EXHIBIT 10.146
CONSTRUCTION LOAN AGREEMENT
THIS AGREEMENT, made and entered into as of the 8th day of April, 2002, by
and between BLUEGREEN VACATIONS UNLIMITED, INC., a Florida corporation
("Borrower"), whose address is 0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000, Xxxx Xxxxx,
XX 00000, and MM&S INVESTMENTS CORPORATION, a Minnesota corporation, doing
business in Florida as XXXXXXXX XXXXXX & XXXXXXXXX INVESTMENTS CORPORATION
("Lender"), whose address is Suite 3000, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000.
PRELIMINARY RECITALS:
A. Borrower is the owner of all of those "Condominium Units" all as more
fully described in Exhibit E hereafter and located in the Solara Surfside
Condominium in the City of Surfside, County of Miami-Dade, State of Florida all
as more fully described in and created pursuant to the Declaration of
Condominium For Bethel Beach Club Resort & Spa, A Phase Condominium recorded in
Official Records of Miami-Dade County, Florida in Book 18155, Page 4177 et seq.
as amended by First Amendment to Declaration of Condominium For Bethel Beach
Club Resort & Spa, A Phase Condominium, recorded in Official Records of
Miami-Dade County, Florida as Document No. 02R167439 and Second Amendment to
Declaration of Condominium For Solara Surfside Condominium (fka Bethel Beach
Club Resort & Spa, a Phase Condominium) recorded in Official Records of
Miami-Dade County, Florida as Document No. 02R192554 and which constitutes a
"condominium" under the Florida Condominium Acts, Chapter 718 of the Florida
Statutes and in which Condominium the Borrower has created a timeshare plan
creating timeshare estates in the Condominium Units as defined in and pursuant
to the Florida Vacation Plan and Timeshare Acts, Chapter 721 of the Florida
Statutes.
B. The Borrower has developed a plan for the sale of the "Timeshare
Estates" and in furtherance thereof is renovating the Condominium.
C. In order to finance the renovation the Borrower has made application to
and the Lender has agreed to loan to the Borrower the sum of up to Nine Million
Seven Hundred Fifty Thousand and no/100 Dollars ($9,750,000.00) and in
furtherance thereof, Borrower and Lender are entering into this Construction
Loan Agreement.
D. This Agreement is entered into for the purpose of setting forth the
terms and conditions under which Lender will make the loan to Borrower.
NOW, THEREFORE, in consideration of the making of the Loan and other good
and valuable consideration, the receipt of which is hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
1.
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
"Account Depository" shall mean the Borrower, Resort Title Agency, Inc.,
Boca Raton, Florida or other title insurance company or depository agent
selected by the Assignor and which is an authorized depository agent under
the Acts.
"Acts" shall mean the Condominium Act and Timeshare Act, collectively or
singularly as the context requires.
"Advance" shall mean any advance of loan funds by Lender.
"Affiliate" shall mean, with respect to any Person, (i) any Person
directly or indirectly controlling, controlled by, or under common control
with such Person, (ii) any Person owning or controlling ten percent (10%)
or more of the outstanding voting interests of such Person, (iii) any
officer, director, or general partner of such Person, or (iv) any Person
who is an officer, director, general partner, trustee, or holder of ten
percent (10%) or more of the voting interest of any Person described in
clauses (i) through (iii) of this sentence. For purposes of this
definition, the term "controls," "is controlled by," or "is under common
control with" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a
person or entity, whether through the ownership of voting securities, by
contract or otherwise.
"Aggregated Units" shall mean those Condominium Units identified and shown
on Exhibit "2" of the Declaration.
"Application for Payment" shall mean a written application in form and
substance satisfactory to Lender requesting an advance of Loan Funds
together with a certificate signed by the Borrower and Contractor
certifying as to the Improvements completed at the time; that each
contractor or materialman specified in the Application for Payment has
satisfactorily completed the work or furnished the materials for which
payment is requested in accordance with the applicable contract; that all
work for which a Application for Payment is made conforms to the Contract
Documents and any approved changes, and is in place; and that sufficient
funds remain of the undisbursed loan amounts to complete the Project and
that all funds previously disbursed have been applied as per the previous
Applications for Payment.
"Appraisal" shall mean the appraisal prepared by Dabby Group Valuations
dated November 1, 2001.
"Appraised Value" shall mean the value arrived at under the Appraisal to
wit: a current or "As Is" value of $7,600,000.00 and an "Upon Completion
of Renovations" value of $13,000,000.00.
-2-
"Approvals" shall mean those approvals required of the Project, the Plans
and Specifications and all other Governmental Requirements by Governmental
Authorities as a condition to constructing the Project.
"Approved Plans" shall mean the Plans and Specifications as approved by
the City and its agencies.
"Architect" shall mean Xxxxxx X. Xxxxxxx, A.I.A., P.A.
"Architectural Contract" shall mean the Standard Form of Agreement Between
Owner and Architect dated June 29, 2001 for the furnishing of design and
architectural services to the Borrower in connection with the construction
of the Improvements.
"Assignment of Contract Documents" shall mean an assignment and pledge by
the Borrower to the Lender of all Contract Documents, any permits and
other documents and intangibles benefiting the Project.
"Assignment of Rents and Lease(s)" shall mean the assignment executed by
the Borrower, as assignor, to the Lender, as assignee, assigning to the
Lender the rents, income and leases of the Premises.
"Association" shall mean Solara Surfside Condominium Association, Inc., a
Florida corporation not for profit, the entity responsible for the
operation of the Condominium.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978 as
heretofore and hereafter amended, and codified as 11 U.S.C. ss.101 et seq.
"Basis Points" shall mean an arithmetic expression of a percentage
measured in hundredths of a percent (i.e. 50 Basis Points equals one half
of one percent).
"Borrower" shall mean Bluegreen Vacations Unlimited, Inc., a Florida
corporation.
"Broker" shall mean any person or entity who for a fee or commission has
been engaged by the Borrower to obtain financing for the Project or to
procure leases for the Project.
"Budget" shall mean the budget prepared by Borrower attached as Exhibit
"A" itemizing and setting forth the estimated cost of constructing and
financing the Improvements and all Project Costs.
"Business Day" shall mean any day that national banks are open for
business in Minneapolis, Minnesota.
"Change Order" shall mean a change order from the Borrower to the
Contractor changing the Work.
"City" shall mean the City of Surfside, Florida.
-3-
"Collateral" shall mean all of the security given for the payment of the
Loan as described in the Loan Documents.
"Common Elements" shall mean the portions of the Condominium Property that
are not included in the Units. Common Elements shall include the tangible
personal property required for maintenance and operation of the
Condominium even though owned by the Association.
"Common Expenses" shall mean those expenses properly incurred for the
maintenance, operation and repair of the accommodations or facilities, or
both, constituting the Timeshare Plan and any other expenses designated as
Common Expenses in a timeshare instrument.
"Completion Date" shall mean the date on which Final Completion occurs
which date shall not be later than November 1, 2002.
"Condominium" shall mean the Solara Surfside Condominium, a condominium
formed pursuant to the Condominium Act.
"Condominium Act" shall mean the Florida Condominium Act, Chapter 718
Florida Statutes.
"Condominium Documents" shall mean those documents required under the Act
and to create the Condominium including (i) the Declaration or any other
document which creates the Condominium; (ii) articles and by-laws of the
Condominium Association created pursuant to the Declaration; (iii) code of
regulations; and (iv) other equivalent documents.
"Condominium Parcel" or "Parcel" shall mean a Unit, together with the
undivided share in the Common Elements which are appurtenant to the Unit.
"Condominium Property" shall mean the land in the Condominium, whether or
not contiguous, and all improvements thereon, and all easements and rights
appurtenant thereto, intended for use in connection with the Condominium.
"Condominium Unit" or "Unit" shall mean a unit as defined in the
Condominium Act and refers to each of the separate and identified units
delineated on the survey attached to the Declaration as Exhibit "3", and
when the context permits means each of the Condominium Parcels including
such Units and the undivided shares of the Common Elements appurtenant
thereto.
"Construction Contracts" shall mean the General Contract, the FF&E
Contract, Architect's Contract, Subcontracts and any other contracts
entered into for the construction and equipping of the Project.
-4-
"Construction Escrow Account" shall mean the account to be established
with Title, as disbursing agent, wherein Title will hold all Loan Funds
and Owner Equity received and make disbursements therefrom.
"Contract Documents" shall mean the Construction Contract(s), the Plans
and Specifications, the Project Manual and such Change Orders and other
addenda thereto.
"Contract Price" shall mean the sum of $4,307,967.00 the price as
established in the General Contract as the Cost of the Work including
Contractor's Fee.
"Contractor" shall mean the General Contractor, the FF&E Contractor, any
Subcontractor, and any other person or entity providing services,
materials or work to the Project.
"Contractor's Fee" shall mean the fee payable to the General Contractor
under the General Contract for the construction of the Work.
"Declaration" shall mean the Declaration of Condominium For Bethel Beach
Club Resort & Spa, A Phase Condominium recorded in Official Records of
Miami-Dade County, Florida in Book 18155, Page 4177 et seq. as amended by
First Amendment to Declaration of Condominium For Bethel Beach Club Resort
& Spa, A Phase Condominium, recorded in Official Records of Miami-Dade
County, Florida as Document No. 02R167439 and Second Amendment to
Declaration of Condominium For Solara Surfside Condominium (fka Bethel
Beach Club Resort & Spa, a Phase Condominium) recorded in Official Records
of Miami-Dade County, Florida as Document No. 02R192554.
"Department" shall mean the Florida Department of Business and
Professional Regulation.
"Deposit" shall mean all deposits, down payments, escrows and xxxxxxx
money, together with interest accrued thereon and Purchase Price paid
pursuant to a Purchase Agreement.
"Direct Costs" shall mean those Project Costs identified in the Budget as
"Direct Costs".
"Disbursing Agent" shall mean the entity with whom the Borrower and Lender
have contracted to coordinate and supervise disbursements of Loan Funds.
The Disbursing Agent shall be the Title Company.
"Disbursing Agreement" shall mean the Agreement entered into among the
Borrower, Lender and Title governing the disbursement of Loan Funds.
"Environmental Audit" shall mean a Phase I Environmental Site Assessment
prepared by Duquesne & Associates, Inc. dated February 20, 2002.
"Environmental Indemnity" shall mean an agreement executed by the Borrower
and any Guarantor indemnifying and holding the Lender harmless from any
Hazardous Substances and the violation of any Environmental Laws.
-5-
"Environmental Laws" shall mean any international, federal, state or local
statute, law, regulation, order, consent, decree, judgment, permit,
license, code, covenant, deed restriction, common law, treaty, convention,
ordinance or other requirement relating to public health, safety or the
environment, including, without limitation, those relating to releases,
discharges or emissions to air, water, land or groundwater, to the
withdrawal or use of groundwater, to the use and handling of
polychlorinated biphenyls or asbestos, to the disposal, treatment, storage
or management of hazardous or solid waste, or Hazardous Substances or
crude oil, or any fraction thereof, or to exposure to toxic or hazardous
materials to the handling, transportation, discharge or release of gaseous
or liquid Hazardous Substances and any regulation, order, notice or demand
issued pursuant to such law, statute or ordinance, including without
limitation the following: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984, the Hazardous Materials
Transportation Act, as amended, the Federal Water Pollution Control Act,
as amended by the Clean Water Act of 1976, the Safe Drinking Water Act,
the Clean Air Act, as amended, the Toxic Substances Control Act of 1976,
the Occupational Safety and Health Act of 1977, as amended, the Emergency
Planning and Community Right-to-Know Act of 1986, the National
Environmental Policy Act of 1975, the Oil Pollution Act of 1990, and any
similar or implementing state law, and any state statute and any further
amendments to these laws providing for financial responsibility for
cleanup or other actions with respect to the release or threatened release
of Hazardous Substances or crude oil, or any fraction thereof and all
rules and regulations promulgated thereunder.
"Equivalent Acts" shall mean those laws and regulations in jurisdictions
outside of Florida governing the sale of the Timeshare Estates.
"Event of Default" shall mean any of those events specified as an event of
default herein.
"Existing Notice of Commencement" shall mean any existing Notice of
Commencement filed pursuant to Chapter 713 of the Florida Statutes and not
terminated by a Notice of Termination.
"Existing Work" shall mean any work done on the Project prior to the
filing of the Notice of Commencement including any work done under any
Existing Notice of Commencement.
"FF&E" shall mean the furniture, furnishings and utensils to be installed
in each Unit.
"FF&E Advances" shall mean those advances of Loan Funds to pay for FF&E
Costs incurred.
"FF&E Budget" shall mean the budget attached as Exhibit "B" itemizing the
FF&E to be purchased and installed and its cost.
-6-
"FF&E Contract" shall mean the Purchasing Agreement dated November 16,
2001, between Bluegreen Interiors, LLC assigned to Borrower, as owner, and
the FF&E Contractor to supply the FF&E.
"FF&E Contractor" shall mean Interiors Purchasing Group, Inc. as FF&E
supplier under the FF&E Contract.
"FF&E Costs" shall mean those Project Costs which are incurred directly by
the Borrower in acquiring the FF&E and installing and equipping the
Project with the same.
"FF&E Disbursements" shall mean the from time to time disbursements by
Lender to Borrower of FF&E Advances.
"Final Completion" shall mean that stage of completion where all of the
following has occurred:
1. Substantial Completion has previously occurred.
2. All Work pursuant to the Contract Documents has been fully
completed in full compliance with the Contract Documents and
all applicable laws, codes, ordinances, rules and regulations
in effect at the Permit Date, or as revised pursuant to a
Change Order.
3. General Contractor has delivered to Borrower all warranties,
manuals, inspection reports and bonds as may be required by
the Contract Documents.
4. Final inspection and approval by all applicable Governmental
Authorities has occurred and a Certificate of Occupancy has
been issued covering the entire Project without exception or
conditions, except for Punch List Items.
5. Final Documentation has been delivered.
"Final Documentation" shall mean the delivery to the Borrower (with copies
to Lender) of the following and approval by the Borrower (and if required
by the Lender):
1. General Contractor's Final Statement of Cost.
2. Final Lien Waiver from the General Contractor and all
Suppliers and Subcontractors, or if any Supplier or
Subcontractor refuses to furnish a Final Lien Release, a bond
satisfactory to Borrower, Lender and Title Company
indemnifying against any such Lien.
3. General Contractor's affidavit that all payrolls, bills for
materials and equipment, and other indebtedness connected with
the Work for which Borrower may be responsible have been paid
or otherwise satisfied.
-7-
4. All bonds, warranties and guarantees required by the Contract
Documents.
"Final Payment" shall mean the final payment of all sums due the General
Contractor under the General Contract or in the case of a Supplier or
Subcontractor the final payment of all sums due under the respective
Suppliers contract or Subcontract, as the case may be.
"Final Lien Waiver" shall mean a Lien Waiver fully waiving and
extinguishing the right to assert a Lien against the Premises.
