EXHIBIT 4.7
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FIRST UNION NATIONAL BANK
FL6001
Commercial Real Estate
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
January 26, 2000
Weston Town Center, LLC
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Re: $20,000,000 Construction/Mini-Perm Loan for "The Shoppes of
Town Center" ("Project")
Dear Xx. Xxxxxxx:
We are pleased to advise you that First Union National Bank ("Lender") has
approved your request for financing subject to the terms and conditions
hereinafter set forth.
BORROWER: Borrower shall be Weston Town Center, LLC, a Delaware limited
liability company qualified to do business in Florida, owned and controlled
by Arvida/JMB Partners, L.P., a Delaware limited partnership.
TYPE AND AMOUNT OF LOAN: A construction mini/perm loan in the amount of
TWENTY MILLION DOLLARS ($20,000,000) (the "Loan").
PURPOSES: The primary purposes of the Loan are to provide funds for
Lender-approved hard and soft site development costs for The Shoppes of
Town Center and for Lender-approved hard and soft vertical construction
costs for The Shoppes of Town Center and as more particularly described on
the "Use of Proceeds Schedule" attached hereto as Schedule "I" and made a
part hereof.
PROJECT IMPROVEMENTS: The Project shall consist of The Shoppes of Town
Center, comprised of a retail shopping center with second floor office
space (the "Improvements") containing approximately 147,881 net leaseable
square feet anchored by a Publix Supermarket. The Improvements shall also
consist of a parking lot for an adjacent office development to be developed
by Borrower; however, such office development is not part of the
Improvements and, other than as to the parking lot, Lender has made no
commitment to provide financing for such office development. Lender shall
join in and consent to a parking lot access easement for the benefit of
such office development in form reasonably satisfactory to Lender.
Weston Town Center, LLC
January 26, 2000
Page 2
The Improvements shall be located on a parcel of approximately 23.80
plus/minus acres at the northwest corner of Arvida Parkway and Bonaventure
Boulevard in the City of Weston, Broward County, Florida, as more
particularly described on Exhibit "A" attached hereto and made a part
hereof ("Property").
GUARANTOR: The Loan shall require the unconditional guarantee of
Arvida/JMB Partners, L.P., a Delaware limited partnership for the payment
and lien-free performance of all obligations of Borrower to Lender under
the Loan.
The guarantee of Guarantor shall be unlimited as to the outstanding
principal balance and accrued interest but shall be reduced to the top
fifty percent (50%) of the total outstanding principal balance of the Loan
(without Lender being required to first proceed against its collateral),
plus all accrued interest at such time that: (a) the shell certificate of
occupancy for the Improvements constituting the local space at The Shoppes
of Town Center has been issued and the certificate of occupancy has been
issued for Publix Supermarket; (b) Borrower is in compliance with the
"Guarantee Reduction Pre-Leasing Requirement" (as hereinafter defined); and
(c) Publix Supermarket has taken occupancy of its space and commenced
paying rent (collectively, "First Guarantee Reduction Conditions"). For
example, in the event the total outstanding principal balance of the Loan
is $20,000,000 at the time of an "Event of Default" (which shall be deemed
to be any default which remains uncured after the giving of any required
notice and the expiration of any grace period, if otherwise applicable) by
Borrower thereunder and the First Guarantee Reduction Conditions are then
satisfied, then in such event, Guarantor shall guarantee the top
$10,000,000 of the total outstanding principal balance of the Loan plus all
accrued interest.
The Guarantee of Guarantor shall be further reduced to the top twenty-five
percent (25%) of the total outstanding principal balance of the Loan
(without Lender being required to first proceed against its collateral)
plus all accrued interest at such time that: (a) the Loan converts to the
"Mini-Perm Period" (as hereinafter defined); and (b) The Shoppes of Town
Center achieves "Stabilization" (as hereinafter defined) (collectively,
"Second Guarantee Reduction Conditions").
Notwithstanding the above, Xxxxxx shall not be entitled to receive more
than the Loan balance, plus any accrued interest, fees and costs.
The Guarantee Reduction Pre-Leasing Requirement shall be achieved at such
time that seventy percent (70%) of the net leaseable square feet of The
Shoppes of Town Center (of which 37,887 net leaseable square feet may be
credited by the Publix Lease) is pre-leased under Lender-approved leases
(not to be unreasonably withheld) with terms of not less than five (5)
years and at minimum rents and CAM rates not less than pro-forma minimums.
"Stabilization" shall occur when: (a) the Loan converts to the Mini-Perm
Period; (b) The Shoppes of Town Center achieves a minimum debt coverage
ratio ("DCR") of 1.25X for six (6) consecutive months; and (c) the loan to
value of The Shoppes of Town Center does not exceed seventy-five percent
(75%) of the stabilized value of The Shoppes of Town Center. For purposes
of calculating
Weston Town Center, LLC
January 26, 2000
Page 3
the DCR, "Rental Income" shall be based on the lesser of actual occupancy
or 93%; however, occupancy must not be less than 80%. "Expenses" shall be
based on the greater of: (a) actual expenses inclusive of replacement
reserves and management fees, or (b) the sum of(i) operating expenses of
$5.60 per net leaseable square foot, plus (ii) replacement reserves of
$0.25 per net leaseable square foot, plus (iii) management fees equal to
the greater of actual or 4% of effective gross income. "Debt Service" shall
be based on the then outstanding principal balance, plus any unfunded
commitment, of the Loan, a 25 year amortization, and an interest rate equal
to the 10 year Treasury plus 2.50% per annum.
