
made or costs or expenses incurred by Lender in connection with this paragraph,
including reasonable attorneys, fees and costs, whether or not suit is filed
and, if filed, for all appeals, shall he secured by the Mortgage and shall be
immediately repaid by Borrower to Lender on demand, with interest thereon from
the date incurred until the date repaid by Borrower at the same rate as
provided by the Note.
10. Borrower to Pay the Note an Any Default in Payment;
Application of Monies by Lender. If default shall be made in the payment of
any amount due under the Note, Mortgage, this Loan Agreement or any Loan
Documents, then after the expiration of any applicable grace period, upon
Lender's demand, Borrower will pay to Lender the whole amount due and payable
under the Note; and in case
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Borrower shall fail to pay the same upon demand, Lender shall be entitled to
xxx for and to recover judgment for the whole amount so due and unpaid together
with all costs and expenses, including compensation, costs, expenses and
disbursements of Lender's agents and attorneys, whether or not suit is filed,
and if filed, for all appeals.
Lender shall be entitled to xxx and recover judgment as aforesaid
either before, after or during the pendency of any proceeding for the
enforcement of the Mortgage, and the right of Lender to recover such judgment
shall not be affected by any taking, possession or foreclosure sale hereunder
or by the exercise of any other right, power or remedy for the enforcement of
the terms of the Mortgage or the foreclosure of the lien hereof.
In case of a foreclosure sale of all or any part of the Property and
of the application of the proceeds of sale to the payment of the debt secured
by the Mortgage, Lender shall be entitled to enforce payment of and to receive
all amounts then remaining due and unpaid upon the Note, and Lender shall be
entitled to recover judgment for any portion of the debt remaining unpaid, with
interest.
Borrower agrees, to the full extent that it may lawfully so agree,
that no recovery of any such judgment by Lender and no attachment or levy of
any execution upon any such judgment upon any of the Property or upon any other
property shall in any manner or to any extent affect the lien of the Mortgage
upon the Property or any part thereof or any lien, rights, powers or remedies
of Lender hereunder, but such lien, rights, powers and remedies shall continue
unimpaired.
Any money collected by Lender or received by Lender under this
paragraph 10 shall be applied as follows:
(a) to the payment of the compensation, expenses, costs and
disbursements of the agents and attorneys of Lender;
(b) to the payment of the amounts of accrued interest and
principal and any other amount due and unpaid under the Note; and
(c) to the payment of all other indebtedness due Lender under
any other loans secured by the Mortgage.
11. Delay Or Omission - No Waiver. No delay or omission of
Lender to exercise any right, power or remedy accruing upon any default shall
impair any such right, power or remedy or shall be a waiver of any such default
or acquiescence therein; and every right, power and remedy given by this Loan
Agreement, any Loan Document or by law to Lender may be exercised from time to
time and as often as may be deemed expedient by Lender.
12. No Waiver Of One Default To Affect Another, Etc. No waiver
of any default hereunder shall extend to or shall affect any subsequent or any
other then existing default or shall impair Lender's rights, powers or remedies
for the defaults not waived by Lender.
If Lender: (a) grants forbearance or an extension of time for the
payment of any sums secured by the Mortgage; (b) takes other or additional
security for the payment of the Note; (c) waives or does not exercise any right
granted in this Loan Agreement, the Mortgage or in the Note or any Loan
Documents; (d) releases any part of the Property from the lien of the Mortgage
or otherwise changes any of the terms of this Loan Agreement, the Note or
Mortgagee or any Loan Documents; (e) consents to the filing of any map, plat or
replat of the Land; (f) consents to the granting of any easement on the Land;
or (g) makes or consents to any agreement subordinating the lien of the
Mortgage, any such act or
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omission by Lender shall not release, discharge, modify, change or affect
Borrower's original liability under the Note, the Mortgage, this Loan
Agreement or otherwise, or the original liability of any maker, general
partner, co-signer, endorser, surety or guarantor of the Note, nor shall any
such act or omission preclude Lender from exercising any right, power or
privilege granted in this Loan Agreement or the Mortgage in the event of any
other concurrent or subsequent default, nor (except as otherwise expressly
provided in an instrument or instruments executed by Lender) shall the lien of
the Mortgage be altered thereby. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Property, Lender,
without further notice, is authorized and empowered to deal with any such
transferee as fully and to the same extent as it might deal with Borrower,
without in any way releasing or discharging any of Borrower's liabilities or
obligations hereunder.
13. Discontinuance of Proceedings - Position of Parties Restored.
In case Lender shall have proceeded to enforce any right or remedy under the
Mortgage by foreclosure, entry or otherwise and such proceedings shall have
been discontinued or abandoned for any reason, then and in every such case,
Borrower and Lender shall be restored to their former positions and rights
hereunder and all rights, powers and remedies of Lender shall continue as if no
such proceeding occurred.
14. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Lender by this Loan Agreement is intended to be exclusive
of any other right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
ARTICLE IX
MISCELLANEOUS
In the event of a conflict with other provisions of this Loan
Agreement, the provisions of this Article shall control.
1. Binding Terms. All of the obligations, covenants, terms and
conditions hereof shall be binding obligations, covenants, terms and conditions
throughout the term of this loan.
2. Bank Accounts. Borrower shall open and maintain during the
entire term of this Loan all of its accounts with respect to the Project at
Xxxxxxx Bank of South Florida, N.A, including, without limitation, its
operating account with respect to the Project and the construction fund
account.
3. Monthly Reports. Borrower shall submit monthly reports to
Lender indicating the sales status of the Project along with a copy of all
executed sales contracts.
4. Certificate Re: Application of Proceeds and Remaining Costs.
Bills or statements for all expenses for which a disbursement is requested
shall, at Lender's option, be presented to Lender along with both a
certification from Borrower, Architect, and Contractor that all labor and
materials for which funds are requested have gone into the Project according to
the approved Plans and Specifications, and a certification from all of said
parties setting forth the estimated remaining cost of construction to complete
the Project.
5. Payment of Construction Costs. Lender shall be under no
duty or obligation to anyone to ascertain whether Borrower has used or will use
the Loan proceeds for the payment of bills incurred by Borrower in connection
with the construction of the Improvements. Payment of all bills for labor and
materials in
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connection with the construction of the improvements shall be Borrower's
responsibility, and Lender's sole obligation shall be to advance the proceeds
of the Loan subject to, and in accordance with this Loan Agreement.
6. Recommendation By Lender's Inspector. At, no time shall
Lender be obligated to disburse funds in excess of that recommended by Lender's
Inspector.
7. Notices To All Parties. All notices, statements, requests
and demands given to or made upon any party hereto in accordance with the
provisions of this Loan Agreement shall be deemed to have been given or made
when hand delivered or when deposited in the Certified Mails of the United
States, Return Receipt Requested, postage prepaid, addressed to such party at
the address or addresses hereinabove stated following the names of the
respective parties, or to a different address in accordance with any unrevoked
written direction from such party to the other parties hereto, except in cases
where it is expressly provided herein that such notice, request or demand shall
not be effective until received by the party to whom it is intended.
8. No Partnership Or Joint Venture. Nothing herein contained nor
the acts of the parties hereto shall be construed to create a partnership or
joint venture between Borrower and Lender, and the parties hereby acknowledge
that no such relationship exists between them.
9. No Assignment By Borrower. This Agreement may not be assigned
by Borrower without the prior written consent of Lender. If Lender approves an
assignment hereof by Borrower, Lender shall be entitled to make advances to
such assignee and such advances shall be evidenced by the Note and secured by
the Mortgage and related Loan Documents. Borrower shall remain liable for
payment of all sums advanced hereunder before and after such assignment and all
Guarantors shall remain liable under their respective guaranties.
10. Usury. It is the intention of the parties to comply with all
applicable usury laws. Accordingly, it is agreed that notwithstanding any
provision to the contrary in the Loan Documents, in no event shall the Loan
Documents require the payment or permit the collection of interest in excess of
the maximum amount permitted by such laws. If any such excess of interest is
contracted for, charged or received under the Loan Documents, or in the event
the maturity of the indebtedness evidenced by such Loan Documents is
accelerated in whole or in part, so that under any such circumstance, the
amount of interest contracted for, charged or received shall exceed the maximum
amount of interest permitted by the applicable usury laws, then in any such
event (a) the provisions of this paragraph shall govern or control, (b) neither
Borrower nor any other person or entity now or hereafter liable for repayment
of the Loan shall be obligated to pay the amount of such interest not permitted
by the applicable usury laws, (c) any such excess which may have been collected
shall be refunded to Borrower and (d) the effective rate of interest for the
Note shall be automatically reduced to the maximum lawful rate allowed under
applicable usury laws.
11. Time. Time is of the essence of this loan Agreement.
12. Waiver. No waiver of any term, provision, condition, covenant
or agreement herein contained shall be effective unless set forth in a writing
signed by Lender, and any such waiver shall be effective only to the extent set
forth in such writing. No failure by Lender to exercise, or no delay by Lender
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or
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further exercise thereof, or the exercise of any right or remedy provided by
law. No notice to or demand on Borrower in any case shall, in itself, entitle
Borrower to any other or further action in any circumstance without notice or
demand.
13. Conflict. The provisions of this Loan Agreement shall control
in the event of any conflict among it, the Commitment, the Note, the Mortgage
and any other Loan Document.