"Financial Institution" shall mean a banking institution under the
supervision of the United States Comptroller of the Currency or the
Banking Commissioner of the State of Florida having a combined capital and
surplus of at least $100,000,000.00 and a Standard & Poors rating of AA.
"Financing Statements" shall mean one or more financing statements naming
the Borrower as Debtor under the provisions of the Uniform Commercial Code
to Lender perfecting a security interest in the Personalty, Equipment and
Fixtures included in the Premises, the Contract Documents and all
intangibles.
"First Advance" shall mean the initial Advance of Loan funds.
"Fixture" shall mean those goods and equipment incorporated into the
Premises and which constitute "fixtures" under applicable law.
"Force Majeure" shall mean to the extent that the time for performance of
Work shall be delayed by acts of God, fire, windstorm, flood, explosion,
collapse of structures, riot, war, labor disputes, delays or restrictions
by Governmental Authorities, inability to obtain or use necessary
materials, or any cause beyond the reasonable control of the party charged
with the responsibility for the performance of the Work.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time.
"General Contract" shall mean the Standard Form of Agreement Between Owner
and General Contractor dated April 8, 2002 for the furnishing of labor,
services and materials to the Premises in connection with the construction
of the Improvements.
"General Contractor" shall mean WELBRO Constructors, Inc. the entity
directly engaged by Borrower to construct the Improvements.
"Governmental Authority" shall mean any governmental body or regulatory
authority exercising jurisdiction over the Premises or the construction of
the Project, including any department or subdivision of the City, the
Florida Department of Business and Professional Regulation and the
Division of Florida Land Sales, Condominiums and Mobile Homes.
-8-
"Governmental Requirements" shall mean all wetlands
restrictions/regulations, laws, statutes, codes, ordinances, rules,
regulations and Historical Requirements adopted or enacted by a
Governmental Authority applicable to the Project, its construction and its
use and occupancy as well as the Condominium Act and the Timeshare Act.
"Guarantor" shall mean Bluegreen Corporation, a Massachusetts corporation.
"Guaranty" shall mean the Guaranty executed and delivered by the
Guarantor.
"Hazardous Substance" shall mean any hazardous or toxic material,
substance or waste, pollutant or contaminant which is defined, prohibited,
limited or regulated under any statute, law, ordinance, rule or regulation
of any local, state, regional or Federal authority having jurisdiction
over the property of the Borrower, or its use, including but not limited
to any material, substance or waste which is (a) defined, listed or
otherwise classified as a hazardous substance, hazardous material,
hazardous waste or other words of similar meaning under any Environmental
Laws; (b) petroleum, petroleum hydrocarbons, and all petroleum products;
(c) polychlorinated biphenols; (d) lead; (e) urea formaldehyde; (f)
asbestos and asbestos containing materials; (g) flammables and explosives;
(h) infectious materials; (i) atmospheric radon at levels over 4
picocuries per cubic liter, (j) radio active materials; or (k) defined,
prohibited, limited or regulated as a hazardous substance or hazardous
waste under any rules or regulations promulgated under any of the
foregoing Environmental Laws.
"Improvements" shall mean Renovation of the Condominium consisting of a
seven-story, 62 Unit, oceanfront condominium apartment building of which
58.1 equivalent Units are owned by the Borrower consisting of 104,663
gross square feet of which 24,436 square feet are on the garage level,
7,375 square feet are on the lobby level and 72,852 square feet are on the
second through seventh residential levels. The partial basement garage has
room for 46 spaces plus there are eight covered and eight open spaces on
the lobby level and with 124 feet of direct ocean frontage, located at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx-Xxxx Xxxxxx, Xxxxxxx.
"Indirect Costs" shall mean those Project Costs identified in the Budget
as "Indirect Costs".
"Inspecting Architect" shall mean the architect retained by Lender to
inspect the Work and review all Applications for Payment.
"Institutional Lender' shall mean a bank, savings and loan association,
insurance company or pension fund authorized to do business in the United
States of America, any agency of the United states Government, a real
estate or mortgage investment trust or a lender generally recognized in
the community as an institutional type lender, or any assignee of a
mortgage held by an Institutional Lender.
"Insurance Policies" shall mean those policies of insurance identified in
Article 3 hereof.
"Interest Rate" shall mean the interest rate charged on the Loan from time
to time as set forth in Section 2.1 hereof.
-9-
"Labor" shall mean the furnishing of any work or labor to the construction
of the Project.
"Lease(s)" shall mean a written instrument granting to a tenant the right
to possession of the Premises for a term of years.
"Lien" shall mean any lien that may be imposed by law or by contract
against the Premises for the payment of labor, materials, or services
rendered by a person or entity in connection with the Work.
"Lien Waiver" shall mean a waiver of lien in format and content sufficient
under Florida law to waive and relinquish any right to assert a Lien
against the Premises.
"Limited Common Elements" shall mean and include those Common Elements
which are reserved for the use of a certain Condominium Unit or Units, to
the exclusion of other Units, as specified by the Declaration.
"Line Item" shall mean those individual Project Costs items as itemized by
line in the Sworn Construction Statement and Budget.
"Loan" shall mean the loan to be made pursuant to Article 2 of this
Agreement in an amount equal to $9,750,000.00
"Loan Documents" shall mean this Agreement and the following:
(i) Note
(ii) Mortgage
(iii) Financing Statement(s)
(iv) Guaranty
(v) Assignment of Contract Documents and Intangibles
(vi) Assignment of Rents and Lease(s)
(vii) Assignment of Purchase Contracts and Sales Proceeds
(viii) Environmental Indemnity
(ix) Disbursing Agreement
and such other documents as Lender may require to evidence and secure the
Loan.
"Loan Fee" shall mean a fee of $195,000.00 payable by Borrower to Lender
for making the Loan.
"Loan Funds" shall mean the sums of money disbursed under this Agreement.
"Loan Release Schedule" shall mean the Schedule attached as Exhibit "C"
which sets forth the pro forma scheduled Timeshare Sales.
"Loan Year" shall mean a consecutive twelve month year beginning on April
1 and ending on March 31.
"Major Contract(s)" shall mean all Contracts written in excess of
$10,000.00.
-10-
"Management Agreement" shall mean and refer any management agreement
entered into between the Association and a third party manager which
provides for the management of the Condominium Property.
"Manager" shall mean any manager under a Management Agreement.
"Master Purchasing Agent" shall mean Bluegreen Interiors, LLC.
"Master Purchasing Agreement" shall mean the agreement between the
Borrower and Master Purchasing Agent dated March 27, 2002 wherein the
Master Purchasing Agent, as "owner" under the Purchasing Agreement serves
as the acquisition and reselling agent for the Borrower with respect to
the FF&E and furniture and furnishing services to be sold to the Master
Purchasing Agent by the FF&E Contractor under the FF&E Contract.
"Materials" shall mean all equipment, materials and goods furnished to the
Premises and to be included in the Work.
"Maturity Date" shall mean April 1, 2004.
"Minor Changes" shall mean Change Orders that do not (a) change the Scope
of the Work, (b) change the Contract Price together with all other
previous changes by more than one percent (1%), or (c) change any
individual Line Item together with all previous changes by five percent
(5%), or (d) require approval by a Governmental Authority.
"Mortgage" shall mean the Mortgage and Security Agreement and Fixture
Financing Statement given by the Borrower creating a lien on and security
interest in the Premises.
"Note" shall mean the Promissory Note of the Borrower payable to the
Lender in the amount of the Loan.
"Notice of Commencement" shall have the meaning as set forth in Florida
Statutes ss.713.13.
"Notice of Termination" shall have the meaning as set forth in Florida
Statutes ss.713.132.
"Notice to Owner" shall have the meaning as set forth in Florida Statutes
ss.713.06.
"Occupant" shall mean the person or persons, other than the Unit Owner, in
possession of a Unit.
"Off Site Improvements" shall mean those improvements off the Premises
required by any Governmental Authority to be completed by the Borrower as
a condition to its Approval of the Project.
"Organizational Documents" shall mean the following:
As to Guarantor:
-11-
Articles of Incorporation
By-Laws
Incumbency Certificates in respect of the officers and directors,
Resolutions of the Board of Directors and, if necessary, the
shareholders authorizing the transactions contemplated by this
Agreement, Certificate of Good Standing from Secretary of State of
Massachusetts.
As to Borrower:
Articles of Incorporation
By-Laws
Incumbency Certificates in respect of the officers and directors,
Resolutions of the Board of Directors and, if necessary, the
shareholders authorizing the transactions contemplated by this
Agreement, Certificate of Good Standing from Secretary of State of
Florida.
"Owner Equity" shall mean the total Project Costs, less the amount of the
Loan.
"Partial Lien Waiver" shall mean a Lien Waiver fully waiving and
extinguishing the right to assert a Lien for any and all Work done to the
Project through the date of the Lien Waiver.
"Partial Release" shall mean a partial release suitable for recording in
the State of Florida which releases the lien of the Mortgage as to a
Timeshare Estate that is being sold pursuant to a Timeshare Sale but which
retains the lien of the Mortgage on all other Units/Timeshare Estates
mortgaged under the Mortgage.
"Permits" shall mean all permits required by Governmental Authorities for
the construction of the Improvements in accordance with the Plans and
Specifications including any required building permits.
"Permitted Exceptions" shall mean the exceptions to insured coverage set
forth in Schedule B to the Title Policy.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, institution public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or
department thereof).
"Personalty" shall mean all personal property, fixtures, fittings and
furnishings, owned by Borrower and now or hereafter attached to, located
at, or placed in the improvements on the Premises including, without
limitation i) all machinery, fittings, fixtures, apparatus, equipment or
articles used to supply heating, gas, electricity, air conditioning,
water, light, waste disposal, power, refrigeration, ventilation, and fire
and sprinkler protection, ii) all maintenance supplies and repair
equipment, iii) all draperies, carpeting, floor coverings, screens, storm
windows and window coverings, blinds, awnings, shrubbery and plants, iv)
all elevators, escalators and shafts, motors, machinery, fittings and
-12-
supplies necessary for their use, v) all building materials and supplies
now or hereafter delivered to the Premises, vi) all plans, drawings and
specifications (subject to the rights of the architects and engineers who
have prepared such plans, drawings and specifications), documents,
equipment, fixtures and furnishings used in the business and operation of
the Premises (it being understood that the enumeration of any specific
articles of property shall in no way be held to exclude any items of
property not specifically enumerated), as well as renewals, replacements,
proceeds, additions, accessories, increases, parts, fittings, insurance
payments, awards and substitutes thereof, together with all interest of
Borrower in any such items hereafter acquired, as well as the Borrower's
interest in any lease, or conditional sales agreement under which the same
is acquired.
"Plans and Specifications" shall mean the plans and specifications for the
construction of the Improvements prepared by the Architect which Plans and
Specifications shall comply with all Governmental Requirements shall in
all respects be suitable for construction of the Improvements. An Extract
of the Plans and Specifications is attached as Exhibit "D".
"Plat" shall mean any subdivision of the Premises as required to be
completed and filed as a condition of constructing the Project.
"Premises" shall mean all of the Condominium Units identified in Exhibit
"E" together with all other interests in the Condominium Property that
accrues to a Condominium Unit including all Timeshare Estates in a
Condominium Unit less those Timeshare Estates that are from time to time
released pursuant to the provisions of Article 8 hereof. A full
description of the Premises is attached as Exhibit "E".
"Prime Rate" shall mean the rate of interest published in the Money Rates
section of The Wall Street Journal from time to time as the Prime Rate. If
more than one Prime Rate is published in The Wall Street Journal for a
day, the average of the Prime Rates so published shall be used and such
average shall be rounded up to the nearest one quarter of one percent
(.25%). If The Wall Street Journal ceases to publish the Prime Rate, the
Lender may select a comparable publication or service that publishes such
Prime Rate, or its equivalent, and if such Prime Rate is no longer
published, then the rate publicly announced by one of the ten largest
money center banks in the United States (as selected by the Lender in its
discretion) as its "prime" or "reference" rate. Changes shall be effective
as of the date of publication.
"Principal" shall mean the sums of money from time to time disbursed by
the Lender pursuant to this Agreement.
"Principal Balance" shall mean the from time to time amount of Principal
remaining unpaid.
"Pro Forma" shall mean a pro forma analysis of the projected time schedule
for completion, source and use of funds, the occupancy thereof and the
cash flow from the Project.
-13-
"Project" shall mean the Renovation of the Improvements to a timeshare
resort pursuant to the Timeshare Act and in substantial accordance with
Governmental Requirements, the Plans and Specifications and as fully
equipped with the FF&E.
"Project Costs" shall mean those costs incurred in development and
construction of the Project as set forth in the Budget, as such Budget may
from time to time be amended with the consent of the Lender.
"Project Manual" shall mean the Specifications Manual prepared by the
Architect identifying the Project, specifying the criteria for the Work
and the bidding procedures.
"Property Manager" shall mean any person or entity hired to manage or
lease the Premises.
"Prospectus" shall mean the Multisite Purchaser's Public Offering
Statement dated November 2001 for the Bluegreen Vacation Club as prepared
and issued by the Bluegreen Corporation, as amended and supplemented from
time to time.
"Punch List" shall mean a list prepared by the General Contractor in
cooperation with Borrower detailing all corrections and actions required
to be taken by the General Contractor in order for the Borrower to find
the Work acceptable and complete in strict accordance with the Contract
Documents and which shall meet with the approval of Lender's Inspecting
Architect.
"Punch List Items" shall mean those items of Work which are detailed in
the Punch List.
"Purchase Price" shall mean the gross sale price for the purchase of a
Timeshare Estate.
"Release Price" shall mean as to Timeshare Estates the following amounts
for the described Time Share Period sold:
Time Share Period Release Price
----------------- -------------
Annual $4,034.00
Biennual $2,017.00
X (Full) $2,305.00
Y (Full) $1,729.00
X (Odd Year) $1,152.50
X (Even Year) $1,152.50
Y (Odd Year) $ 864.50
Y (Even Year) $ 864.50
"Rents and Income" shall mean rents, income, contract rights, leases, all
rental payments now due or which may hereafter become due under or by
virtue of any lease, license or agreement, whether written or verbal, for
the use or occupancy of the Premises or any part thereof together with all
tenant security deposits, all receivables, customer obligations,
installment payment obligations and other obligations now existing or
-14-
hereafter arising or created out of sale, lease, sublease, license,
concession or other grant of the right of possession, use or occupancy of
any portion of the Premises and all proceeds from the same.
"Renovation" shall mean the renovation of the Improvements which includes
a substantial rehabilitation of the building's interior and exterior
components which shall include a complete renovation of all interior
common areas and individual Units, including new kitchens, baths,
lighting, flooring, plumbing and mechanical and electrical upgrades and
new furniture, fixtures, equipment and associated furnishings in each Unit
and which is further detailed in the Plans and Specifications.
"Reserves" shall mean the following amounts to be held by the Lender in
reserve and to be applied by the Lender to the category for which the
Reserve is established:
a) Construction Contingency Reserve. $63,000.00 to defray
unforeseen construction contingencies arising out of the
Project ("Construction Contingency Reserve").