In addition, Guarantor shall also be liable at all times for, and shall
indemnify, defend and hold Lender harmless, limited as follows, from and
against any and all loss, cost, expense, damage, claim or other obligation
(including without limitation reasonable attorneys' fees and costs of
defense) incurred or suffered by Xxxxxx and arising out of or in connection
with the matters listed in subparagraph (a) through (f) immediately below
(collectively, "Lender's Costs and Damages"):
a. misapplication by Borrower of insurance proceeds, condemnation
proceeds, security deposits and rents received by Xxxxxxxx and not applied
in accordance with the "Loan Documents" (as hereinafter defined);
b. damages to Lender arising from any fraud, malfeasance, or any
material misrepresentation by Borrower or Guarantor related to the Loan
(limited as to Guarantor to Lender's actual out-of-pocket damages,
including the outstanding principal balance of the Loan, together with
accrued unpaid interest, and Xxxxxx's reasonable third-party out-of-pocket
expenses, including reasonable attorney's fees and costs);
c. damages arising from the existence of hazardous or toxic
substances upon any real property securing the Loan due to the failure of
Borrower to comply with environmental laws limited as to Guarantor in an
amount not to exceed the sum of: (i) the cost of remediation in compliance
with all federal, state or local environmental statutes, regulations, rules
or ordinances, including any penalties, fines or assessments in connection
therewith; and (ii) any other actual out-of-pocket damages incurred by
Lender relating to the presence, release or discharge of toxic or hazardous
substances, petroleum or petroleum products, chemicals, pollutants, or
other contaminants on or from the Property, including reasonable attorneys'
fees and costs and any penalties, provided that Lender shall utilize a law
firm from among its usual and customary law firms, and that such counsel
shall be reasonably satisfactory to Borrower.
d. any debt obligation or liability solely related to the Loan of
which Borrower shall be relieved (whether voluntary or involuntary) as a
result of the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law or otherwise);
however, the foregoing shall be limited to the extent that Guarantor would
have been otherwise liable for same under the Guaranty.
Weston Town Center, LLC
January 26, 2000
Page 4
e. all sums reasonably advanced by Xxxxxx pursuant to the terms of
the Loan Documents (other than original proceeds of the Loan) whether for
the payment of taxes, preservation of collateral, etc. which may be
included in or added to the principal indebtedness of Borrower under the
Loan; and
f. all obligations of Borrower to Lender in connection with any
ISDA Master Agreement, Schedule to the Master Agreement, Confirmation
Letter and any other documents executed in connection therewith.
Guarantor hereby acknowledges and shall acknowledge at the Closing that
Guarantor is solvent, Guarantor is receiving substantially equivalent value
in return for guaranteeing the obligations of Borrower and Guarantor's
guarantees do not violate any lending restrictions imposed upon such
Guarantor by a third party or governmental authority.
This Commitment and the Loan Documents as pertaining to Borrower and
Arvida/JMB Partners, L.P. (collectively "ARVIDA") shall only be enforceable
against ARVIDA and, notwithstanding anything to the contrary in this
Commitment and/or the Loan Documents, no present or future "Constituent
Partner" (as defined herein) in or "Affiliate" (as defined herein) of
ARVIDA, nor any Affiliate of any person that is or becomes a Constituent
Partner in ARVIDA, shall be personally liable, directly or indirectly,
under or in connection with this Commitment and/or the Loan Documents, or
any document, instrument or certificate securing or otherwise executed in
connection with this Commitment and/or the Loan Documents, or any
amendments or modifications to any of the foregoing made at any time or
times, heretofore or hereafter, or in respect of any matter, condition,
injury or loss related to this Commitment and/or the Loan Documents or the
Improvements; and the Lender and each of its successors and assignees
waives and does hereby waive any such personal liability. For purposes of
this Commitment and/or the Loan Documents, and any such instruments and
certificates, and any such amendments and modifications, neither the
negative capital account of any Constituent Partner in ARVIDA, nor any
obligation of any Constituent Partner in ARVIDA to restore a negative
capital account or to contribute capital to ARVIDA or to any other
Constituent Partner in ARVIDA, shall at any time be deemed to be the
property of or an asset of ARVIDA or such other Constituent Partner and
neither the Lender nor any of its successors or assignees shall have any
right to collect, enforce or proceed against or with respect to any such
negative capital account or a Constituent Partner's obligation to restore
or contribute. As used in this Paragraph, a "Constituent Partner" in ARVIDA
shall mean any direct partner or member in ARVIDA and any person that is a
partner or member in any partnership or limited liability company that,
directly or indirectly, through one or more other partnerships or limited
liability companies, is a partner or member in ARVIDA. As used herein,
"person" means any individual, partnership, corporation, limited liability
company, trust or other entity. The provision of this Paragraph shall
survive the Closing.
Weston Town Center, LLC
January 26, 2000
Page 5
"Affiliate" of a specified person or entity for the purposes of this
Commitment and/or Loan Documents, means (i) a director, trustee, officer,
employee, agent, partner, member, shareholder, subsidiary, or attorney of
such entity, or (ii) a person or entity which (either directly or
indirectly, through one or more intermediaries) controls, is under common
control with or is controlled by such person or entity, or (iii) any person
or entity that, directly or indirectly, is the beneficial owner of ten
percent (10%) or more of any class of voting securities (or otherwise has a
substantial beneficial interest) in such entity or of which such person or
entity is directly or indirectly the beneficial owner of ten percent (10%)
or more of any class of voting securities (or in which such person or
entity has a substantial beneficial interest), or (iv) any person or entity
that is a director, trustee, officer, employee, agent, partner, member,
shareholder, subsidiary or attorney of any of the foregoing. For purposes
of this definition, control of a specified person or entity (including the
correlative terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of the specified person or entity,
whether through ownership of voting securities, the ability to appoint the
majority of an entity's trustees, directors or persons in a similar
capacity, or otherwise. For purposes of applying this definition, the
managing partner of a general partner or limited partnership will be deemed
to be in control thereof provided such managing partner possesses the power
to direct or cause the direction of the management and policies of the
partnership.
INTEREST RATES: The Promissory Note evidencing the Loan, in the original
principal amount of $20,000,000 ("Note") to be executed by Borrower in
favor of Xxxxxx at the Closing, shall bear interest on the entire disbursed
and unpaid principal balance from time to time outstanding at a rate equal
to 1 month LIBOR plus one hundred eighty (180) basis points ("LIBOR-Based
Rate") as reasonably determined by Lender in the manner described below
prior to the commencement of each "Interest Period" (as hereinafter
defined). Interest shall be computed on the outstanding principal balance
for the actual number of days which have elapsed from the date of each
advance, calculated on the basis of a three hundred sixty (360) day year.
The LIBOR-Based Rate shall remain in effect, subject to the provisions
hereof, from and including the first day of the Interest Period to and
excluding the last day of the Interest Period for which it is determined.
"LIBOR" means, with respect to each day during each Interest Period,
the rate for U.S. dollar deposits of that many months maturity as reported
on Telerate page 3750 as of 11:00 a.m., London time, on the second London
business day before the relevant Interest Period begins (or if not so
reported, then as reasonably determined by Lender from another recognized
source or interbank quotation).