14. Additional Financing. The Lender's obligation to fund this
Loan is limited to the principal amount set forth in the Note herein and the
Lender is not obligated to fund any additional amounts other than as set forth
in the Note herein. It is expressly understood that Borrower has sought and
agreed to the terms for repayment set forth in the Note and it is the burden of
the Borrower to provide any permanent financing, bridge financing, or other
financing which may be necessary to repay this Loan on or prior to the Maturity
date. It is expressly understood that it is not the responsibility of the
Lender to provide to Borrower further financing of the Project or the
repayment of this Loan.
15. Right of First Offer. Lender shall have an absolute a right of
first offer to finance the acquisition, development, and construction with
respect to an additional 56 lots current under option by Borrower pursuant to
that Option Agreement dated September 26, 1995 by and between Borrower and WCI
Communities Limited Partnership. However, under no circumstances shall Lender
be obligated to provide such construction financing.
16. Guarantor's Minimum Tangible Net Worth. Throughout the term of
the Loan, Guarantor shall maintain a minimum tangible net worth, calculated in
accordance with generally-accepted accounting principles of not less than Ten
Million and 00/100 Dollars ($10,000,000.00) and a maximum debt to tangible net
worth ratio of 5.5 to 1.
17. Borrower's Minimum Tangible Net Worth. Throughout the term of
the Loan, Borrower shall maintain a minimum tangible net worth, calculated in
accordance with generally-accented accounting principles of not less than One
Million and 00/100 Dollars ($1,000,000.00) plus fifty percent (50%) of future
net, after tax, income.
18. Employment. Throughout the term of the Loan Borrower
shall not change the involvement and responsibility of Xxxxx Xxxxx with respect
to the Project without the approval of Lender.
19. Homeowner's Documents. Lender and Lender's counsel must
approve all proposed master association and homeowners' association
documentation with respect to Lender being obligated to fund the Project prior
to any advances under Note II.
20. Letter Of Credit. In connection with Loan, after closing
Lender agrees to issue a standby letter of credit (the "LC") or letters of
credit in the aggregate amount not to exceed One Hundred Fifty Thousand and
00/100 Dollars ($150,000.00) for the benefit of Borrower with respect to
subdivision improvements associated with the Project, provided Borrower
executes Lender's standard letter of credit documentation in connection with the
issuance of each LC and Borrower pays to Lender a letter of credit fee with
respect to each LC in the amount of greater of one percent (1%) of the amount
of such LC, or (ii) Three Hundred Fifty Dollars ($350.00). One Hundred Fifty
Thousand and 00/100 Dollars ($150,000.00) under Note I shall be reserved to
fund Borrower's obligations with respect to any advances under the LC.
21. Joinder. Within a reasonable period of time after receipt of
written request by the Borrower (in no event to exceed twenty (20) days from
the date of request), the Lender agrees to
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join in and/or consent ("Joinder") to such documents as may be reasonably
required (a) in order to obtain governmental approvals affecting the Property
which are necessary to complete construction of the Improvements; (b) for the
recording of the homeowner's documents, provided same is in form and content
satisfactory to Lender; and (c) for the dedication of and/or granting of
easements for utilities and drainage as may be necessary in connection with the
development of the Property, provided that the location and terms of such
easements are acceptable to Lender.
ARTICLE X
GENERAL CONDITIONS
The following conditions shall apply throughout the term of this Loan
Agreement:
1. Rights Of Third Parties. All conditions of Lender's
obligations hereunder, including the obligation to make advances, are imposed
solely and exclusively for the benefit of Lender, its successors and assigns,
and no other person other than the Borrower, shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled
to assume that Lender will refuse to make advances in the absence of strict
compliance with any or all thereof, and no other person, other than the
Borrower, under any circumstance, shall be deemed to be a beneficiary of such
conditions, any and all of which Lender freely may waive in whole or in part at
any time if, in its sole discretion, it deems it desirable to do so. In
particular, Lender makes no representation and assumes no obligation as to
third parties concerning the quality of the construction of the Improvements by
Borrower or the absence therefrom of defects. In this connection, Borrower
agrees to and shall indemnify Lender from any liability, claim or loss and
attorneys' fees and costs resulting from the disbursement of the Loan proceeds
or from the condition of the Property, whether related to the quality of
construction or otherwise and whether arising during or after the term of the
Loan. This provision shall survive the repayment of the Loan and shall
continue in full force and effect so long as the possibility of such liability,
claim or loss exists. Notwithstanding anything to the contrary contained in
this Loan Agreement, Lender shall not settle or compromise any lawsuit brought
by a third party relating to the matters set forth in this paragraph without
the express consent of Borrower, which consent shall be in Borrower's
discretion.