"Required Approvals" shall mean Approvals as required to be obtained.
"Required Financial Reports" shall mean those financial reports required
pursuant to Section 6.25:
"Retainage" shall mean a percentage amount to be deducted from each
Advance for payment of Direct Costs and retained by the Lender until the
requirements for Disbursement of Final Balance are met. The Retainage
under this Agreement shall be ten percent (10%) of each such Advance until
the Project is fifty percent (50%) completed and zero thereafter.
"Schedule of Unsold Units" shall mean the schedule attached as Exhibit "F"
which sets forth the aggregate unsold Timeshare Estates.
"Schedule of Values" shall mean the summary of the cost and items of Work
prepared by the General Contractor itemizing each Category of Work by line
item and designating the Work and cost of the Work and the subcontractor
or Materialman for the same.
"Scope of the Work" shall mean all work and material necessary to complete
the Project as contemplated by the Contract Documents.
"Site Acquisition" shall mean the acquisition of the Premises by the
Borrower.
"Subcontractor(s)" shall mean those persons furnishing labor or Materials
for the Project under contract with the General Contractor.
"Sub-Contracts" shall mean the contracts between the General Contractor
and Subcontractors for the furnishing of labor or materials for the
Project.
-15-
"Substantial Completion" shall mean the stage in the progress of the Work
where all of the following have occurred:
1. All Work pursuant to the Contract Documents has been
substantially completed such that the remaining items to be
completed are not necessary for the use and enjoyment of the
Project by Borrower and any tenants; and further, that the
completion of any such items can be performed by General
Contractor without significantly interfering with the use and
enjoyment of the Project by Borrower and any tenants.
2. General Contractor has turned over all areas of the
substantially completed Project in a logical, sequential
manner to Borrower.
3. All mechanical, electrical, fire protection, HVAC, life safety
and similar building systems installed by General Contractor
have been tested, started and commissioned for permanent use.
4. Inspection and approval by all applicable governmental
agencies has occurred and a Certificate of Occupancy or
Temporary Certificate of Occupancy has been issued by the City
covering the entire Project, which certificate may contain
certain exceptions or conditions to occupancy, so long as such
exceptions or conditions do not interfere with the use and
enjoyment of the Property by Borrower and its tenants.
"Suppliers" shall mean those persons or entities supplying Materials to
the Project other than the General Contractor.
"Sworn Construction Statement" shall mean a sworn statement of the General
Contractor listing by line each item of Work or Materials to be performed
or furnished, itemized by category, the Contractor or Supplier performing
or furnishing such Work or furnishing Materials, and the estimate of the
cost of the Work to be done.
"Tenant(s)" shall mean any party entitled to possession of the Premises
under any Lease.
"Timeshare Act" shall mean the Florida Vacation Plan and Timeshare Act,
Chapter 721 of the Florida Statutes and where required Equivalent Acts.
"Timeshare Disclosure Requirements" shall mean those disclosures required
by Florida Statutes 721 and where required Equivalent Acts.
"Timeshare Estate" shall mean a real property interest established
pursuant to a F.S. Chapter 721; TO WIT: a right to occupy a Unit for a
Timeshare Period, coupled with a freehold estate or an estate for years
with a future interest in the Condominium Property or a specified
Condominium Unit, subject to the Declaration. The term shall also mean an
interest in a Unit under which the exclusive right of use, possession or
occupancy of the Unit circulates among the various purchasers of a
Timeshare Plan pursuant to F.S. Chapter 721 on a recurring basis for a
period of time. By way of example, and not limitation, the term shall
include an undivided interest as a tenant-in-common with other
-16-
Owners as may exist in the Aggregated Units, with the numerator of such
undivided interest as a tenant-in-common with other owners being the
respective numbers of days of use allocated to the purchase of the
respective Timeshare Estates.
"Timeshare Filing" shall mean the Single Site/Component Site Timeshare
Filing Statement filed with the Department and as approved by such
Department authorizing the selling of Timeshare Estates in the Project and
any filing statement required to be filed under Equivalent Acts.
"Timeshare Offering" shall mean the offering of Timeshare Estates in the
Units pursuant to the Timeshare Filing.
"Timeshare Period" shall mean the period or periods of time when a
purchaser of a Timeshare Estate is afforded the opportunity to use the
accommodations or facilities of the Timeshare Plan. Reference is made to
the Declaration for a definitive detail of each Timeshare Period.
"Timeshare Plan" shall mean the plan established by the Prospectus by
which an Owner receives a beneficial interest in a Timeshare Period in a
Unit pursuant to the Timeshare Plan coupled with a freehold interest in a
Unit subject to the Declaration.
"Timeshare Purchaser" shall mean persons or entities purchasing title to a
Timeshare Estate.
"Timeshare Sale" shall mean a sale of a Timeshare Estate to a Timeshare
Purchaser.
"Title" shall mean First American Title Insurance Company, the title
insurer issuing the mortgagee's title insurance policy.
"Title Policy" shall mean an extended coverage ALTA Lender's Policy of
Title Insurance issued by Title (Form 1970 with the Florida modifications)
and containing such endorsements as Lender may require and setting forth
as exceptions to title those exceptions as may be approved by Lender.
"Transfer" shall mean (a) in the case of the Premises any sale, grant,
pledge, assignment, mortgage, encumbrance, security interest, consensual
lien, hypothecation, lease (other than bona fide third party leases for
actual occupancy by an unrelated, unaffiliated tenant), transfer or
divesture or otherwise of or an interest in i) the Premises or ii) a
Condominium Unit or iii) a Timeshare Estate other than a Timeshare Sale
and (b) in the case of ownership interests in the Borrower any sale,
grant, pledge, assignment, mortgage, encumbrance, security interest,
consensual lien, hypothecation, transfer or divesture or otherwise of or
an interest in the Borrower.
"Unit Owner" shall mean the owner of a Condominium Unit or Timeshare
Estate.
"Work" shall mean all Labor and Materials required to complete the
construction of the Project including all Improvements, site grading,
demolition of existing improvements, if
-17-
any, required off site Improvements, FF&E acquisition and installation, if
any, landscaping, signage, installation of utilities, curb and gutter and
parking areas.
2.
THE LOAN
2.1 Loan. Subject to the terms and conditions of this Agreement and the
compliance by the Borrower with its obligations to Lender hereunder, the Lender
shall advance to Borrower and Borrower shall borrow from Lender the Loan.
2.2 Interest Rate. The Loan shall bear interest at the following rates of
interest ("Interest Rate"):
(a) Stated Rate. From and after the date of the initial disbursement of
Principal, the Loan shall bear interest at a definite and certain
but fluctuating per annum rate of interest equal to one hundred
twenty-five (125) Basis Points plus the Prime Rate, as it may change
from day to day. Notwithstanding the above, the Stated Rate shall
never be less than Seven and Fifty Hundredths Percent (7.50%)
("Stated Rate").
(b) Default Rate. If a Default (as later defined) occurs under the Loan
then, at the option of the Lender hereof, during the entire period
during which such Default shall occur and be continuing interest
shall be payable on the Principal Balance at a per annum rate of
interest equal to the lesser of (i) the maximum lawful rate of
interest permitted to be paid on the Loan or (ii) four hundred (400)
Basis Points plus the Stated Rate as it may change from day to day
("Default Rate") whether or not the Lender has exercised its option
to accelerate the maturity of this Note and declare the entire
Principal Balance due and payable.
In no event shall the Interest Rate on the Loan exceed the lesser of (i) 25% per
annum or (ii) the maximum rate allowed pursuant to the usury laws of the State
of Florida.
2.3 Late Charge. In the event that any payment required under the Note is
not paid when due, the Borrower agrees to pay a late charge of $.04 per $1.00 of
unpaid payment to defray the costs of the Lender incident to collecting such
late payment. This late charge shall apply individually to all payments past due
and there will be no daily pro rata adjustment. This provision shall not be
deemed to excuse a late payment or be deemed a waiver of any other rights the
Lender may have including the right to declare the entire unpaid principal and
interest immediately due and payable.
2.4 Basis of Computation. Interest shall be calculated by multiplying the
actual number of days elapsed in the period for which interest is being
calculated by a daily rate based on a 360 day year.
2.5 Payment. The Loan shall be payable in accordance with the terms and
conditions of the Note which are incorporated herein by reference.
-18-
2.6 Prepayment. The Loan shall be prepayable in accordance with the terms
and conditions of the Note which are incorporated herein by reference.
3.
RESERVES
3.1 Reserves. The Lender shall hold back from disbursement of the Loan
proceeds an amount sufficient to initially establish the Reserves as unfunded
accounts under this Agreement and from which Reserves funds shall be thereafter
disbursed by Lender as provided in this Agreement. No interest shall accrue or
be payable to Lender by Borrower on any such Reserve prior to its disbursement.
If a Reserve account shall be entirely disbursed, but the costs or expenses for
which that Reserve have been established shall not have been fully paid and
provided for, Lender shall have the right to hold back from any further
disbursement of Loan proceeds funds sufficient to re-establish those Reserves in
amounts sufficient (in Lender's reasonable judgment) to provide for those costs
and expenses thereafter. If in doing so the total of remaining Project Costs
will exceed the Loan proceeds remaining to be disbursed, Borrower shall upon
notice from Lender deposit with Lender additional Owner Equity in an amount
sufficient to fund the Reserves in the amount of the resulting deficiency as
determined by Lender. Lender shall have no obligation to disburse a Reserve (i)
if an Event of Default has occurred and is continuing hereunder, or (ii) to
disburse a Reserve for any other purpose or to any other person other than for
which the Reserve was established, provided if an Event of Default has occurred,
the Lender may disburse any Reserve in its discretion to the payment of the Loan
or to any Project Cost as it may decide. Borrower hereby grants to Lender a
first security interest in the Reserves. Upon exhaustion of a Reserve, and if
further costs are foreseeable Borrower shall deposit with the Lender as
additional Owner Equity sums sufficient to replenish the Reserves. It is not the
intent to disburse the Reserves at the opening of the Loan but rather amounts
held in reserve shall be disbursed from time to time as required in increments
as needed to satisfy the item for which the Reserve has been established.
3.2 Disbursement of Excess Reserves. Any Reserves remaining undisbursed on
the Final Completion Date shall be disbursed to the Borrower as a Final
Disbursement of the Loan.
4.
INSURANCE
4.1 Insurance. Prior to the request for the First Advance Borrower shall
obtain or require the Association to obtain, pay for and keep in full force and
effect during the term of this Mortgage the following policies of insurance:
Contractor's Liability - For each contractor performing work in the
Premises Contractor's Comprehensive General Liability Insurance
[including operations, product liability, contingent liability
operations, operations of subcontractors, completed operations,
contractual liability insurance and comprehensive automobile
liability insurance (including hired and non-owned liability)] and
with combined single limit and general aggregate coverage for
personal and bodily injury and property damage of at least
$1,000,000.00 for each occurrence and with $10,000,000.00 excess
liability coverage.
-19-
Worker's Compensation - For each contractor performing work in the
Premises statutory worker's compensation coverage in the minimum
Statutory limit under Florida Workers Compensation Laws.
All Risk - All Risk of Direct Physical Loss or Damage perils special
form property insurance with extended coverages including 12 months
loss of rents, Contingent Operations of Building Laws/Ordinance or
Law Endorsement (including demolition cost, loss to undamaged
portions of any buildings and increased cost of construction),
Earthquake, Boiler and Machinery, Wind-named Storms, Coastal Wind
and Flood in the amount of $50,000,000 of 100% replacement cost and
with no co-insurance provision naming the Association as insured,
Borrower as additional insured with respect to the Units and the
Lender as mortgagee/loss payee with respect to the Units.
CGL. Commercial general public liability insurance (including fire
damage, medical expenses, personal injury, general aggregate and
products, completed operations, contractual liability, host liquor
liability, broad form property damage, and personal injuries,
including death resulting therefrom) and with combined single limit
and general aggregate coverage and of at least $1,000,000.00 for
each occurrence and with $10,000,000.00 excess liability coverage
the naming Association as insured and naming the Borrower and Lender
as additional insured with respect to the Units.
Other. Such other coverages as the Association may be required to
carry under the Declaration for the benefit of the Unit Owners.
4.2 Insurance Policy Requirements. Maximum deductible on coverages shall
be no greater than $5,000 for All Risk, $25,000 for Earthquake, 5% ($100,000
occurrence minimum), fior California Earthquake, $10,000 for Boiler and
Machinery, $25,000 for Flood, 2% ($100,000 occurrence minimum) for Named Wind
and 1% ($250,000 occurrence maximum) Coastal Wind. The insurance carrier must be
rated A, Class VIII, or better, by Best's Rating Service. Such insurance
policies shall be written on forms and with insurance companies satisfactory to
Lender, shall be in amounts sufficient to prevent the Borrower/Association from
becoming a co-insurer of any loss thereunder, shall insure the Lender as a first
mortgagee on the casualty coverage under a standard mortgagee clause and shall
name Lender as an "additional insured" on all required liability coverages and
policies. The Borrower/Association shall, within thirty (30) days prior to the
expiration of any such policy, deliver other original policies of the insurer
evidencing the renewal of such insurance together with evidence of the payment
of current premiums therefor. Any vacancy, change of title, tenant occupancy or
use, physical damage, additional improvements or other factors affecting any
insurance contract must be reported to the Lender immediately. An original or
certified copy of each policy is required upon renewal. If no such copy is
available, Lender will accept a binder for a period not to exceed ninety (90)
days. All binders, certificates of insurance, and original or certified copies
of policies must name Borrower/Association as a named insured, or as an
additional insured, must include the complete and accurate property address and
must bear the original signature of the issuing insurance agent.
-20-
If the Association maintains the required insurance under a "master" or
"blanket" policy which is satisfactory to Lender and which provides insurance
coverage in the amounts, for the periods, and against the hazards Lender
requires; then Association's obligation to maintain hazard insurance coverage on
the portion of the Project subject to the Declaration is deemed satisfied to the
extent that that the required coverage is provided by the Association policy.
4.3 Collection and Use of Proceeds. Borrower shall cooperate with Lender
in obtaining for Lender the benefits of any Insurance Policies, bonds or other
proceeds payable to it under such Insurance Policies and bonds and shall pay all
reasonable expenses of Lender in participating in any loss adjustments
(including the payment by Borrower of the expense of an independent Appraisal on
behalf of Lender, if reasonably necessary to facilitate adjustment of a loss).
All required insurance on Units that are subject to the Declaration shall be
applied as provided for in the Declaration and at the request of the Lender the
Association shall pay such proceeds to an insurance trustee acceptable to the
Lender pursuant to the provisions of the Declaration. Any excess proceeds
remaining after application to rebuilding or restoration as provided for in the
Declaration shall be paid to Lender to be applied to repayment of the Loan. Any
excess proceeds remaining after application to rebuilding or restoration as
provided for in the Declaration shall be paid to Lender to be applied to
repayment of the Loan. As to insurance maintained on the Units owned by the
Borrower the proceeds payable from the same shall be applied to the restoration
of damage to the Unit with any excess to be applied at the option of the Lender
to the repayment of the Loan, provided if there is a damage or destruction such
that the Association shall decide not to rebuild the damaged Units, then the
entire proceeds from such policy shall be paid to the Borrower and applied to
the repayment of the Loan.