"Interest Period" means, initially, the period commencing on the date
of Closing and ending on the first "Payment Date" (as hereinafter defined),
and thereafter, each period commencing on the last day of the immediately
preceding Interest Period and ending on the next Payment Date, provided,
(i) any Interest Period that would otherwise end on a day which is not a
New York business day shall be extended to the next New York business day,
unless such extension would carry such Interest Period into the next month,
in which event such Interest Period shall end on the preceding New York
business day; (ii) any Interest Period that ends in a month for which there
is
Weston Town Center, LLC
January 26, 2000
Page 6
no day which numerically corresponds to the Payment Date shall end on the
last New York business day of such month, and (iii) any Interest Period
that would otherwise extend past the "Maturity Date" shall end on the
"Maturity Date" (as the "Maturity Date" is defined below).
However, commencing upon satisfaction of the First Guarantee Reduction
Conditions and subject to the Loan being in good standing, the Note shall
bear interest on the entire disbursed and unpaid principal balance from
time to time outstanding at a rate equal to one month LIBOR plus one
hundred seventy (170) basis points (which shall become the new LIBOR-Based
Rate). Further, commencing upon satisfaction of the Second Guarantee
Reduction Conditions and subject to the Loan being in good standing, the
LIBOR-Based Rate shall be further reduced to one month LIBOR plus one
hundred fifty (150) basis points (which shall become the new LIBOR-Based
Rate).
DEFAULT RATE OF INTEREST UNDER LOAN: Upon the occurrence of any "Event of
Default" by Borrower under the Loan Documents after the giving of any
required notice and the expiration of any grace period, if any [regardless
of whether or not the Maturity Date is accelerated], the Note shall bear
interest until such Event of Default is cured at five percent (5%) per
annum in excess of the Note interest rate then in effect whereupon, at the
time such Event of Default is cured, the interest rate shall return to the
rate existing immediately prior to the time of such Event of Default.
Specifically as to payment obligations by Borrower under the Note, there
shall be a five (5) day grace period without any notice required from
Lender.
INTEREST RATE HEDGE OPTIONS: At Borrower's option, Borrower may hedge the
floating interest rate of the Note during the term by maintaining an
interest rate hedge agreement ("Hedge") with Lender or another financial
institution reasonably acceptable to Lender in a notional amount equal to
the principal indebtedness under the Note, with Borrower paying a fixed
rate under the Hedge and receiving a floating rate, all on terms and
subject to such conditions as shall be reasonably acceptable to Lender.
In the event Borrower chooses to obtain the Hedge from Lender, then
at Closing (however, a cap or collar may be used in lieu of a fixed rate
hedge), Borrower shall be required to execute documentation as deemed
necessary by Lender to document the Hedge, all in form provided by Xxxxxx,
including the ISDA Master Agreement. The Mortgage shall not be satisfied of
record while Xxxxxxxx's obligations under the ISDA Master Agreement remain
unsatisfied. In the event Xxxxxxxx chooses to obtain the Hedge from
Lender, the Mortgage and all other security documents executed by Borrower
securing the Note shall also secure Borrower's obligation under the ISDA
Master Agreement. Additionally, Xxxxxxxx's attorney shall furnish an
opinion of counsel relating to such documents in substantially the same
form provided by Lender or alternatively shall provide appropriate
partnership and corporate resolutions.
REPAYMENT SCHEDULE: Interest only shall be due and payable by Borrower to
Lender monthly on the first day of each month (each a "Payment Date")
commencing on the first day of the first full month following the Closing
and continuing on the first day of each of the next eleven (11) succeeding
months thereafter for a period of twelve (12) months from the first full
month following the Closing ("Construction Period"). Commencing on the
first day of the thirteenth (13th) full month following the Closing (each
also a "Payment Date") and continuing on the first day of each of the next
twenty-three (23) succeeding months thereafter ("Mini-Perm Period"),
monthly principal and
Weston Town Center, LLC
January 26, 2000
Page 7
interest payments based on the then outstanding principal balance, plus any
unfunded commitment, a 25 year amortization and an assumed interest rate
based on the 10 year Treasury plus two hundred fifty (250) basis points
shall be due and payable by Borrower to Lender until the Maturity Date.
TERM OF THE LOAN:
The outstanding principal balance of the Note, together with accrued unpaid
interest, shall be due and payable by Borrower to Lender on the third
anniversary date of Closing ("Maturity Date").
Prior to the commencement of the Mini-Perm Period, Borrower must have
satisfied all of the following conditions:
(1) At the commencement of the Mini-Perm Period, no "Event of
Default" by Borrower shall exist under any of the Loan
Documents and no event or circumstance shall exist which, with
the giving of notice or lapse of time or both, would constitute
such a default by Borrower thereunder;
(2) The Improvements shall have been completed lien-free (except
for any liens temporarily permitted by the Construction Loan
Agreement) in substantial compliance with the terms of the
Construction Loan Agreement to be executed between Borrower and
Lender at Closing ("Loan Agreement") and in substantial
accordance with plans and specifications as approved by Lender;
(3) A Certificate of Occupancy shall have been issued for the
Publix Supermarket and a shell Certificate of Occupancy shall
have been issued for the balance of the space; and
(4) Publix Supermarkets, Inc. shall have taken occupancy pursuant
to the "Publix Lease" (as hereinafter defined) and commenced
paying rent to Borrower.
In the event Borrower fails to satisfy the conditions to
commencement of the Mini-Perm Period by the termination date of
the Construction Period, the Maturity Date shall be the
termination date of the Construction Period. The termination
date of the Construction Period shall be extended for up to
twenty-four (24) months due to construction delays caused by
force majeure outside the control of Borrower, provided the
Loan is in good standing and Borrower demonstrates to Lender's
reasonable satisfaction that all of the following conditions
have been satisfied (in which case the commencement date of the
Mini-Perm Period shall begin upon the termination date of the
Construction Period as extended, thereby causing the Maturity
Date to be adjusted accordingly):
(1) Available insurance proceeds cover one hundred percent
(100%) of the hard and soft costs to be incurred by
Borrower in restoring damage to the Improvements caused
by force majeure (or, if not, Borrower demonstrates to
Lender's reasonable satisfaction that Borrower has
available cash reserves to cover the balance of such
costs); and
Weston Town Center, LLC
January 26, 2000
Page 8
(2) Available insurance proceeds cover one hundred percent
(100%) of Xxxxxxxx's interest expense under the Loan
during the period of the Loan term extended by force
majeure (or, if not, Borrower demonstrates to Lender's
reasonable satisfaction that Borrower has available
cash reserves to cover the balance of such costs);
and
(3) Publix Supermarkets, Inc. shall not be entitled to
terminate the Publix Lease (nor be entitled to receive
any consideration from Borrower) due to the delay in
completion of the Improvements due to force majeure; and
(4) Guarantor shall maintain in good standing its legal
existence through the Maturity Date of the Loan as
adjusted due to force majeure.