2. Evidence Of Satisfaction Of Conditions. Any condition of
this Loan Agreement which requires the submission of evidence of the existence
or nonexistence of a specified fact or facts, implies as a condition the
existence or nonexistence, as the case may be, of such fact or facts, and
Lender shall, at all times, be free to establish independently and to its
reasonable satisfaction and in its absolute discretion such existence or
nonexistence.
3. Assignment. Lender shall have the unconditional right to
assign all or any part of its interest hereunder to any third party, but
Borrower may not assign this Loan Agreement or any of its rights or obligations
hereunder without Lender's prior written consent.
4. Successors And Assigns Included In Parties. Whenever in
this Loan Agreement one of the parties hereto is named or referred to, the
heirs, legal representatives, successors and permitted assigns of such party
shall be included, and all covenants and agreements contained in this Loan
Agreement by or on behalf of Borrower or by or on behalf of Lender shall bind
and inure to the benefit of their respective heirs, legal representatives,
successors and permitted assigns, whether so expressed or not.
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5. HEADINGS. The headings of the sections, paragraphs and
subdivisions of this Loan Agreement are for the convenience of reference only,
are not to be considered a part hereof and shall not limit or otherwise affect
any of the terms hereof.
6. INVALID PROVISIONS TO AFFECT NO OTHERS. If fulfillment of
any provision hereof or any transaction related hereto at the time performance
of such provision shall be due, shall involve transcending the limit of
validity prescribed by law, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or provision
herein contained operates or would prospectively operate to invalidate this
Loan Agreement in whole or in part, then only such clause or provision shall be
held for naught as though not herein contained, and the remainder of this Loan
Agreement shall remain operative and in full force and effect.
7. NUMBER AND GENDER. Whenever the singular or plural number,
masculine or feminine, or neuter gender is used herein, it shall equally
include the other.
8. AMENDMENTS. Neither this Loan Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by
written instrument signed by the party against whom enforcement of the change,
waiver, discharge or termination is sought.
9. GOVERNING LAW. This Loan Agreement shall be governed in its
enforcement, construction and interpretation by the laws of the State of
Florida.
10. LITIGATION. In the event any legal proceedings are instituted
between the parties concerning this Loan Agreement, the Note, the Mortgage, or
any other Loan Documents, and the Lender is the prevailing party, the Lender
shall be entitled to recover its costs of suit, including reasonable attorneys'
fees, at both trial and appellate levels.
11. PREPAYMENT OF NOTE. Notwithstanding anything contained
herein to the contrary, in the event Borrower shall prepay to Lender all
principal, accrued interest and any costs and expenses, including any
reasonable attorneys' fees and costs incurred by Lender to the date of said
prepayment, Lender shall upon receipt of said prepayment provide Borrower with
a satisfaction of the Mortgage and any other recorded Loan Documents
simultaneously therewith and the Note marked cancelled shall be forwarded to
Borrower within thirty (30) days thereof.
12. WAIVER OF TRIAL BY JURY. BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS LOAN AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THIS LOAN.
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement
on the dates specified below.
WITNESSES: BORROWER:
THE XXXXX COMPANIES, INC., a Florida
corporation (SEAL)
/s/ XXXXX XXXXXX
----------------------------- BY: /s/ XXXX XXXXXX
/s/ X. X. XXXXX -----------------------------------
----------------------------- Xxxx Xxxxxx, Vice President
Dated: December 14, 1995
LENDER:
XXXXXXX BANK OF SOUTH FLORIDA N.A.
(SEAL)
/s/ XXXXX XXXXXX
----------------------------- By: /s/ XXXX XXXXXX
X. X. XXXXX -----------------------------------
----------------------------- Xxxx Xxxxxx,
Vice President
Dated: December 14, 0000
XXXXX XX XXXXXXX )
: SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 15 day of
December, 1995, by Xxxx Xxxxxx, Vice President of The Xxxxx Companies, Inc., a
Florida corporation, on behalf of the corporation. He is personally known or
has produced FLORIDA DRIVERS LICENSE as identification.
-------------------------
/s/ XXXXX XXXXXX
-----------------------------------
Notary Public
Name of Notary Printed:
-----------------------------------
My commission expires: (NOTARY SEAL)
My commission number is:
[NOTARY SEAL]
STATE OF FLORIDA )
: SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day _____ of
December, 1995, by Xxxx Xxxxxx, Vice President of Xxxxxxx Bank of South
Florida, N.A., on behalf of the association. He is personally known to me or
has produced N/A as identification.
---------
/s/ XXXXX XXXXXX
-----------------------------------
Notary Public
Name of Notary Printed:
My commission expires: -----------------------------------
(NOTARY SEAL)
[NOTARY SEAL]
My commission number is:
MIA3-345609.2
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