5.
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
5.1 Validity of Loan Documents. The Loan Documents grant to Lender a valid
and enforceable first lien and security interest in the Project.
5.2 Priority of Lien on Personalty. No chattel mortgage, 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 Personalty used in conjunction with the construction, operation or
maintenance of the improvements, except with respect to the removable trade
fixtures, inventory and personal property of any Tenant of the Premises.
5.3 Conflicting Transactions of Borrower. The consummation of the
transactions hereby contemplated and the performance of the obligations of
Borrower under and by virtue of the Loan Documents will not result in any breach
of, or constitute a default under the Organizational Documents, any mortgage,
lease, bank loan or credit agreement, or other instrument to which Borrower is a
party or by which it may be bound or affected.
5.4 Legal Status of Borrower. Borrower is duly organized, validly existing
and in good standing under the laws of the State of Florida and has all power,
authority, permits, consents, authorizations and licenses necessary to carry on
its business, to construct, equip, own and operate the Project and to execute,
deliver and perform this Agreement and the other Loan Documents to which
Borrower is a party; all consents required of the ownership of Borrower
-21-
necessary to authorize the execution, delivery and performance of this Agreement
and of the other Loan Documents which have been or are to be executed by and on
behalf of Borrower have been duly adopted and are in full force and effect; and
this Agreement and such other Loan Documents have been duly authorized, executed
and delivered by and on behalf of Borrower and are the valid and binding
obligations of Borrower, enforceable in accordance with their respective terms.
5.5 Legal Status of Corporate Guarantor. The corporate Guarantor is a duly
organized, validly existing corporation in good standing under the laws of the
State of Massachusetts and has all power, authority, permits, consents,
authorizations and licenses necessary to carry on its business, and to execute,
deliver and perform its Guaranty; all consents required of the shareholders of
such corporation necessary to authorize the execution, delivery and performance
of the Guaranty have been duly adopted and are in full force and effect; and the
Guaranty has been duly authorized, executed and delivered by and on behalf of
the corporation and is the valid and binding obligation of the corporation,
enforceable in accordance with its terms.
5.6 Pending Litigation. There are no actions, suits or proceedings
pending, or to the knowledge of Borrower threatened, against or affecting it, or
the Premises, 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 or which, if adversely determined would not
substantially impair the ability of Borrower to perform each and every one of
its obligations under and by virtue of the Loan Documents; and to the 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.
5.7 Violations of Governmental Law, Ordinances or Regulations. Borrower
has no knowledge of any violations or notices of violations of any federal or
state law or municipal ordinance or order or requirement of the State in which
the Premises are located or any municipal department or other governmental
authority having jurisdiction affecting the Premises, including the Condominium
Act and Timeshare Act, which violations in any way relate to or affect the
Premises.
5.8 Compliance with Zoning Ordinances, Governmental Requirements. To the
best of Borrower's knowledge, the Plans and Specifications, the Work and
construction pursuant thereto and the use of the Premises contemplated thereby
comply and will comply with all Governmental Requirements, Environmental Laws,
equal employment regulations, any private covenants affecting the Project, and
appropriate supervising boards of fire underwriters and similar agencies and all
Approvals to the construction of the Project have been obtained.
5.9 Availability of Utilities. All utility services necessary for the
proper operation of the Project for their intended purposes are available at the
Premises or will be made available to the Premises prior to completion of
construction of the Improvements at standard utility rates and hook-up charges,
including water supply, storm and sanitary sewer facilities, energy and
communications facilities.
-22-
5.10 Permits. All Permits required for the construction of the
Improvements are available from the Governmental Authorities and will be issued
and paid for prior to the First Advance.
5.11 Condition of Premises. The Premises are not now damaged or injured as
a result of any fire, explosion, accident, flood or other casualty, nor subject
to any condemnation action or exercise of eminent domain by a Governmental
Authority.
5.12 Final Plans and Specifications. The Plans and Specifications are
final. Excepting for Minor Changes, no changes are to be made in the Plans and
Specifications as so approved without Required Approvals.
5.13 Construction Contract(s). The General Contract is in full force and
effect and no default exists thereunder and the Borrower will perform its
obligations thereunder and cause the General Contractor to perform its
obligations thereunder. Borrower will cause the General Contractor to promptly
furnish Lender with the complete list of all Subcontractors or entities which
General Contractor proposes to engage to furnish labor and/or materials in
constructing the Improvements, together with the amounts due them under their
subcontracts and the Work to be done by the Subcontractor, and will from time to
time furnish Lender with true copies of all Major Contract(s).
5.14 Brokerage Commissions. Borrower has independently engaged the
services of its own brokers to obtain the Loan from the Lender. Borrower agrees
to pay all commissions and fees due such brokers and Borrower agrees to and
shall indemnify Lender from any liability, claims or losses arising by reason of
any Broker claiming a fee or commission due in connection with 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, claims or losses
exists. The Budget accurately sets forth all amounts due such engaged brokers
and Borrower represents and warrants to the Lender that no other brokerage
commissions are due in connection with the transaction contemplated hereby.
5.15 Environmental Impact Statement. All required environmental impact
statements as required by any Governmental Authority have been duly filed and
approved.
5.16 Access. The Premises directly front on a publicly maintained road or
street and have legal access to the same through governmentally approved curb
cut permits.
5.17 Hazardous Substances Representations of Borrower. To the best of its
knowledge following due inquiry as a duly diligent property owner, and except as
disclosed by the Environmental Site Assessment delivered to and accepted by the
Lender, (i) the Premises has been and is free from contamination by Hazardous
Substances but including neither (A) immaterial quantities of automotive motor
oil leaked inadvertently from vehicles in the ordinary course of the operation
of the Premises and cleaned up in accordance with reasonable property management
procedures and any applicable law nor (B) immaterial quantities of substances
customarily and prudently used in the cleaning and maintenance of the Premises
in accordance with any applicable law), (ii) no release of any such Hazardous
Substance has occurred on or about the Premises, (iii) that the Premises
currently complies, and will comply based on its
-23-
anticipated use, with all current Environmental Laws, (iv) that, in connection
with the ownership, operation, and use of the Premises, all necessary notices
have been filed and all required permits, licenses and other authorizations have
been obtained, including those relating to the generation, treatment, storage,
disposal or use of Hazardous Substances, (v) that there is no present or to the
best of Borrower's knowledge following inquiry as a duly diligent property
owner, past or threatened investigation, inquiry or proceeding relating to the
environmental condition of, or to events on or about, the Premises, and (vi)
there are not to the best of Borrower's knowledge any underground storage tanks
currently existing and to the extent such underground storage tanks are existing
they are registered under the required Environmental Laws and do not contain any
leakages, and (vii) Borrower has not received nor does it have any knowledge of
any summons, citation, directive, letter or other communication, written or
oral, from any local, state or federal governmental agency concerning (A) the
existence of Hazardous Substances on the Premises or in the immediate vicinity,
(B) the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or
dumping of Hazardous Substances onto the Premises or into waters or other lands
or (C) violation of Environmental Laws.
5.18 Flood Plain. The Improvements are not located in a 100 Year Flood
Plain as depicted on any FIRM Maps or as determined by the Federal Emergency
Management Agency ("FEMA").
5.19 Status of Borrower. Neither Borrower nor any controlling interest in
Borrower (if an entity) is insolvent (as such term is defined in Section 101(32)
of the Bankruptcy Code, as amended) and will not be rendered insolvent (as such
term is defined in Section 101(32) of the Bankruptcy Code, as amended) by
execution of this Agreement, the Note or any other Loan Documents or
consummation of the transactions contemplated thereby.
5.20 Margin Stock. Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System) and no proceeds of the Loan will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
5.21 Licensing. To the best knowledge of Borrower, both the General
Contractor and Architect hold valid professional licenses as contractor and
architect, respectively, where required as a condition to performing their
duties.
5.22 Purchase of Materials Under Conditional Sales Contract. No Materials,
FF&E or any other part of the Improvements, or articles of Personalty or FF&E to
be placed in the Project, have been or will be purchased or installed under any
security agreement, title retention agreement or other arrangements wherein the
seller reserves or purports to reserve the right to remove or to repossess any
such items or to consider them personal property after their incorporation in
the Work unless authorized by Lender in writing.
5.23 Disbursing Agreement. Borrower shall obtain the execution of the
Disbursing Agreement by itself and Title and shall comply with all provisions of
the Disbursing Agreement and shall cause the General Contractor to comply with
those provisions binding on it.
-24-
6.
COVENANTS OF BORROWER
6.1 Site. Borrower holds marketable fee simple title to the Premises
subject only to the Permitted Exceptions and shall execute and deliver or cause
to be executed and delivered such instruments as may be required by the Lender
and Title to provide Lender with a valid first lien on and security interest in
the Premises subject only to the Permitted Exceptions.
6.2 Start of Work. As to any Existing Work Borrower will cause such
construction to cease and terminate all existing contracts for construction of
the Work. Borrower will not recommence construction or permit any Contractor,
including General Contractor, to recommence any Work until Lender and the
Disbursing Agent have been provided:
(a) A Sworn Cost Statement sworn to by the Contractor of the Project
itemizing all Direct Costs to be incurred in constructing the
Project, the name of each and every known contractor,
sub-contractor, workmen and materialman, his address and an estimate
of the dollar value of the work, labor and materials to be done or
supplied and a general statement of the nature of the work to be
done or materials to be supplied by each contractor and if not yet
bid, the amount of the subcontract to be bid (to be updated as
subcontracts are bid).
(b) A Final Affidavit from the Borrower with respect to any existing
work done on the Premises identifying (i) by name each and every
contractor, sub-contractor, workmen and materialman the Contractor
has contracted with, (ii) his address, (iii) the dollar value of the
work, labor and materials done or supplied, (iv) a general statement
of the nature of the work done or materials supplied, and (v) that
all lienors under contract have been paid in full.
(c) A Final Affidavit by any contractor engaged by the Borrower with
respect to any work done under a prior Notice of Commencement
identifying by name each and every contractor, sub-contractor,
workmen and materialman, his address, the dollar value of the work,
labor and materials done or supplied, including the list described
in Section 713.165 Florida Statutes, and a general statement of the
nature of the work to be done or materials to be supplied with
respect to any existing Work under contract.
(d) Final Waiver and Release of Lien from each person or entity who has
performed work and/or provided materials or supplies to the Project
acknowledging that the Existing Notices of Commencement are void.
(e) Termination of all existing contracts for any Work done on the
Project.
(f) Removal of all posted Existing Notices of Commencement.
(g) Affidavit of the Owner in accordance with Florida Statutes 713.07 in
reasonable form reciting the facts that establish of record the date
that construction ceased and that all parties who have provided work
and/or furnished material to the Project have been paid in full.
-25-
(h) A Notice of Termination of any Existing Notice of Commencement filed
pursuant to Chapter 713 of Florida Statutes.
(i) A new Notice of Commencement as required by Chapter 713.13 of the
Florida Statutes ("New Notice of Commencement") to be filed
immediately after recording of the Mortgage and posted on the
Premises.
(j) Such indemnities and hold harmless agreements as Disbursing Agent
may require.
(k) Such other documents and requirements as Disbursing Agent may
require.
(l) If requested by the Lender or the Disbursing Agent, a copy of any
contract with any Sub-contractors or Materialman.
Borrower shall diligently pursue construction of the Project to Completion, and
supply such moneys and perform such duties as may be necessary to complete the
construction of the Project pursuant to the Contract Documents and in full
compliance with all terms and conditions of this Agreement and the Loan
Documents, all of which shall be accomplished on or before the Completion Date
and without Liens, claims or assessments (actual or contingent) asserted against
the Premises for any material, labor or other items furnished in connection
therewith, and all in full compliance with all Governmental Requirements,
evidence of satisfactory compliance with all of which Borrower will provide to
Lender upon request therefor by Lender. Borrower agrees to hold harmless and
indemnify the Lender from any claimed or threatened Lien against the Premises.
Work shall not be commenced until a new Notice of Commencement has been filed.
6.3 Notice of Commencement. After recording of the Mortgage, the Borrower
shall provide to Title and Title shall record a Notice of Commencement as
required by Section 713.13 of the Florida Statutes, and Borrower shall post the
same on the Premises and upon the letting of any other Contracts for the Work,
shall file a Notice of Commencement for each such Contract and shall post a
certified copy of the same on the Premises. Additionally, Borrower shall file a
certified copy of any Notice of Commencement with the authority issuing the
Permits.
6.4 Plans and Specifications. Borrower has caused a full and complete,
final set of Plans and Specifications with all Approvals to be furnished to
Lender and its Inspecting Architect, for their review and approval prior to the
closing of the Loan and the same have been approved by Lender for its lending
purposes. It is understood that such approval is solely for the purpose of
Lender's underwriting requirements and such review shall not be construed as a
review of suitability, merchantability, fitness, compliance with Governmental
Requirements or otherwise and may not be relied upon by Borrower or any other
person or entity.
6.5 Contest of Impositions, Liens and Levies. Borrower shall keep the Premises
free from any Lien and upon the assertion of a claim of Lien or the filing of a
Lien against the Premises, the Borrower shall cause the same to be immediately
discharged and removed, provided Borrower shall not be required to pay,
discharge or remove any Lien so long as the Borrower shall in good faith contest
the same or the validity thereof by appropriate legal proceedings which shall
operate to prevent the collection of the Lien so contested and the sale of
-26-
the Premises, or any part thereof, to satisfy the same and the existence of such
Lien shall not delay or hinder the construction of the Improvements and provided
that the Borrower shall have given such reasonable security as may be demanded
by the Lender and Title to protect the Premises, and the Lender's interest
therein, if any such Lien is determined adverse to such interests. The Borrower
shall promptly after final determination of the validity of any such Lien, pay
the amount adjudicated due together with all interest and penalties which may be
payable in connection therewith. Notwithstanding these provisions Borrower shall
(and if Borrower shall fail so to do, Lender, may but shall not be required to)
pay any such Lien notwithstanding such contest if in the reasonable opinion of
the Lender, the Premises shall be in jeopardy or in danger of being forfeited or
foreclosed or construction of the Project is delayed or hindered. Borrower shall
promptly secure the necessary recordable Lien Waiver.
6.6 Surveys. Borrower shall furnish to Lender three copies of a current
land survey of the Premises prepared by a reputable, registered land surveyor,
certified and prepared in form and substance satisfactory to Lender and Title
and other interested parties and otherwise complying with the "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys" as adopted in 1999 by the
American Land Title Association, American Congress on Surveying & Mapping and
National Society of Professional Surveyors, including the following items 1, 2,
3, 4, 6, 7(a), 7(b)(1), 8, 9, 10, 11, and 13 of Table A and certifying the
description of the Premises (including the appurtenant easements), showing all
encroachments onto or from the Premises, spotting the proposed Improvements,
showing access rights, easements, or utilities, rights of way affecting the
Premises, showing all setback requirements upon the Premises, showing any
existing improvements, showing matters affecting title, and such other items as
Lender may reasonably request.