PREPAYMENT: The Note may be prepaid in whole or in part at any time;
however, Borrower shall indemnify Lender against Lender's loss or expense
in employing deposits as a consequence (a) of Borrower's failure to make
any payment when due under the Note, or (b) any prepayment of the Note on a
date other than the last day of the Interest Period ("Indemnified Loss or
Expense"). The amount of such Indemnified Loss or Expense shall be the
actual cost incurred by Lender to break its contract, if any, in the London
interbank market. Any prepayment shall include accrued and unpaid interest
to the date of prepayment on the principal amount prepaid and all other
sums due and payable under the Note. All payments received on the Note may
be applied in such order as Lender, in its sole discretion, shall
determine. Should Borrower exercise the Hedge with Lender, then in the
event of prepayment in whole or in part of the Note subject to the Hedge
and the collateral is released, the Hedge must be unwound. In the event the
Hedge is unwound, a "Breakage Fee" may be due and payable to Lender.
COMMITMENT FEE: Borrower shall pay to Lender a commitment fee in the amount
of One Hundred Fifty Thousand Five Hundred Dollars ($150,000) for the Loan
with One Hundred Thousand Dollars ($100,000) of the commitment fee payable
to Lender upon Xxxxxxxx's acceptance of this Commitment and the balance
payable by Borrower to Lender at Closing. The commitment fee shall be
deemed earned upon Xxxxxxxx's acceptance of this Commitment Letter and
shall be refundable only if Borrower and Guarantor have complied with the
conditions specified herein for Closing but the Loan fails to close due to
a reason outside the control of Borrower or Guarantor, in which event the
portion of the commitment fee paid by Borrower shall be returned to
Borrower.
SECURITY AND DOCUMENTATION FOR LOAN: Amounts funded by Lender under the
Note shall be secured by a Mortgage and Security Agreement ("Mortgage"), an
Assignment of Leases, Rents, Deposits, Profits, Permits, Approvals,
Licenses, Warranties and Agreements ("Assignment") and a UCC-1 Financing
Statement ("Financing Statement") encumbering the Property. The Mortgage
shall be a first lien on the Property and on all equipment, fixtures,
building materials, personal property and general intangibles owned by
Borrower in connection therewith. In addition, Xxxxxx shall be granted a
first priority collateral assignment by Borrower of all leases, rents,
deposits, permits and construction, architectural and engineering contracts
relating directly to the Property, including, but not limited to, all
developmental approvals, density allocations, land development, building
permits, utility agreements and any concurrency exemptions to further
secure the Loan.
Weston Town Center, LLC
January 26, 2000
Page 9
At Closing, Xxxxxxxx and Xxxxxxxxx shall also execute an Affidavit and
Indemnity of Xxxxxxxxx and Guarantor Regarding Hazardous or Toxic Materials
("Affidavit"), a General Subordination and Assignment as to any loans to
Borrower from Guarantor or related entities ("Subordination") and such
other documents deemed necessary by Xxxxxx. Guarantor shall further execute
at Closing the "Guarantee" of the Loan limited to the extent specifically
referenced above upon the occurrence of certain conditions. The Note,
Mortgage, Loan Agreement, Assignment, Affidavit, Subordination, Guarantee,
this Commitment Letter, and all other documents deemed necessary by Lender
in connection with the Loan shall be referred to as the "Loan Documents"
and shall be prepared by Xxxxxx's counsel and shall be in a form reasonably
satisfactory to Lender, Borrower and Guarantor.
Any Event of Default by Borrower under any of the Loan Documents, including
the Note, after the expiration of any applicable notice and grace period,
if any, shall, at the option of Lender, constitute a default by Borrower
under each of the other Loan Documents.
UCC FINANCING STATEMENTS: As additional collateral, Lender will require UCC
filings in order to perfect its first lien on all equipment, fixtures,
personal property and general intangibles owned by Borrower in connection
with the maintenance and operation of the Project. These filings shall be
made in Broward County, Florida and with the Florida Secretary of State's
office. In addition, Lender will require documentation evidencing
compliance with Xxxxxx's requirement that no liens, prior to Lender's, have
been filed on such equipment, fixtures, personal property and general
intangibles.
EQUITY REQUIREMENT: Borrower shall supply evidence satisfactory to Lender
of source (whether from Borrower's cash reserves or future cash calls on
its partners or another source approved by Lender) and sufficiency of funds
to complete construction of the Improvements in accordance with final plans
and specifications as approved by Lender. As to any line items on the Use
of Proceeds Schedule attached hereto as Schedule I which shall be funded in
part by Borrower and in part by Lender, Borrower must fund all of
Borrower's portion of such line item before Lender commences the funding of
Xxxxxx's portion of such line item.
ALLOCATION OF PROCEEDS OF THE LOAN: Proceeds of the Loan shall be allocated
as set forth on the Use of Proceeds Schedule attached hereto as Schedule I.
No other substitution of funds from one category to another shown on
Schedule I hereto shall be allowed, unless Lender, in its reasonable
discretion, approves such substitution in writing and there are sufficient
Loan proceeds in each line item as reallocated to complete the scope of
work and all affected parties are notified in writing as required by law.
All draw requests under the Loan shall also be subject to the review and
approval of Lender and draw requests shall be funded, if possible, within
five (5) business days of receipt by Lender of all required information and
Xxxxxx's reasonable approval of same. The construction contracts for site
development of the Project and for the vertical improvements constituting
The Shoppes of Town Center shall require a ten percent (10%) retainage.
Notwithstanding the foregoing, the applicable retainage for each hard-cost
line item shall be released
Weston Town Center, LLC
January 26, 2000
Page 10
within thirty (30) days of satisfactory completion of all work represented
by such line item, including receipt of all necessary governmental
approvals.
Xxxxxx reserves the right to make disbursements under the Loan through a
disbursement agent, such as a title company, at the expense of Borrower. If
at any time the unfunded balance of the Loan allocated for a particular
line item is insufficient to cover the approved budgeted cost of such line
item, the overrun shall be paid by any excess funds left: (i) first in a
complete line item; (ii) next in any line items which Borrower can
reasonably demonstrate will contain an excess balance once such item is
completed and approved by Xxxxxx's inspector; and then (iii) by an infusion
of Borrower's funds prior to Lender making further disbursements under the
Loan.