6.7 Title Insurance. Prior to the request for the First Advance, Borrower
shall furnish Lender with a fully paid Lender's Title Policy written in the full
Loan amount in form and substance satisfactory to Lender and written by Title
insuring the Premises are marketable, insuring fee simple title to the Premises
vested in Borrower, free from exceptions for mechanic's and materialmen's liens,
naming Lender as an insured and insuring that the Mortgage is a valid first lien
in the full amount of the Loan subject only to the Permitted Exceptions. The
policy may not contain a so called "Pending Disbursement" Endorsement. At the
option of the Lender the Lender may require that Title provide to Lender a
"downdate search endorsement" immediately prior to each Advance confirming no
Liens have been filed against the Premises and that all taxes are current.
6.8 Loan Documents. Prior to any request for an Advance, the Borrower
shall cause the Loan Documents to be executed and delivered to Lender.
6.9 Other Documents. Prior to any request for an Advance Borrower shall
furnish the Lender with copies of such other documents, instruments or materials
as may be reasonably required by Lender, if any.
6.10 Restrictions on Transfer. Borrower may not effect or permit a
Transfer.
6.11 Application of Loan Proceeds. Borrower shall use the proceeds of the
Loan solely for the purpose of paying for Project Costs and such incidental
costs relative to the
-27-
construction of the Project as may be approved from time to time in writing by
Lender, and in no event may use any of the Loan proceeds for personal or other
purposes.
6.12 Expenses. Borrower shall pay all costs of closing the Loan and all
reasonable expenses of Lender with respect thereto, including, but not limited
to, fees and expenses of Lender's counsel and all other attorney's fees
(including fees and costs incurred in connection with disbursement,
administration, collection, or closing of the Loan or in protecting or enforcing
any Loan Document in any proceeding conducted under the Bankruptcy Code), fees
and costs of Lender's Inspecting Architect, costs of title insurance, transfer
taxes, license and permit fees, recording expenses, surveys, intangible taxes,
documentary stamps, appraisal fees, expenses of collection and foreclosure
(including reasonable attorney's fees) and similar items.
6.13 Governmental Requirements. Borrower shall comply promptly with any
Governmental Requirements, including appropriate supervising boards of fire
underwriters and similar agencies and the requirements of any insurer issuing
coverage on the Project.
6.14 Right of Lender to Inspect Premises. Borrower shall permit Lender and
Title and their representatives and agents to enter upon the Premises and to
inspect the Work and all Materials to be used in construction thereof and to
cooperate and cause the Contractor(s) to cooperate with Lender, Title, and their
representatives and agents during such inspections; provided, however, that this
provision shall not be deemed to impose upon Lender or Title any duty or
obligation whatsoever to undertake such inspections, to correct any defects in
the Work or to notify any person with respect thereto. Notwithstanding the
foregoing, Borrower shall be responsible for making inspections as to the Work
during the course of construction and shall determine to its own satisfaction
that the work done or materials supplied by the Contractor(s) and all
Subcontractors has been properly supplied or done in accordance with the
applicable contracts. Borrower will hold Lender and Title harmless from and
Lender and Title shall have no liability or obligation of any kind to Borrower,
any third parties or creditors of Borrower in connection with any defective,
improper or inadequate workmanship or materials brought in or related to the
Work or the Premises, or any Liens arising as a result of such workmanship or
materials. Upon Lender's request, Borrower shall replace or cause to be replaced
any such Work or Material found to be nonconforming to the Contract Documents
(or in the case of the FF&E to the requirements of the Purchasing Agreement.
Such inspections are solely for the purpose of Lender's underwriting
requirements and such review shall not be construed as a review of suitability,
merchantability, fitness, compliance with Governmental Requirements or otherwise
and may not be relied upon by Borrower or any other person or entity.
6.15 Books and Records. Borrower shall set up and maintain accurate and
complete books, accounts and records pertaining to the Project including working
drawings in a manner reasonably acceptable to Lender. The Lender, Title and
Inspecting Architect shall have the right at all reasonable times to inspect,
examine and copy all books and records of Borrower relating to the Project, and
to enter and have free access to the Premises and improvements and to inspect
all Work done, labor performed, Materials, and FF&E furnished in or about the
Project. Any such inspection is solely for the purpose of Lender's underwriting
requirements and such review shall not be construed as a review of suitability,
merchantability, fitness, compliance with Governmental Requirements or otherwise
and may not be relied upon by Borrower or any other person or entity.
-28-
6.16 Correction of Defects. Borrower shall from time to time promptly
correct or cause the Contractor(s) to correct any defects in the Work or any
departure from the Plans and Specifications not previously approved by Lender.
An Advance of any Loan Funds shall not constitute a waiver of Lender's right to
require compliance with this covenant.
6.17 Sign Regarding Construction Financing. Borrower shall allow Lender to
erect and maintain at a suitable site on the Premises a sign indicating that
construction financing is being provided by Lender and to publicize Lender's
financing role.
6.18 Additional Documents. Borrower shall furnish to Lender all
instruments, documents, initial surveys, footing or foundation surveys,
certificates, plans and specifications, appraisals, financial statements, title
and other insurance reports and agreements and each and every other document and
instrument required to be furnished by the Borrower, hereunder, all at
Borrower's expense; shall assign 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 reasonably require; and shall do and
execute all and such further lawful and reasonable acts, conveyances and
assurances for the carrying out of the intents and purposes of this Agreement,
as Lender shall reasonably require from time to time. Prior to the start of any
FF&E installation, Borrower shall provide to Lender at its request copies of all
plans and specifications for such FF&E installation.
6.19 Assignment of Construction Contracts. Prior to the request for the
First Advance Borrower shall furnish Lender with copies of all Major Contracts
and assign to Lender the Construction Contracts. Borrower shall permit no
default under the Construction Contracts; shall not waive any of the obligations
of the parties thereunder; and shall do no act which would relieve such parties
from their obligations thereunder. The Borrower shall make no amendments to such
contracts, without the prior written consent of Lender and excepting Minor
Changes shall not enter into Change Orders or extras without Lender's consent
nor permit any changes to the Scope of the Work. Borrower shall allow all Major
Contracts to be subject to the approval of Lender for its underwriting purposes;
shall allow Lender to take advantage of all the rights and benefits of the
contracts upon any Event of Default by Borrower; and shall submit evidence to
Lender that the Contractor(s) will permit Lender to acquire Borrower's interest
in such contracts without additional charge or fee beyond payment of the
Contract Price should an Event of Default occur hereunder.
6.20 Compliance with Governmental Requirements. Borrower shall comply with
and shall require the Contractor(s) to comply with all Governmental Requirements
and all rules, regulations, ordinances and laws bearing on the conduct of the
Work and the Improvements, including the requirements of any insurer issuing
coverage on the Project and the requirements of any supervising boards of fire
underwriters or similar agencies.
6.21 Compliance with Condominium Documents. Borrower shall comply with the
provisions of the Condominium Documents and to keep and perform the obligations
of a Unit Owner thereunder.
6.22 Compliance with Prospectus. Borrower shall comply with the
Prospectus.
-29-
6.23 Compliance with Timeshare Plan. Borrower shall comply with the
Timeshare Plan.
6.24 Compliance with Timeshare Filings. Borrower shall comply with the
Timeshare Filings.
6.25 Opinions of Counsel. Borrower shall furnish such opinions of counsel
as Lender may require in connection with the matters contemplated by this
Agreement.
6.26 Loan Fee. Borrower shall pay to the Lender the Loan Fee not later
than the First Advance. The Lender shall be entitled to disburse directly to
itself out of the Loan the Loan Fee.
6.27 Regulation U. None of the transactions contemplated in this Agreement
(including without limitation thereof, the use of the proceeds of the Loan) will
violate or result in a violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulation issued pursuant thereto including, without
limitation, Regulation U of the Board of Governors of the Federal Reserve
System. None of the proceeds of the Loan will be used to (i) purchase any
"security" within the meaning of the Securities Exchange Act of 1934, as
amended, or (ii) refinance any borrowing, the proceeds of which were used to
purchase any such "security".
6.28 Financial Statements. Borrower shall furnish to the Lender the
following information at the following times:
(a) annually, and in any event within one hundred twenty (120) days
after the end of each fiscal year of Borrower, its annual financial
statement for such year, which annual report shall include its
balance sheet and related statements of income and expenses,
shareholders' equity and cash flow for the fiscal year then ended,
all in reasonable detail and all internally prepared in accordance
with GAAP.
(b) annually, and in any event within one hundred twenty (120) days
after the end of each fiscal year of Guarantor, its annual
consolidated financial statement for such year, which annual report
shall include its balance sheet and related statements of income and
expenses, shareholders' equity and cash flow for the fiscal year
then ended, all in reasonable detail and all prepared in accordance
with GAAP by a reputable accounting firm and certified pursuant to
audit.
(c) on or about the 15th day of each month, a report disclosing the
following information: (i) the number of purchase agreements
executed by Timeshare Purchasers; (ii) the amount of moneys
deposited with the Account Depository pursuant to such purchase
agreements; (iii) the Timeshare Estates to which the foregoing
information is applicable; (iv) the name and address of each
Timeshare Purchaser; (v) the Purchase Price for each Timeshare Sale;
and (vi) such other information with respect to the sales program as
Lender may reasonably request.
(d) within 45 days after the end of each calendar quarter, the quarterly
operating statement of the hotel operations being conducted on the
Premises including an income and expense statement and summary of
operations.
-30-
(e) not later than 45 days before each calendar year the annual budget
of the Association.
(f) within 120 days after the end of each calendar year, the annual
financial statement of the Association as prepared in accordance
with the Declaration.
(g) within 15 days after filing with the Securities and Exchange
Commission the quarterly 10Q and annual 10K of the Guarantor.
(h) within 15 days after receipt of Department approval any filings made
with the Department with respect to the Condominium and the
Timeshare Plan.
In the event Borrower fails to furnish any such statements after written request
to Borrower, the same shall be an Event of Default and in addition to any other
remedies available to Lender, the Lender may cause an audit to be made of the
respective books and records at the sole cost and expense of the Borrower.
Lender also shall have the right to examine at their place of safekeeping at
reasonable times all books, accounts and records relating to the operation of
the Premises.
6.29 Material Effect. Borrower will transmit to Lender, immediately upon
receipt thereof, any communication which could materially affect Lender's
security for the Loan or have a material adverse effect on the Project, the
financial condition of Borrower or any Guarantor and will promptly respond fully
to any inquiry of Lender made with respect thereto.
6.30 Lease(s)/Timeshare Sales. There are no Timeshare Sales currently
pending and no Leases of any of the Units and there are no Occupants in
possession of any Unit as of the date of the First Advance.
6.31 Environmental Covenants. Borrower shall for itself and shall cause
the Association (a) to comply with all federal, state and local laws, rules,
regulations and orders with respect to the discharge, generation, removal,
transportation, storage and handling of Hazardous Substances, (b) remove any
Hazardous Substances immediately upon discovery of same, in accordance with
applicable laws, ordinances and orders of governmental authorities having
jurisdiction thereof, (c) pay or cause to be paid all costs associated with such
removal; (d) prevent the migration of Hazardous Substances from or through the
Premises onto or under other properties; (e) keep the Premises free of any lien
imposed pursuant to any state or federal law, rule, regulation or order in
connection with the existence of Hazardous Substances on the Premises; (f) not
install or permit to be incorporated into any improvements in the Premises or to
exist in or on the Premises any asbestos, asbestos-containing materials, urea
formaldehyde insulation or any other chemical or substance which has been
determined to be a hazard to health and environment; (g) not cause or permit to
exist, as a result of an intentional or unintentional act or omission on the
part of Borrower or any occupant of the Premises, a releasing, spilling,
leaking, pumping, emitting, pouring, emptying or dumping of any Hazardous
Substances onto the Premises or into waters or other lands; and (h) give all
notifications and prepare all reports required by Environmental Laws or any
other law with respect to Hazardous Substances existing on, released from or
emitted from the Premises.
-31-
6.32 Environmental Indemnification. The Borrower indemnifies and holds
harmless the Lender, its officers, directors, employees, agents, contractors,
subcontractors, licensees, invitees, successors and assigns ("Indemnified
Parties") from and against any and all claims, losses, liabilities (including
without limitation strict liability), suits, obligations, fines, damages,
judgments, injuries, administrative orders, consent agreements and orders,
penalties, actions, causes of action, charges, costs and expenses, including
without limitation attorneys' fees and consultants' fees (i) arising out of the
inclusion in the Premises of Hazardous Substances or the presence on, the
release from, the generation, manufacture, refining, treatment, storage,
handling or disposal on, in or from the Premises of any Hazardous Substances, or
any underground or above ground storage tanks containing Hazardous Substances
and the cost of removal and remediation of the foregoing, or (ii) arising out of
the transportation, discharge or removal from the Premises of any Hazardous
Substance, or (iii) arising out of the inclusion in any product manufactured on
the Premises of a Hazardous Substance; or (iv) arising out of the failure to
perform the removal or abatement of or to institute a safe, effective and
environmentally approved control plan for any Hazardous Substance or the
replacement or removal of any soil, water, surface water, or ground water
containing Hazardous Substance in accordance with Environmental Laws; or (v)
arising out of the existence of any environmental lien against the Premises
pursuant to any Environmental Laws; or (vi) arising out of any violation or
claim of violation of Environmental Laws with respect to the Premises; or (vii)
arising out of any administrative proceedings and negotiations of any
description with any and all persons, political subdivisions, or governmental
agencies in connection with an alleged or actual violation of an Environmental
Law or presence of Hazardous Substances on the Premises; or (viii) arising out
of any breach of any of the representations and covenants contained herein
relating to Hazardous Substances and Environmental Laws (collectively the
"Indemnified Loss"). Borrower shall bear, pay and discharge such Indemnified
Loss as and when the same becomes due and payable.
7.
COMPLIANCE WITH ACTS
7.1 Acts. Borrower will take all steps necessary to remain in strict
compliance with the Acts and any rules and regulations of any governmental
authorities having jurisdiction over the Condominium and its development under
the Timeshare Plan. Borrower shall make all filings from time to time required
by the Acts including those specifically required by the Division of Florida
Land Sales, Condominiums and Mobile Homes and the Florida Department of Business
and Professions.
7.2 Compliance with Escrow Agreements, Etc. Borrower will not do, permit,
or suffer any act or omission which would constitute a violation of, or (subject
to rescission rights granted a Timeshare Purchaser by the Timeshare Act) give
any person any right to maintain any action for rescission of any sale of, or
agreement to sell, any Timeshare Estate in the Condominium. Borrower shall
comply with and fulfill all provisions of any escrow agreement, Purchase
Agreements, and any other documents in connection with the sale of a Timeshare
Estate on the part of the Borrower to be complied with or fulfilled.
7.3 Sales Program. In strict compliance with the provisions of the Acts
and any other applicable ordinances, statutes, regulations, or requirements of
regulatory authorities having jurisdiction the Borrower will undertake and
diligently pursue a program for the sale of the
-00-
Xxxxxxxxx Xxxxxxx. Borrower shall promote, offer for sale, and exert its best
efforts to sell all such Timeshare Estates. Each such sale of a Timeshare Estate
shall be pursuant to a valid and enforceable purchase agreement and the Borrower
shall diligently proceed to close the sale comprehended thereby. All sales shall
be consummated under the form of purchase agreement as previously reviewed and
approved by Lender.
7.4 Escrow Agent. In strict compliance with the Acts and any purchase
agreement, all deposits, payments or advances in the payment of the Purchase
Price of the initial sale of a Timeshare Estate, together with interest accrued
thereon, shall be held in the escrow account maintained with the escrow agent
established pursuant to the Acts and in strict compliance with the provision of
the Acts.
7.5 Approval by Lender. Borrower shall provide to the Lender at the
expense of the Borrower the Florida form of "condominium endorsement" endorsing
the Lender's ALTA Lender's Title Insurance Policy to reflect the Premises to be
a valid condominium under the Condominium Act and insuring that the lien of the
Mortgage extends to and creates a lien against the Units and Timeshare Estates
and all Common Elements appurtenant to such Unit or Timeshare Estates excepting
those Timeshare Estates which have been released from the lien of the Mortgage
as of the date of endorsement.
7.6 Condominium Obligations. Borrower shall perform all of Borrower's
obligations, both as declarant and as an individual condominium unit
owner/timeshare owner, under the Declaration and Timeshare Plan. Borrower shall
promptly pay, when due, all dues and assessments imposed pursuant to the
Declaration.
7.7 Special Provisions. Borrower hereby
(a) agrees that the Declaration and Timeshare Plan and all constituent
documents will not be modified or amended without the prior written
consent of Lender until the Indebtedness has been paid in full;
(b) agrees that it shall own, operate and maintain or cause the
Association to own, operate and maintain the Premises in accordance
with the Declaration and Timeshare Plan and all constituent
documents;
(c) agrees that the Premises granted, conveyed and assigned to Lender
hereunder shall include all rights, easements, rights of way,
reservations and powers of the Borrower under the Acts and the
Declaration and Timeshare Plan and all constituent documents in
Borrower's capacity as owner of unsold residential condominium units
and as Declarant as well as any rights that Borrower may have, in
any capacity, under the Acts and the Declaration and Timeshare Plan
and all constituent documents and as developer of the Condominium in
addition to Borrower's rights as owner of any of the units in the
Condominium, specifically including but not limited to all rights to
approve any amendments to the Declaration and Timeshare Plan and all
constituent documents and all rights to expand the Condominium;
-33-
(d) irrevocably constitutes and appoints Lender as Borrower's proxy and
attorney-in-fact (which appointment shall be deemed coupled with an
interest) for and in its behalf to perform all of the obligations of
Borrower and to exercise all of the rights and powers of Borrower
under the Declaration and Timeshare Plan and all constituent
documents without any liability therefor or thereunder. Borrower
hereby instructs and grants and gives to Lender full power and
authority to do and perform all and every act and thing whatsoever
authorized, permitted, requisite or necessary to be done by Borrower
under the provisions of the Declaration and Timeshare Plan and all
constituent documents to all intents and purposes the same as
Borrower might do, hereby ratifying and confirming all such attorney
shall lawfully does or chooses to do or be done by virtue hereof, it
being understood and agreed that the aforesaid provisions impose no
burden or obligation on the Lender to do or perform any act
whatsoever. It shall be an Event of Default under this Mortgage if
(i) Borrower terminates or revokes or attempts to terminate or
revoke the aforesaid appointment of Lender as Borrower's proxy or
attorney-in-fact either permanently or as to any election under the
Acts or Declaration and Timeshare Plan and all constituent documents
or (ii) Borrower ---- attempts to modify the terms of the
Declaration and Timeshare Plan and all constituent documents without
the prior written consent of Lender. Notwithstanding anything in
this paragraph to the contrary, the rights and powers of Borrower
granted in this paragraph may not be exercised by Lender prior to
the occurrence of an Event of Default;
(e) agrees nothing contained herein is intended to or shall be construed
to constitute Lender as the "Declarant" under the Acts and/or the
Declaration and Timeshare Plan and all constituent documents or as
owner of the Condominium, a partner or joint venturer of Borrower;
(f) agrees to indemnify and hold Lender harmless from and against any
and all losses, cost, liabilities, or damages (including attorney's
fees and disbursements) arising out of (i) the failure of the
Borrower to comply with any state or local law, ordinance, statute,
or regulation by any governmental authority covering the Condominium
at the Premises; or (ii) any claim of any unit owner or tenant of
any unit owner as a result of any violation, breach,
misrepresentation, fraud, act, or omission of any obligation of
Borrower as set forth in the Declaration and Timeshare Plan and all
constituent documents, which indemnification and hold harmless shall
survive the pay off of the Loan and the release or satisfaction of
the Mortgage.
8.
TIMESHARE SALES
8.1 Partial Release. As and when a Timeshare Estate is sold, upon payment
to the Lender of the applicable Release Price, the Lender shall release from the
lien of the Mortgage and other Loan Documents the Timeshare Estate sold in
accordance with the procedure set forth in Section 8.2.
-34-
8.2 Procedure. On the 15th day of the month following the last day of the
Borrower's fiscal month the Account Depository shall provide to the Lender the
following documents:
(a) Partial Release to be executed by the Lender partially releasing
from the lien of the Mortgage the Timeshare Estates that were sold
in the prior fiscal month.
(b) Copy of the Release Report as approved by the Account Depository and
Borrower, and setting forth the Timeshare Estate Period designation,
date of sale, customer name, and which shall also set forth the
Release Price due the Lender as consideration for the execution and
delivery of the Partial Releases requested.
(c) The agreement of the Account Depository that it will hold the
Partial Releases in escrow as agent for the Lender and will not
release the same until such time as it has wire transferred the
Release Price to the Lender's designated account at:
-35-
Bank: M & I Bank, Milwaukee, WI
ABA Number: 000000000
For the Account of: MM&S Investments Corporation
Account Number: 0018246085
8.3 Schedule of Unsold Units. The Borrower certifies that the Schedule of
Unsold Units is a true and correct listing of all unsold Timeshare Estates in
effect as of this date for the Condominium.
9.
CONDITIONS PRECEDENT TO AN ADVANCE
9.1 Conditions Precedent to First Advance. It shall be a condition
precedent to the First Advance that:
(a) Title. Marketable fee simple title to the Premises shall be vested
in Borrower subject only to Permitted Exceptions and the Mortgage
and other Loan Documents shall have been duly recorded in such
offices as required to create a valid and binding, enforceable first
lien against the Premises and the Title Policy shall have been
issued insuring Lender to that effect.
(b) Loan Documents. The Loan Documents shall have been duly executed and
delivered to Lender and shall be in full force and effect with no
default thereunder.
(c) Owner Equity. All of the Owner Equity shall be deposited in the
Construction Escrow Account.
(d) Loan Balance. The total amount of the Loan Funds available for
Project Costs plus Owner Equity deposited in the Construction Escrow
Account shall be sufficient, in the opinion of Lender to complete
and pay for all Work in its entirety. To the extent the total shall
be insufficient at any time, in Lender's opinion to complete the
Work and pay for the same in full or be less than the Project Costs,
the Borrower shall immediately deposit in the Construction Escrow
Account additional Owner Equity funds in an amount equal to such
deficiency.
(e) Representations and Warranties. The representations and warranties
in Article 5 hereof shall be true and correct on and as of the date
of each Advance.
(f) Covenants. Borrower shall have complied with all of the covenants
made by it in Article 6 hereof.
(g) General Contractor Sworn Construction Statement. The Borrower shall
have submitted to Lender and Title the Sworn Construction Statement.
From time to time if the Project Cost changes or the Scope of the
Work changes, the Borrower shall furnish to the Lender any
amendments or additions to the original statement as so submitted.
-36-
(h) Project Budget. The Budget shall have been approved and a timetable
with a schedule of anticipated advances shall have been furnished to
and approved by Lender. From time to time if the Project Cost
changes or the Scope of the Work changes, the Borrower shall furnish
to the Lender any amendments or additions to the original statement
as so submitted.
(i) Loan Fee. Lender shall have been paid the Loan Fee out of the First
Advance.
(j) Approvals. All Required Approvals shall have been satisfied.
(k) No Event of Default. No Event of Default has occurred and is
continuing under this Agreement.
(l) Disbursing Agreement. The Disbursing Agreement shall have been
executed and delivered between the Borrower, General Contractor,
Lender and Disbursing Agent and all requirements of the Disbursing
Agent shall have been satisfied and the Disbursing Agent shall have
been furnished with all items and matters required to be furnished
therein.
(m) Permits. All Permits shall have been issued without conditions
(other than as may be satisfied by the Work).
(n) Project Approval. The City shall have approved the Project.
(o) Timeshare Filing Approval. The Department shall not have revoked its
approval of the Timeshare Filing or enjoined any Timeshare Sales.
(p) Start of Work. Borrower shall have complied with Section 6.2 hereof.
9.2 Conditions Precedent to Future Advance. It shall be a condition
precedent to all Advances subsequent to the First Advance that all Conditions
Precedent to First Advance set forth in Section 7.1 have been satisfied.
10.
METHODS OF DISBURSEMENTS OF LOAN PROCEEDS
10.1 Procedure. Provided the Conditions Precedent to an Advance as set
forth in the Construction Loan Agreement are satisfied, not more often than
monthly Borrower may submit an Application for Payment to Lender (which shall
contain the names, addresses and amounts due the parties being entitled to
payment and any subcontractors and suppliers who have served the Notice to
Owner) requesting the Advance of Loan Funds to pay approved Project Costs shown
on the Budget and actually incurred in the construction of the Project as
incurred to date less the amount of all previous Advances for the same. Borrower
may request an Advance only for i) Direct Costs for Work and Material
incorporated in the Improvements, ii) Indirect Costs, iii) if approved by
Lender, cost of Materials to be incorporated in the Project and which are
securely stored on site, with scheduled insurance against loss, theft or damage
and for which title
-37-
rests in Borrower free of liens and claims, and iv) cost of FF&E to be installed
in the Project and which is securely stored on site (or in a bonded warehouse
with prepaid storage fees with warehouseman's receipt delivered to Lender) with
scheduled insurance against loss, theft or damage and for which title rests in
Borrower free of liens and claims. Each Advance for Direct Costs (other than
FF&E) is to be reduced by the Retainage (until such time as identified Line
Items of the Work become 100% complete, including all Punch List items, and are
placed in use by the Borrower and Final Waivers and Release of Lien for such
items are furnished at which time all Retainage previously withheld for that
Line Item of Work will be advanced). No Retainage shall be deducted from the
Payment of Indirect Costs or FF&E. No Advance may be made for (i) a Line Item in
excess of the aggregate amount of the Line Item as shown in the Schedule of
Values and (ii) a Project Cost in excess of the amount allocated in the Budget
each without the prior consent of Lender. No Retainage shall be deducted from
Advances for Project Costs for FF&E. All Owner Equity shall be disbursed prior
to any Advance of Loan Funds. Each Application For Payment shall be submitted to
Lender and to Disbursing Agent at least ten (10) business days prior to the date
on which an Advance is requested. Each Application For Payment shall clearly set
forth the amounts due to Borrower and in the case of Direct Costs shall be
accompanied by the Request For Payment of the General Contractor on AIA Form
G701/702 evidencing the amount due for all Work for which disbursement will be
made to date and showing all remaining amounts due for all remaining Work and
shall be accompanied by:
(a) As to each Direct Cost:
(i) Waivers and Release of Lien for all Work done and all
Materials furnished to the Premises and included in the
previous Application For Payment delivered by the respective
party or parties performing the Work and/or furnishing the
Materials and from such subcontractors and suppliers.
(ii) Waivers and Release of Lien from the Contractor for the full
amount of all Work done including the current Application For
Payment.
(iii) A report from Lender's Inspecting Architect approving the Work
done to date and confirming the progress of the Work done to
date and agreeing with the percentage of completion stated in
the Application For Payment.
(iv) Such other supporting evidence, including invoices and
receipts as may be requested by Lender or Disbursing Agent to
substantiate all payments which are to be made out of the
Advance or to substantiate all payments then made in respect
to the Project.
(v) And as to Materials delivered to, stored on and not yet
incorporated in the Improvements:
aa) the Contractor's certification that it holds good,
marketable title to the Materials and which title shall
pass to Borrower on payment to the Contractor of the
Advance;
-38-
bb) Delivery to the Project in undamaged condition
conforming to the approved Plans and Specifications and
in a condition which is ready for immediate installation
or adequate storage at the Project.
cc) evidence of appropriate insurance coverage insuring the
Materials while in storage and naming Lender as loss
payee; and
dd) Waivers and Release of Lien for all Materials included
in the previous Application For Payment.
(b) As to each Indirect Cost:
(i) A statement or invoice for the cost or service rendered and
such other supporting evidence as Lender may require to
substantiate the payment requested.
(c) As to each approved Advance for FF&E:
(i) invoices for the same passing good, merchantable title to the
FF&E to the Borrower and including in the sales price all
sales and use taxes, value added tax, goods and services tax
and any other applicable taxes due with respect to the FF&E,
all freight, shipping and delivery charges; and
(ii) evidence of appropriate insurance coverage insuring the FF&E
while in storage and naming Lender as loss payee; and
(iii) delivery in the name of the Borrower to the Project (or into a
bonded warehouse with prepaid storage fees with warehouseman's
receipt delivered to Lender) in undamaged condition conforming
to the approved Plans and Specifications and in a condition
which is ready for immediate installation or adequate storage
at the Project; and
(iv) in the case of FF&E installed in the Project Waivers and
Release of Lien for such installation.
(d) As to any FF&E Deposit:
(i) An invoice for the deposit from the FF&E Supplier with copy of
the Purchase Order for the item of FF&E each issued in the
name of the Borrower or its assigns.
Upon receipt of the forgoing together with the Application for Payment the
Lender will deliver to the Disbursing Agent:
i) The Application For Payment executed by the Borrower and approved by
the Lender including approval of accompanying documents.
ii) All Change Orders approved by the Borrower and Lender since the date
of the last Application For Payment.
-39-
iii) All Lien Waivers furnished.
Upon delivery, review and approval by the Disbursing Agent of the above
documentation the Disbursing Agent shall issue its downdate endorsement to the
Title Policy downdating coverage under the Title Policy to the date of
Disbursement and insuring the Lender as insured under the Title Policy that
a) It is has searched the public records;
b) No Liens have been filed as of the date of such new search;
and
c) All taxes which may become a lien against the Premises are
current.
Provided the conditions of the Construction Loan Agreement are met on the date
of an Advance and upon advice from the Disbursing Agent that it is satisfied
that the requirements of this Disbursing Agreement are met and issuance of the
required downdate endorsement to the Title Policy Lender shall advance to
Disbursing Agent the reimbursable Project Costs set forth in the Application for
Payment but excluding the Retainage hereinbefore specified.