The maximum amount of the Loan shall not exceed seventy-five percent (75%)
of the stabilized appraised value of The Shoppes of Town Center.
Prior to Closing, the Plans and Specifications for The Shoppes of Town
Center with hard costs breakdown must be approved by Lender, which approval
shall not be unreasonably withheld. Prior to Closing, Lender shall require
an inspector designated by Lender (the "Inspector") to review and approve
any or all of the following items for The Shoppes of Town Center, if
otherwise applicable: (i) Cost Budget; (ii) Plans and Specifications; (iii)
a Construction Activity Schedule; (iv) Construction Contracts; (v)
Architectural Contracts; (vi) Engineering Contracts; and (vii) such other
documents as the Inspector may reasonably require. Inspector must submit an
acceptable "Front- end" analytical report for The Shoppes of Town Center to
Lender prior to Closing. Lender shall require the Inspector to review and
approve all progress draw requests based on the percentage of work
completed and the cost-to-complete. Inspector's reviews, approvals, and
conclusions shall be for the sole benefit of Xxxxxx. In the event Xxxxxx
designates an independent consulting architect/engineer to perform the
inspection services described above, or any other consulting services,
including Xxxxxx's in-house inspector, all reasonable costs for said
architect/engineer shall be paid for by Xxxxxxxx. The costs to be paid by
Borrower for the services of Xxxxxx's in-house inspector for the
"Front-end" report for The Shoppes of Town Center shall be $1,300 payable
by Borrower to Lender at Closing and the per draw fee shall be $350 payable
by Borrower to Lender at the funding of each draw.
CONSTRUCTION CONTRACTS, COMMENCEMENT/COMPLETION OF CONSTRUCTION:
All construction contracts executed by Borrower for the Project which
require the expenditure by Borrower of sums greater than $50,000 shall be
subject to the reasonable approval of Lender. Construction of the vertical
Improvements constituting The Shoppes of Town Center shall commence on or
before the date specified in the Publix Lease (as may be extended therein
due to force majeure); otherwise Lender shall have the right to terminate
its obligations relating to the Loan. Start of construction is defined to
be the date of commencement of the site work. All Improvements constituting
The Shoppes of Town Center, including, but not limited to, building,
parking, paving,
Weston Town Center, LLC
January 26, 2000
Page 11
landscaping, city water and sewer lines and electrical lines (but excluding
interior tenant improvements for any space not leased) are to be completed
on or before the earlier of: (a) the date specified in the Publix Lease (as
may be extended therein due to force majeure) or (b) the commencement of
the Mini-Perm Period. Said completion is to be evidenced by a certificate
of completion from Borrower, the general contractor and Xxxxxxxx's
supervising architect or engineer concurred to by the Inspector, by a
certificate of completion of the buildings by governmental authorities
having jurisdiction, and by the issuance of certificates of occupancy by
governmental authorities having jurisdiction for that portion of space in
the buildings which are leased and occupied by tenants.
Borrower represents to Lender that, to the best of Xxxxxxxx's knowledge and
belief after reasonable inquiry, the commencement and completion of the
Improvements shall not be delayed in any manner by any state or county
"concurrency" statute (whereby certain improvements cannot be commenced or
completed unless and until public infrastructure improvements in the area
are completed).
LEASES FOR THE SHOPPES OF TOWN CENTER: Closing is contingent upon Borrower
entering into a Lease with Publix Supermarkets, Inc. ("Publix Lease") for
at least 37,887 leaseable square feet at The Shoppes of Town Center
providing for minimum rent of not less than $10.50 per square foot plus CAM
of not less than $3.50 per square foot on an annual basis. The initial term
of the Publix Lease shall be not less than twenty (20) years. The Publix
Lease shall be subject to the reasonable approval of Lender.
Closing is also contingent upon not less than 86,200 net leaseable square
feet of The Shoppes of Town Center (of which 37,887 net leaseable square
feet may be credited by the Publix Lease) being pre-leased under
Lender-approved leases (not to be unreasonably withheld) with terms of not
less than five (5) years and at minimum rents and CAM rates not less than
pro-forma minimums.
Borrower shall prepare and furnish Lender with a proposed standard lease
("Lease") for space for Lender's approval (not to be unreasonably
withheld). With respect to Leases, Xxxxxx shall have the right to review
and approve all Leases in excess of 2,500 net leaseable square feet prior
to Borrower executing same (Xxxxxx's approval not to be unreasonably
withheld and/or delayed). The Publix Lease and all other Leases shall be
subordinate to the Mortgage and collaterally assigned to Lender. Upon
request of Xxxxxxxx, Xxxxxx shall execute Publix's Standard form of
Subordination, Non-Disturbance and Atonement Agreement as to the Publix
Lease.
THE SHOPPES OF TOWN CENTER OUTPARCEL: Prior to Closing, Borrower must
submit for Xxxxxx's approval, which shall not be unreasonably withheld
and/or delayed, any easements over the Property deemed necessary for the
development of the Outparcel. Borrower represents to Lender that the
Outparcel is under contract to be sold to Bank America with a deed
restriction requiring the Outparcel to be utilized as a retail banking
facility for a certain number of years.
Weston Town Center, LLC
January 26, 2000
Page 12
SPECIAL CONDITIONS TO BE SATISFIED BY BORROWER:
(1) Prior to Closing, Borrower shall submit to Lender true and
complete copies of the organizational documents of Xxxxxxxx and the
Partnership Agreement of Guarantor, together with all amendments thereto,
if any, and the organizational documents for Arvida/JMB Managers, Inc. a
Delaware corporation, the sole general partner of Guarantor. Prior to
Closing, Borrower shall supply to Lender good standing certificates for
Borrower, Guarantor and its general partner.
(2) Prior to Closing, Borrower shall furnish Lender a Rent Roll for
The Shoppes of Town Center certified by Borrower to be true, correct and
complete in all material respects. Prior to Closing, Borrower shall provide
a Certificate to Lender certifying whether or not all existing leases
contain automatic subordination provisions subordinating tenants' leasehold
interests to the lien and operation of Lender's Mortgage and other security
instruments. All existing leases shall be subordinate to Xxxxxx's Mortgage
and collaterally assigned to Lender at Closing. Prior to Closing, Borrower
shall furnish to Lender tenant estoppels from tenants which collectively
comprise 75% of the Improvements pre-leased prior to Closing in form and
content reasonably satisfactory to Lender.