10.2 Payment Methods. The Advances of the Loan shall bear interest from
and after the date of an Advance provided that in the event Disbursing Agent
shall fail to disburse any Advances within ten (10) business days after an
Advance, either the Borrower or Lender may request Disbursing Agent to return
said Advance to Lender and interest on such Advance shall xxxxx from and after
the date of such return. The Disbursing Agent shall prior to requesting that
Lender make the Advance have satisfied itself as to receipt of all matters it
requires to make the Advance and upon receipt of the Advance shall as promptly
as possible thereafter but not to exceed five (5) business days after receipt of
an Advance disburse the Advance so received from the Lender by making payment i)
in the case of Project Costs for Work done or for Materials supplied under the
General Contract by the Disbursing Agent's check payable to the Contractor or,
if Contractor shall fail to timely pay a Subcontractor or Supplier from such
disbursement and/or a Subcontractor or Supplier shall assert a lien for
non-payment of its contract then, at either Disbursing Agent's or Lender's
discretion, by the Disbursing Agent's check payable jointly to both the
Contractor and Subcontractors performing the Work and/or Suppliers supplying
Materials, ii) in the case of Project Costs for FF&E supplied or installed by
the Disbursing Agent's check payable to the Master Purchasing Agent or supplier,
as the case may be, iii) in the case of Indirect Costs by the Disbursing Agent's
check payable to the respective payee set forth in such Application For Payment,
provided, no payment shall be made in excess of the amount set forth in the
approved Application For Payment and provided further as to disbursement of the
Final Loan Balance, the Disbursing Agent shall make payment directly to each
payee only upon the furnishing of its Final Waiver and Release of Lien for the
Work or Materials provided. If the Borrower directly pays certain Project Costs
and the Lender and the Disbursing Agent approve, the Disbursing Agent may
disburse Loan proceeds deposited for payment of such Project Costs directly to
Borrower as a reimbursement for such payment; provided that all of the other
requirements of this Agreement, including but not limited to the furnishing of
waivers of lien with respect thereto, are fulfilled. Upon disbursement by the
Disbursing Agent the Disbursing Agent will issue its report to Lender setting
forth all payments made.
-40-
10.3 Disbursing Agreement. All Advances shall be disbursed pursuant to the
Disbursing Agreement and shall be secured by the Loan Documents.
10.4 Disbursement for Approved Project Costs Only. No disbursement will be
made for other than Project Costs set forth in the approved Budget and then not
to exceed the Line Items set forth therein.
11.
DISBURSEMENT OF FINAL LOAN BALANCE
11.1 Disbursement of Final Balance. At no time and in no event shall
Lender be obligated to disburse the final balance of the proceeds of the Loan
and any Retainage until:
(a) The General Contractor shall have provided a written statement
certifying that all Work has been completed and all conditions to be
performed under the General Contract have been fulfilled and there
is no reason that the General Contractor shall not be paid in full.
(b) The Project Architect shall have confirmed Final Completion of all
of the Work.
(c) Lender's Inspecting Architect shall have confirmed Final Completion
of all of the Work.
(d) The consent of any surety under any Bond bonding over the Work shall
have been obtained.
(e) Title shall have been furnished with Final Lien Waivers from all
Contractors waiving all rights to assert a Lien against the Premises
for all Work done and if required by Lender or Title, other data
establishing payment or satisfaction of obligations, such as
receipts, releases and waivers of liens, claims, security interests
or encumbrances arising out of the Work.
(f) Lender shall have received evidence that all of the terms,
provisions and conditions of this Agreement on the part of the
Borrower to be performed or caused to be performed through the date
of such final disbursement have been fulfilled to the satisfaction
of Lender.
(g) All remaining uncompleted "punch list" items shown on the
Certificate of Substantial Completion shall have been satisfactorily
completed.
(h) A Final Contractors Affidavit from the final contractor shall have
been delivered stating, if that be the fact, that all parties
furnishing labor, materials or service have been paid in full or, if
the fact be otherwise, showing the name of each party who has not
been paid in full and the amount due or to become due each party for
labor, service or materials furnished together with (i) Final Lien
Waivers from all parties set forth in the Final Contractors
Affidavit, (ii) Final Lien Waiver from the General Contractor, (iii)
Final Lien Waivers from all parties having provided a
-41-
Notice to Owner and (iv) written statement from the surety that the
Payment Bond is in full force and effect.
(i) Final Completion has occurred.
12.
EVENTS OF DEFAULT
It shall be an "Event of Default" under this Agreement on the happening of
any of the following:
12.1 Default Under Loan Documents. An Event of Default (as defined
thereunder) occurs under any of the Loan Documents; or
12.2 Failure to Complete Construction. Excepting for Force Majeure General
Contractor shall fail to commence construction within the time limits required
by this Agreement or the Project shall not be completed by the Completion Date;
or
12.3 Breach of Covenants. Borrower breaches or fails to perform, observe
or meet any covenant or condition of this Agreement and such breach or failure
is not cured within a period of fifteen (15) days thereafter; or
12.4 Breach of Representation or Warranty. Any representations or
warranties made or agreed to be made in any of the Loan Documents or this
Agreement shall be breached by Borrower or shall prove to be false or misleading
in any material respect; or
12.5 Filing of Liens Against the Premises. Any Lien shall be asserted or
filed against the Premises and such Lien shall not be released or bonded over
and stayed to Lender's satisfaction within five (5) days after the assertion or
filing thereof and shall continue unreleased and in effect for a period of sixty
(60) days; or
12.6 Litigation Against Borrower. Any suit shall be filed against Borrower
which (i) creates a stoppage of the Work or enjoins the ongoing construction or
(ii) which, if adversely determined, would substantially impair the ability of
the Borrower to perform its obligations under the Loan Documents or complete the
Work by the Completion Date, and which is not dismissed within fifteen (15) days
after its filing; or
12.7 Judgment, Writ, Attachment or Levy Upon the Premises. A judgment,
writ or warrant of attachment or execution or similar process, levy or seizure
be made under any process against the Premises and such action shall not be
released or bonded over to Lender's satisfaction within five (5) days after the
assertion or filing thereof and shall continue unreleased and in effect for a
period of sixty (60) days or more; or
12.8 Acceleration of Other Debts. Borrower does, or omits to do, any act,
or any event occurs, as a result of which any material obligation of Borrower,
not arising hereunder, may be declared due and payable by the holder thereof and
which continues uncured for fifteen (15) days thereafter and which materially
affects Borrower's ability to perform its obligations hereunder; or
-42-
12.9 Non-Permitted Transfers. In the event a Transfer shall occur which is
not permitted under the terms of the Mortgage; or
12.10 Abandonment. Excepting for Force Majeure the Project is abandoned or
Work thereon ceases or delays for a period of fifteen (15) days, or delays in
construction occur or construction is delayed for any period of time for any
reason whatsoever so that Completion of Improvements cannot be accomplished in
the judgment of Lender on or before the Completion Date; or
12.11 Bankruptcy of Borrower. The Borrower shall fail to pay its debts as
they become due, or shall make an assignment for the benefit of its creditors,
or shall admit in writing its inability to pay its debts as they become due, or
shall file a petition under any chapter of the Federal Bankruptcy Code or any
similar law, state or federal, now or hereafter existing, or shall become
"insolvent" as that term is generally defined under the Federal Bankruptcy Code,
or shall in any involuntary bankruptcy case commenced against it file an answer
admitting insolvency or inability to pay its debts as they become due, or shall
fail to obtain a dismissal of such case within ninety (90) days after its
commencement or convert the case from one chapter of the Federal Bankruptcy Code
to another chapter, or be the subject of an order for relief in such bankruptcy
case, or be adjudged a bankrupt or insolvent, or shall have a custodian, trustee
or receiver appointed for, or have any court take jurisdiction of its property,
or any part thereof, in any voluntary proceeding for the purpose of
reorganization, arrangement, dissolution or liquidation and such custodian,
trustee or receiver shall not be discharged, or such jurisdiction shall not be
relinquished, vacated or stayed within ninety (90) days of the appointment; or
12.12 Bankruptcy of Guarantor. The Guarantor shall fail to pay its debts
as they become due, or shall make an assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a petition under any chapter of the Federal Bankruptcy
Code or any similar law, state or federal, now or hereafter existing, or shall
become "insolvent" as that term is generally defined under the Federal
Bankruptcy Code, or shall in any involuntary bankruptcy case commenced against
it, file an answer admitting insolvency or inability to pay its debts as they
become due, or shall fail to obtain a dismissal of such case within ninety (90)
days after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in
such bankruptcy case, or be adjudged a bankrupt or insolvent, or shall have a
custodian, trustee or receiver appointed for, or have any court take
jurisdiction of its property, or any part thereof, in any voluntary proceeding
for the purpose of reorganization, arrangement, dissolution or liquidation and
such custodian, trustee or receiver shall not be discharged, or such
jurisdiction shall not be relinquished, vacated or stayed within ninety (90)
days of the appointment; or
12.13 Attachment. Any part of the Lender's commitment to make the advances
hereunder shall at any time be subject or liable to attachment, seizure,
garnishment or levy at the suit of any creditor of the Borrower or at the suit
of any Contractor or creditor of the Contractor; or
12.14 Destruction. Excepting for Force Majeure any part of the Project is
materially damaged or destroyed by fire or other casualty and within ten (10)
days thereafter (a) the loss shall prove not to be adequately covered by (i)
insurance actually collected or in the process of
-43-
collection and (ii) additional Owner Equity funds deposited with Lender and (b)
construction does not or cannot continue in a timely manner after such loss such
that the Project shall be completed by the Completion Date; or
12.15 Eminent Domain. The Premises shall be the subject of condemnation by
a Governmental Authority in an eminent domain proceeding or a temporary taking
adverse to Borrower that delays the construction of the Project beyond the
Completion Date or prevents the construction of the Project in accordance with
the Contract Documents; or
12.16 Change in Borrower/Guarantor Status. If the Borrower or Guarantor
shall be dissolved, liquidated or wound up or shall fail to maintain its
existence as a going concern in good condition; or
12.17 Default under Guaranty. If the Guarantor shall fail to keep or
perform any covenant, undertaking or agreement on its part under the Guaranty or
any separate guaranty, indemnity or other surety arrangement given in connection
with the Loan; or
12.18 Default under Construction Contract(s). If the Borrower shall fail
to meet or perform any condition of any Construction Contract(s) to which it is
a party prior to the expiration of any applicable grace period or such
Construction Contract(s) shall be terminated by the Contractor(s); or
12.19 Failure to Comply with Florida Statutes Sections 713 and 721.
Borrower shall fail to comply with any owner's obligations under Chapters 713
and 721, Florida Statutes and Equivalent Acts or any sales are suspended or
enjoined by the Department and remain suspended or enjoined for 15 days after
the Department takes such action.
12.20 Failure to Comply with Disbursing Agreement. Any party to the
Disbursing Agreement other than the Lender shall fail to comply with its
obligations thereunder.
12.21 Failure to Comply with Acts. Borrower shall fail to comply with the
Acts.
12.22 Department Withdrawal. The Department shall rescind or revoke any
approvals of the Timeshare Filing.
12.23 Injunction. There shall be issued any injunction, writ or cease or
desist order enjoining or preventing the sale of the Timeshare Units which
remains in place for 15 days after such issuance.
13.
REMEDIES OF LENDER
13.1 Exercise of Rights. Upon the Event of Default the Lender may at its
option exercise one or more of the following:
(a) Acceleration. Accelerate the repayment of the Loan.
-44-
(b) Foreclosure. Exercise any of the various remedies provided in any of
the Loan Documents, including the foreclosure of the Mortgage;
(c) Cumulative Rights. Cumulatively exercise all other rights, options
and privileges provided by law;
(d) Cease Making Advances. Cease making Advances and may instruct Title
to refrain from making any Advances under the Disbursing Agreement
but Lender may instruct Title to make Advances after the happening
of any such event without thereby waiving the right to refrain from
making other further Advances or to exercise any of the other rights
Lender may have.
(e) Receiver. Lender may seek the appointment of a receiver to take
possession of the Project and to operate the Project and to complete
the Project.
(f) Rights to Enter and Complete. Require Borrower to vacate the
Premises and Lender may, at its election, (whether prior to any sale
pursuant to a foreclosure of the Mortgage or during any period of
redemption) either through itself, its agents or a receiver
appointed by a court of competent jurisdiction:
(i) Do all things necessary to protect its interest in the Project
and the security afforded the Loan by a completed Project;
(ii) Enter into possession;
(iii) Perform or cause to be performed any and all Work and labor
necessary to complete the Project;
(iv) Employ security watchmen to protect the Premises;
(v) Take such action as necessary to prevent waste;
(vi) Comply with, effect a cure under and/or prevent a failure or
default under any Purchase Agreement;
(vii) Comply with, effect a cure under and/or prevent a failure or
default under the Construction Contract(s);
(viii) Comply with, effect a cure under and/or prevent a failure or
default under the Declaration;
(ix) Comply with, effect a cure under and/or prevent a failure or
default under the Timeshare Filing;
and in furtherance thereof the Borrower irrevocably, absolutely and
unconditionally agrees that Lender may disburse that portion of the Loan not
previously disbursed (including any Retainage) and such amounts as Lender may
deem necessary or appropriate to complete the Project and to protect the Project
and the lien of the Loan Documents and to do all of the things in connection
-45-
with the Project which Borrower may do in its own behalf and hereby appoints the
Lender as its attorney in fact to perform the foregoing. 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 and proceedings in
connection with the construction of the Project and to take such action and
require such performance as it deems necessary. In accordance therewith and upon
such Event of Default, Borrower hereby assigns and quitclaims unto Lender all
sums to be advanced hereunder including Retainage. Any funds so disbursed or
fees or charges so incurred shall be included in any amount necessary for
Borrower to pay to redeem the Premises after any foreclosure sale over and above
and notwithstanding the bid price at any foreclosure sale. BORROWER EXPRESSLY
ACKNOWLEDGES AND AGREES THAT THE FAILURE TO COMPLETE THE PROJECT WILL SUBJECT
THE LENDER TO IRREPARABLE HARM AND LOSS INCLUDING THE LOSS OF THE COMPLETED
PROJECT AS SECURITY FOR THE LOAN AND EXPRESSLY COVENANTS AND AGREES THAT UPON AN
EVENT OF DEFAULT IT WILL COOPERATE WITH THE LENDER IN THE LENDER'S EXERCISE OF
ITS REMEDIES HEREUNDER, WILL NOT OBJECT OR CONTEST THE EXERCISE OF LENDER'S
REMEDIES HEREUNDER AND EXPRESSLY WAIVES AND RELINQUISHES ANY RIGHT NOW OR
HEREAFTER EXISTING AT LAW, IN EQUITY OR BY STATUTE TO OBJECT TO THE EXERCISE BY
LENDER OF ALL OR ANY OF THE AFORESAID REMEDIES. BORROWER ACKNOWLEDGES THAT IT IS
REPRESENTED BY COUNSEL AND THE REMEDIES HEREIN AND THE CONTENT AND EFFECT OF
THIS WAIVER HAVE BEEN FULLY DISCUSSED WITH AND EXPLAINED BY COUNSEL AND EXECUTES
AND DELIVERS THIS WAIVER ONLY UPON A FULL UNDERSTANDING OF THE SAME AND THE
RIGHTS WAIVED HEREUNDER. BORROWER FURTHER UNDERSTANDS THAT LENDER HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT IN RELIANCE UPON THIS WAIVER AND THE RIGHT
TO EXERCISE SUCH REMEDIES AND BUT FOR SUCH WAIVER WOULD NOT MAKE THE LOAN.