(3) Borrower shall, throughout the term of the Loan, promptly
submit or cause to be submitted to Lender photocopies of all tenant leases
and side agreements as to The Shoppes of Town Center. Borrower shall submit
to Lender written Rent Rolls on a quarterly basis or as otherwise requested
by Lender upon the occurrence of an "Event of Default" under the Loan
Documents. Such Rent Rolls shall specify those portions of space leased,
space designation, lease amount for each space leased, amount of any
deposits, name and address of the lessee, amount of space leased during the
preceding reporting period, any rent abatements or concessions and any
other information relevant to the leasing program reasonably requested by
Xxxxxx. All reports shall be in form satisfactory to Lender. All new
leases or renewals or modifications of existing leases shall be subordinate
to Lender's Mortgage and other security instruments and collaterally
assigned to Lender.
(4) The principal operating accounts for the Project shall be
maintained with Lender until the Note is repaid to Lender in full.
(5) Tax returns and financial statements of Xxxxxxxx (and each
general partner, if applicable) with a statement of contingent liabilities
must be "Presented To" Lender on an annual basis, together with an
operating/income statement relating solely to the Project.
(6) Prior to Closing and annually thereafter, tax returns and the
financial statement (with a statement of contingent liabilities) of
Guarantor and its general partner must be "Presented To" Lender.
Weston Town Center, LLC
January 26, 2000
Page 13
(7) Prior to Closing, Borrower shall provide to Lender an Opinion
of Counsel as to the legality, validity, binding effect and enforceability
of all Loan Documents and such other matters as may be reasonably requested
by Xxxxxx.
(8) Prior to Closing, evidence of site plan and zoning approvals
for the Project and evidence that all governmental approvals necessary for
Borrower to commence site development for the Project must be furnished to
Lender. Prior to Closing, Borrower shall provide to Lender evidence
satisfactory to Lender as to the status of concurrency, the availability of
water and sewer service, and all other utilities and any surface water
and/or "wetlands" permitting from DNRP, the Army Corps of Engineers and the
applicable water management district or other applicable governmental
entity.
(9) At all times during the term of the Loan, the Project shall be
in substantial compliance with all applicable governmental laws, rules and
regulations.
(10) Prior to Closing, Borrower shall provide to Lender any such
additional items not otherwise required by this Commitment as may be
reasonably set forth by letter to Borrower from Lender or Xxxxxx's Counsel
(on behalf of Lender), together with those items contained in the Standard
Loan Terms and Conditions and Additional Standard Loan Terms and Conditions
for Construction Loan Commitments attached hereto and by this reference
made a part hereof.
MORTGAGEE TITLE INSURANCE AND SURVEY:
(1) Prior to Closing, Lender requires receipt of a Mortgagee Title
Insurance Commitment ("Title Commitment") in the amount of Twenty Million
Dollars ($20,000,000). Commonwealth Land Title Insurance Company has been
approved by Lender to issue the Title Commitment. Xxxxxx is to be named as
the insured mortgagee.
(2) The Title Commitment should show the Lender's Mortgage to be
subject only to those liens which are to be paid off prior to the Closing
or at Closing. All leases shall be shown as subordinate matters. Xxxxxx's
Mortgage must constitute a first lien once the Loan closes. There are to be
no exceptions other than current year's taxes and assessments not yet due
and payable, assessments made by the Indian Trace District not yet due and
payable and those approved by Lender in its sole discretion. FIRST UNION
MORTGAGEE TITLE INSURANCE REQUIREMENTS and UNACCEPTABLE TITLE EXCEPTIONS
are attached hereto, the terms of which are incorporated herein by
reference.
(3) Within thirty (30) days after the Closing, a non-expiring
Mortgagee Title Insurance Policy ("Policy") in the amount of Twenty Million
Dollars ($20,000,000) is to be submitted to Lender naming Xxxxxx as insured
mortgagee. All exceptions to the Policy are subject to the approval of
Lender. Any Notice of Commencement filed prior to Xxxxxx's Mortgage must be
properly
Weston Town Center, LLC
January 26, 2000
Page 14
terminated of record prior to Closing and for which no exception shall
appear on the Title Commitment.
(4) Prior to Closing, Borrower must furnish a Survey of the
Property and a Surveyor's Certificate in accordance with Xxxxxx's survey
requirements subject to Lender's approval showing all improvements located
upon the Property and reflecting all matters reflected on the Title
Commitment certified to Lender, Xxxxxx's counsel, the Title Company and any
title agent.
FLOOD INSURANCE: The Property lies within the 100-year flood plan, and this
evidence shall be furnished by a registered surveyor. Prior to Closing,
Lender must be furnished evidence that all applicable requirements under
the National Flood Insurance Program have been met and flood insurance has
been obtained. Please sign the NRC Form attached hereto as Exhibit B and
return it to Lender with this Commitment.
NOTICE OF PARTICIPATING COMMUNITIES: The Property is located in a community
that is participating in the National Flood Insurance Program and if
damaged by flooding in a federally declared disaster, federal relief
assistance may be available.
LIMITATIONS ON BORROWER: During the term of the Loan, Borrower shall incur
no unsecured liabilities (excluding stockholder/partner loans and payables
associated with normal course of business) without the prior written
consent of Lender; provided, however, this limitation shall not apply to
any existing corporate and personal lines of credit or such similar
facilities in favor of Borrower or Guarantor. There shall be no changes in
the borrowing entity or in the ownership thereof without the written
approval of Lender. Additionally, Borrower shall subordinate (or cause to
be subordinate) to the Loan all loans payable by Borrower to any entity
related to Borrower or Guarantor, including any loan to any affiliate or
subsidiary entity, corporation or any general or limited partnership in
which Borrower or Guarantor are a stockholder or partner. Notwithstanding
anything to the contrary, Borrower may convey its ownership interest in the
Project, in whole or in part, and/or may assign and transfer its rights and
obligations under the Loan, and/or the general partner in Borrower (if any)
may transfer its general partnership interest in Borrower, in whole or in
part, to (i) Guarantor; (ii) any partnership, corporation or other entity
that is, directly or indirectly, controlling, controlled by or under common
control with Guarantor, JMB Realty Corporation, a Delaware corporation
("JMB"), or Northbrook Corporation, a Delaware corporation ("Northbrook")
(each such entity an "Arvida Affiliate"); or (iii) any partnership,
corporation or other entity to which Guarantor, JMB, Northbrook or an
Arvida Affiliate has contributed or will contribute assets and which will
either be sponsored by Guarantor, JMB, Northbrook or an Arvida Affiliate or
in which Guarantor, JMB, Northbrook or an Arvida Affiliate has retained or
will retain not less than a 10% ownership interest. In the event of a
transfer by Borrower of its ownership interest in The Shoppes at Town
Center, Borrower shall be relieved of its obligations under the Loan. For
purposes of this paragraph, control or a specified person or entity
(including the correlative terms "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the person or
entity, whether through
Weston Town Center, LLC
January 26, 2000
Page 15
ownership of voting securities, by contract or otherwise. For purposes of
applying this definition, (a) the managing partner of a general or limited
partnership will be deemed to be in control thereof, provided such managing
partner possesses the power to direct or cause the direction of the
management and policies of the partnership, and (b) an entity will be
deemed controlled by Guarantor, JMB, Northbrook or an Arvida Affiliate if a
majority of the trustees, directors or persons in similar capacities which
direct or cause the direction of the management and policies of such entity
are at all times officers, directors, members, shareholders, employees or
individuals acting in similar capacities of Guarantor, JMB, Northbrook or
an Arvida Affiliate or an entity controlled by or under the common control
with Guarantor, JMB, Northbrook or an Arvida Affiliate.
ADDITIONAL FINANCING: No secondary financing secured in whole or in part by
any collateral held by Lender pursuant to the Loan shall be allowed.
PRESENTATION OF FACTS: This Commitment is subject to the accuracy in all
material respects of all information, representations, warranties and
materials submitted with or in support of Borrower's application as well as
all financial information given by Xxxxxxxx and Guarantor to Lender in
connection with the Loan.
LIABILITY INSURANCE: A liability insurance policy for at least Five
Million Dollars ($5,000,000) in favor of Borrower and written on companies
and in amounts and with endorsements satisfactory to Lender naming Lender
as an additional insured, shall be in effect throughout the term of the
Loan. Evidence of this coverage and all other insurance deemed necessary by
the Lender shall be provided to Lender prior to Closing for Xxxxxx's
approval which shall not be unreasonably withheld.
LOSS OF RENTS INSURANCE: A twelve (12) month loss of rents insurance policy
in an amount to be determined by Lender and written on companies and with
endorsements satisfactory to Lender naming Lender as additional insured
shall be in effect throughout the Mini-Perm Period of the Loan.
APPRAISAL: This Commitment is subject to receipt by Lender of a
satisfactory current appraisal expressing an opinion of market value of The
Shoppes of Town Center: (i) as is value of the 23.80 plus/minus acre site
comprising the Property; (ii) as if developed value of the 23.80 plus/minus
acre site comprising the Property; (iii) as if completed value of The
Shoppes of Town Center; and (iv) as if stabilized value of The Shoppes of
Town Center.
The Lender must arrange for the appraisal and engage the appraisers. The
appraisal must be ordered directly by the Lender and must conform to the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA) and the related rules and regulations of the Office of the
Comptroller of the Currency (the OCC), 12 CFR Part 34, effective August 24,
1990, as amended. The appraisals, including, without limitation, appraisal
methodology and the conclusion(s) of Market Value, shall be subject to
Lender's review and reasonable approval and the appraisal must be
Weston Town Center, LLC
January 26, 2000
Page 16
certified to Lender. All appraisal costs and fees shall be paid by
Xxxxxxxx, and Borrower hereby agrees to immediately pay such appraisal
costs or fees upon the request of Lender. In addition and notwithstanding
anything herein to the contrary, the amount of the Loan shall not exceed
seventy-five percent (75%) of the stabilized value of The Shoppes of Town
Center.
Lender, on behalf of itself and its appraisers, reserves the right
to, upon reasonable prior notice (except in the event of an emergency),
enter onto the Property at reasonable times during the term of the Loan for
the purpose of inspecting and appraising the Project. However, Borrower
shall not be obligated to pay for appraisals more frequently than once a
year unless required by applicable law or by governmental agencies having
regulatory authority over Lender (or the Loan is in default). All such
appraisal costs and fees shall be paid by Borrower upon demand of Lender.
ENVIRONMENTAL SCHEDULE: In accordance with Paragraph 6 of the attached
Standard Loan Terms and Conditions, Borrower must complete and return the
attached Environmental Schedule (See Exhibit C hereto) with the acceptance
copy of this Commitment. The completed Environmental Schedule shall be
subject to the review and approval of the Lender.
PHASE I ENVIRONMENTAL SITE ASSESSMENT REPORT: At least ten (10) days prior
to Closing, Borrower, at Borrower's expense, must provide Lender a
satisfactory Phase I Environmental Site Assessment Report performed by an
environmental consulting firm previously approved by the Lender. The
Environmental Site Assessment shall conform to the Lender's attached
specifications, at a minimum, and shall otherwise be acceptable to the
Lender in scope, form, and content. In the event Lender otherwise requires
further investigation(s) as a result of findings of the Phase I
Environmental Site Assessment Report, then such investigation(s)) shall be
conducted at Borrower's sole cost and expense by an environmental
consulting firm approved by the Lender. This Commitment is contingent upon
the Lender's receipt and approval of the Phase I Environmental Site
Assessment Report and any subsequent findings, test results, consultant
recommendations and/or reports generated as a result of such further
investigation(s).
In lieu of obtaining the Phase I Report, Borrower may satisfy this
condition by completing the questionnaire attached hereto as Exhibit D
regarding the environmental condition of the Property. The Property has
been determined to qualify for Lender's Collateral Protection and Liability
Program, and Borrower shall pay an environmental assessment fee to Lender
in the approximate amount of $1,400, which fee shall be due and payable at
Closing. At Closing, Borrower and Xxxxxxxxx shall execute an Affidavit and
Indemnity Regarding Hazardous or Toxic Materials in favor of Xxxxxx.
DOCUMENTARY STAMPS AND INTANGIBLE TAX: Borrower does hereby indemnify and
hold harmless Lender of and from any and all liability in connection with
the payment of necessary documentary stamps or intangible tax in connection
with the Loan, which indemnification shall survive the Closing and
repayment of the Note.
Weston Town Center, LLC
January 26, 2000
Page 17
IDENTIFICATION OF LENDER: Any obligations to Borrower and/or Guarantor
incurred by Lender in connection with the Loan shall be the exclusive
obligation of First Union National Bank. Any officers, directors or
shareholders of First Union National Bank shall incur no obligations on an
individual basis to Borrower and/or Guarantor and shall not be individually
responsible to Borrower and/or Guarantor for the performance or
non-performance of any obligations of First Union National Bank.