13.2 Rights Non-Cumulative. No right or remedy by this Agreement or by any
Loan Document or instrument delivered by the Borrower pursuant hereto, conferred
upon or reserved to the Lender shall be or is intended to be exclusive of any
other right or remedy and each and every right and remedy shall be cumulative
and in addition to any other right or remedy or now or hereafter arising at a
law or in equity or by statute. Except as Lender may hereafter otherwise agree
in writing, no waiver by Lender or any breach by or default of Borrower of any
of its obligations, agreements, or covenants under this Agreement shall be
deemed to be a waiver of any subsequent breach of the same or any other
obligation, agreement or covenant, nor shall any forbearance by Lender to seek a
remedy for such breach be deemed a waiver of its rights and remedies with
respect to such a breach, nor shall Lender be deemed to have waived any of its
rights and remedies unless it be in writing and executed with the same formality
as this Agreement.
14.
GENERAL CONDITIONS AND MISCELLANEOUS
14.1 Rights of Third Parties. All conditions of the obligations of
Borrower hereunder are imposed solely and exclusively for the benefit of Lender
and no other person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to
-46-
assume that Lender will refuse to make advances in the absence of strict
compliance with any or all thereof, and no other person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by Lender at any time if in its
sole discretion it deems it desirable to do so. In particular, Lender makes no
representations and assumes no duties or obligations as to third parties
concerning the quality of the construction of the Improvements or the absence
therefrom of defects. In this connection, Borrower agrees to and shall indemnify
Lender from any liability, claims or losses resulting from the disbursement of
the Loan proceeds or from the condition of the Premises whether related to the
quality of construction or otherwise and whether arising during or after the
term of the Loan made by Lender to Borrower in connection therewith. This
provision shall survive the repayment of said Loan and shall continue in full
force and effect so long as the possibility of any such liability, claims or
losses exists.
14.2 Evidence of Satisfaction of Conditions. Any condition of this
Agreement which requires the submission of evidence of the existence or
non-existence of a specified fact or facts implies as a condition the existence
or non-existence, as the case may be, of such fact or facts, and Lender shall,
at all times, be free independently to establish to its satisfaction and in its
absolute discretion such existence or non-existence at its sole cost and expense
except as otherwise expressly provided in the Loan Documents.
14.3 Assignment. Borrower may not assign this Loan Agreement or any of its
rights or obligations hereunder, including the right to an Advance, without the
prior written consent of Lender.
14.4 Successors and Assigns Including in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be included and
all covenants and agreements contained in this Agreement by or on behalf of the
Borrower or by or on behalf of the Lender shall bind and inure to the benefit of
their respective heirs, legal representatives, successors and assigns, whether
so expressed or not.
14.5 Headings. The headings of the sections, paragraphs and subdivisions
of this Agreement are for the convenience of reference only, and are not to be
considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
14.6 Invalid Provisions to Affect no Others. If fulfillment of any
provision hereof, or any transaction related thereto at the time performance of
any 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 such clause or provision
shall be deemed invalid as though not herein contained, and the remainder of
this Agreement shall remain operative in full force and effect.
14.7 Number and Gender. Whenever the singular or plural number, masculine
or feminine or neuter gender is used herein, it shall equally include the other.
-47-
14.8 Amendments. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
14.9 Notices. Any notices and other communications permitted or required
by the provisions of this Instrument (except for telephonic notices expressly
permitted) shall be in writing and shall be deemed to have been properly given
or served by depositing the same with the United States Postal Service, or any
official successor thereto, designated as Certified Mail, Return Receipt
Requested, bearing adequate postage, or deposited with reputable private courier
or overnight delivery service, and addressed as hereinafter provided. Each such
notice shall be effective three (3) days after being deposited or delivered as
aforesaid. The time period within which a response to any such notice must be
given, however, shall commence to run from the date of receipt of the notice by
the addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice sent. By giving to the other party hereto at least
ten (10) days' notice thereof, either party hereto shall have the right from
time to time to change its address and shall have the right to specify as its
address any other address within the United States of America.
Each notice to Lender shall be addressed as follows:
MM&S Investments Corporation
Suite 3000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Vice President - Mortgage Department
Each notice to Borrower shall be addressed as follows:
Bluegreen Vacations Unlimited, Inc.
0000 Xxxxxxxxxx Xxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Director of Corporate Legal Affairs
14.10 Governing Law. Notwithstanding the place of execution of this
instrument, the parties to this instrument have contracted for Florida law to
govern this instrument and it is controllingly agreed that this instrument is
made pursuant to and shall be construed and governed by the laws of the State of
Florida without regard to the principles of conflicts of law.
14.11 Participation. Lender may in its sole and exclusive discretion issue
participations in the Loan and/or assign all or a portion of its obligations to
make the Loan to participant(s) in the Loan. The Lender may assign the Loan and
its rights and obligations to another lender or to a Person that the Lender
merges with, is merged into, or who acquires the assets of Lender or whose
assets are acquired by Lender. Lender may divulge all information received by it
from Borrower or any other source, including but not limited to information
relating to the Loan, to the Project and to Borrower, to any such participant(s)
and Borrower shall cooperate with
-48-
Lender, at Lender's expense, in satisfying the reasonable requirements of any
such participant(s) or other lenders for consummating such a purchase or
participation.
14.12 Consent to Jurisdiction. The Borrower submits and consents to
personal jurisdiction of the Courts of the State of Florida and the United
States District Court for the Southern District of Florida for the enforcement
of this instrument and waives any and all personal rights under the laws of any
state or the United States of America to object to jurisdiction in the State of
Florida. Litigation may be commenced in any state court of general jurisdiction
for the State of Florida or the applicable United States District Court located
in Florida, at the election of the Lender. Nothing contained herein shall
prevent Lender from bringing any action against any other party or exercising
any rights against any security given to Lender, or against the Borrower
personally, or against any property of the Borrower, within any other state.
Commencement of any such action or proceeding in any other state shall not
constitute a waiver of consent to jurisdiction or of the submission made by the
Borrower to personal jurisdiction within the State of Florida.
14.13 Counterparts. This instrument may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall constitute
one instrument, but in making proof hereof it shall only be necessary to produce
one such counterpart. The signatures to this instrument may be executed on
separate pages and when attached to this instrument shall constitute one
complete document.
14.14 Waiver. THE UNDERSIGNED WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH ANY PARTIES TO THIS INSTRUMENT ARE INVOLVED DIRECTLY OR
INDIRECTLY AND ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS INSTRUMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER, AND WHETHER
ARISING OR ASSERTED BEFORE OR AFTER THE DATE OF THIS INSTRUMENT.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT
WITH LENDER.
IN WITNESS WHEREOF, Borrower and Lender have hereunto caused these
presents to be executed on the date first above written.
Signed, sealed and delivered BLUEGREEN VACATIONS UNLIMITED
in the presence of these witnesses: INC., a Florida corporation
/s/ XXXXX XXXXX By: /s/ XXXXX XXXXX
--------------------------------------- ---------------------------
Printed name: XXXXX XXXXX Name: Xxxxx Xxxxx
Its: Vice President
/s/ XXXXXXX X. XXXXXX
---------------------------------------
Printed name: XXXXXXX X. XXXXXX
-49-
STATE OF FLORIDA )
) ss.
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this ________ of
April, 2002, by Xxxxx Xxxxx as Vice President of Bluegreen Vacations Unlimited,
Inc., a Florida corporation, on behalf of the corporation. He personally
appeared before me, is personally known to me or produced
____________________________________ as identification.
Notary:
----------------------------------
Print Name:
------------------------------
[NOTARIAL SEAL] Notary Public, State of Florida
My Commission expires:
-------------------
-50-
Signed, sealed and delivered MM&S INVESTMENTS CORPORATION
in the presence of these witnesses: a Minnesota corporation, doing business
in Florida as Xxxxxxxx Xxxxxx & Xxxxxxxxx
Investments Corporation
-----------------------------------
Printed Name:
By:
-------------------------------------
Name:
-----------------------------------
Printed name: Its:
-------------------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ________ of
April, 2002, by ________________________________, as ________________ of MM&S
INVESTMENTS CORPORATION, a Minnesota corporation, doing business in Florida as
XXXXXXXX XXXXXX & XXXXXXXXX INVESTMENTS CORPORATION, on behalf of the
corporation. He personally appeared before me, is personally known to me or
produced ____________________________________ as identification.
Notary:
----------------------------------
Print Name:
------------------------------
[NOTARIAL SEAL] Notary Public, State of Minnesota
My Commission expires:
-------------------
THIS DOCUMENT WAS PREPARED BY:
Xxxxxx X. Norwich
XXXXXXXXXXX XXXXX & XXXXXXXX LLP
3400 Plaza VII Building
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
TABLE OF EXHIBITS
Exhibit A - Budget
Exhibit B - FF&E Budget
Exhibit C -- Loan Release Schedule
Exhibit D -- Extract of Plans and Specifications
Exhibit E - Description of Premises
Exhibit F - Schedule of Unsold Units
-51-
EXHIBIT "A"
Budget
EXHIBIT "B"
FF&E Budget
EXHIBIT "C"
Loan Release Schedule
EXHIBIT "D"
Extract of Plans and Specifications
EXHIBIT "E"
Description of Premises
All of Solara Surfside Condominium according to the First Amendment to
Declaration of Condominium for the Bethel Beach Club Resort & Spa, a Condominium
(according to its Declaration of Condominium filed in Official Records Book
18155, Page 4177, of the public records of Miami-Dade County, Florida), which
First Amendment is filed in Official Records as Document Number 02R167439, as
further amended by the Second Amendment that is filed in Official Records as
Document Number 02R192554, of the public records of Miami-Dade County, Florida,
which Condominium constitutes al of Xxxx 00 xxx 00, Xxxxx 0, 0xx XXXXXXX XXXX OF
NORMANDY BEACH, Recorded in Plat Book 16, at Page 44 of the Public Records of
Miami-Dade County, Florida, and Condominium Parcels 105, 106, 201 through 210,
301 through 310, 401 through 410, 501 through 510, 601 through 610, and 701
through 710, and all common elements appurtenant thereto.
LESS AND EXCEPT those Timeshare Estates being described further in Exhibit A-1,
attached hereto and made a part hereof, which previously have been conveyed from
Condominium Parcels 306, 506, 701, 705, 706, 708 and 709.
Exhibit A-1
UNIT/WEEK UNIT/WEEK UNIT/WEEK UNIT/WEEK
501/6 FULL 706/6 FULL 708/26 EVEN 709/34 FULL
506/2 FULL 706/7 FULL 708/27 FULL 709/35 FULL
506/3 FULL 706/8 FULL 708/28 EVEN 709/41 FULL
506/4 FULL 706/9 FULL 708/28 ODD 709/43 EVEN
506/5/FULL 706/10 FULL 708/29 EVEN 709/46 EVEN
506/6 FULL 706/11 FULL 709/29 ODD 709/48 EVEN
596/7 FULL 706/12 FULL 708/30 FULL 709/51 FULL
506/8 FULL 706/13 FULL 708/31 EVEN 701/10 FULL
506/9 FULL 706/14 FULL 701/31 ODD 701/11 FULL
506/10 FULL 706/17 FULL 708/32 FULL 701/12 FULL
506/11 FULL 706/21 FULL 708/33 FULL 701/13 FULL
506/12 FULL 706/22 FULL 708/34 FULL 701/14 FULL
506/13 FULL 706/23 EVEN 708/35 FULL 701/15 FULL
506/14 FULL 706/24 FULL 708/36 FULL 701/16 FULL
506/15 FULL 706/25 FULL 708/37 EVEN 705/7 FULL
506/16 FULL 706/26 FULL 708/40 FULL 705/23 FULL
506/17 FULL 706/27 FULL 708/51 FULL 706/41 FULL
506/25 FULL 706/28 FULL 709/1 EVEN 706/42 FULL
506/26 FULL 706/31 FULL 709/2 FULL 708/5 ODD
506/27 EVEN 706/32 EVEN 709/3 EVEN 708/18 ODD
506/30 FULL 706/32 ODD 709/4 EVEN 708/46 FULL
506/31 FULL 706/33 EVEN 709/5 EVEN 709/7 EVEN
506/32 FULL 706/33 ODD 709/6 FULL 709/38 EVEN
506/50 FULL 706/34 EVEN 706/9 FULL 706/29 FULL
506/51 FULL 706/35 EVEN 709/11 FULL 706/30 FULL
506/32 FULL 706/36 FULL 709/13 FULL 701/11 FULL
701/3 FULL 706/37 EVEN 709/14 EVEN 701/12 FULL
701/4 FULL 706/40 EVEN 709/15 EVEN 701/13 FULL
701/9 EVEN 706/43 FULL 709/16 EVEN 701/14 FULL
701/26 EVEN 706/44 EVEN 709/18 EVEN 701/15 FULL
701/27 FULL 706/46 FULL 709/19 EVEN 701/16 FULL
701/31 EVEN 706/47 FULL 709/20 FULL 708/18 EVEN
705/1 FULL 706/48 FULL 709/22 EVEN 701/52 FULL
705/2 FULL 706/52 FULL 709/22 ODD 701/5 FULL
705/3 FULL 708/3 EVEN 709/23 ODD 701/6 FULL
705/4 FULL 708/5 EVEN 709/25 FULL 701/7 FULL
705/5 FULL 708/9 EVEN 709/26 EVEN 701/8 FULL
705/6 FULL 708/10 EVEN 709/26 ODD 705/8 FULL
705/12 FULL 708/14 FULL 709/27 ODD 506/28 FULL
705/13 FULL 708/15 EVEN 709/28 EVEN 708/39 FULL
705/15 FULL 708/16 EVEN 709/28 ODD 701/31 ODD
705/27 EVEN 708/19 FULL 709/29 EVEN 306/1-52 FULL
705/32 FULL 708/20 FULL 709/29 ODD
705/51 FULL 708/21 EVEN 709/30 EVEN
705/52 FULL 708/22 FULL 709/30 ODD
706/1 FULL 708/23 EVEN 709/31 EVEN
706/2 FULL 708/23 ODD 709/31 ODD
706/3 FULL 708/24 EVEN 709/32 FULL
706/4 FULL 708/25 EVEN 709/33 EVEN
706/5 FULL 708/25 ODD 709/33 ODD
EXHIBIT "F"
Schedule of Unsold Units