INDEMNIFICATION: Borrower does hereby and shall indemnify and hold Lender,
its directors, officers, employees, agents, successors and assigns harmless
of and from any and all loss or damage, of whatsoever kind, and defend
Lender and such other indemnified parties of, from and against any suits,
claims or demands, including, without limitation, Lender's reasonable legal
fees, paralegal fees, costs and expenses at all trial, appellate,
supplemental and bankruptcy proceedings or levels, on account of any
matters related to this Commitment or the Loan (except if caused by
Xxxxxx's gross negligence or willful misconduct). Such obligations shall
survive termination of the Commitment and repayment of the Note.
YEAR 2000 COMPATIBILITY: Borrower and Xxxxxx shall take all action
necessary to assure that their respective computer based systems are able
to operate and effectively process data including dates on and after
January 1, 2000. Please complete and sign the Year 2000 Schedule attached
hereto as Exhibit E and return it to Lender with this Commitment.
EXPENSES: Xxxxxxxx's acceptance of this Commitment shall constitute
Borrower's unconditional agreement to pay any and all fees, taxes, periodic
intangible taxes, expenses and charges reasonably incurred by Lender in
respect of the Loan or this Commitment, or in any way connected therewith,
which shall include, without limiting the generality thereof, appraisals,
title insurance, title endorsements, reasonable Lender's attorneys' fees
and costs, reasonable fees and costs of Xxxxxx's inspecting engineer,
all-risk hazard insurance, liability insurance, flood insurance,
environmental insurance, professional fees, survey costs, recording and
filing fees and any other taxes, fees and expenses and all sales tax
thereon actually incurred in connection with this transaction and this
Commitment, and Xxxxxxxx agrees to pay the same at Closing. The terms of
this section of this Commitment shall survive the Closing or termination of
this Commitment with respect to those expenses incurred prior to the
termination of this Commitment.
Attorneys' fees for Xxxxxx's counsel through closing of the Loan are
estimated not to exceed Forty Thousand Dollars ($40,000), plus costs
reasonably incurred, provided Borrower timely tenders to Lender, in form
and content satisfactory to Lender, all closing prerequisites, and further
provided that there are no extensive negotiations or unforeseeable problems
with respect to the Loan. Additionally, Xxxxxx's counsel shall bill on an
hourly basis for post-closing work requested by Xxxxxxxx and approved by
Xxxxxx, such as amendments to the Loan Documents.
Weston Town Center, LLC
January 26, 2000
Page 18
XXXXXX'S ATTORNEY:
NAME: Xxxxx, XxXxxxxx, Xxxxx, Xxxxxxxx
& Xxxxxxx. P.A.
ADDRESS: 000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
ATTENTION: Xxxxx X. Xxxxxx, Esquire
TELEPHONE: 000-000-0000
TELECOPIER: 000-000-0000
ATTACHMENTS AND EXHIBITS: Attached herewith to this Commitment is a copy of
Exhibit A (LEGAL DESCRIPTION), Exhibit B (NRC FORM), Exhibit C
(ENVIRONMENTAL SCHEDULE), Exhibit D (ENVIRONMENTAL QUESTIONNAIRE), Exhibit
E (Y2K SCHEDULE), SCHEDULE I (USE OF PROCEEDS SCHEDULE) and STANDARD LOAN
TERMS AND CONDITIONS, ADDITIONAL STANDARD TERMS AND CONDITIONS FOR
CONSTRUCTION LOAN COMMITMENTS and FIRST UNION MORTGAGEE TITLE INSURANCE
REQUIREMENTS, the terms of which are a part of the conditions of this
Commitment. To the extent that any terms of this Commitment conflict with
the terms in any of the attachments hereto, the terms of this Commitment
shall control.
BROKER'S COMMISSION: Xxxxxx and Xxxxxxxx represent and warrant to each
other that neither has dealt with any broker, finder or similar entity in
connection herewith. Each party agrees to indemnify, defend and hold the
other free and harmless from brokerage claims made by any person or entity,
claiming through or as a result of dealings with it relative to this
transaction, including, without limitation, attorneys' fees. This provision
shall survive the termination of this Commitment.
WAIVER - INVALIDITY OF PROVISION: If the Lender chooses to waive any
covenant, paragraph, or provision of this Commitment, or if any covenant,
paragraph, or provision of this Commitment is construed by a court of
competent jurisdiction to be invalid, it shall not affect the
applicability, validity or enforceability of the remaining covenants,
paragraphs or provisions.
VENUE: Venue for any action arising out of this Commitment or any matters
related thereto, and for all matters relating directly or indirectly to the
Loan shall be in a court of competent jurisdiction in Broward County,
Florida.
WAIVER OF JURY TRIAL: XXXXXXXX, XXXXXXXXX AND XXXXXX XXXXXX KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO,
ANY CLAIMS, CROSSCLAIMS OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS COMMITMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
XXXXXXXX AND GUARANTOR HEREBY
Weston Town Center, LLC
January 26, 2000
Page 19
CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LENDER OR XXXXXX'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. XXXXXXXX AND GUARANTOR ACKNOWLEDGE THAT XXXXXX HAS BEEN INDUCED
TO ENTER INTO THIS COMMITMENT BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
SURVIVAL: To the extent that such terms do not conflict with the terms of
the Loan Documents executed by the appropriate parties thereto, the terms
of this Commitment shall survive the Closing.
Weston Town Center, LLC
January 26, 2000
Page 20
CLOSING: The Closing must take place on or before March 15, 2000; otherwise
Lender reserves the right to modify or cancel the terms of this Commitment
and, except as otherwise specifically provided herein, all of the
Commitment Fees paid by Borrower to Lender shall be considered earned and
nonrefundable.
If you agree with the foregoing, please sign and return this
Commitment, together with a check in the amount of ONE HUNDRED THOUSAND
DOLLARS ($100,000) representing the portion of the Commitment Fee now
payable in connection with the Loan, the executed NRC Form, Environmental
Schedule, Environmental Questionnaire and Y2K Schedule by the close of
business on February 4, 2000, otherwise Lender reserves the right to modify
or cancel the terms of this Commitment.
Sincerely,
FIRST UNION NATIONAL BANK
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President
And Senior Relationship Manager
We have read the foregoing Commitment, and we hereby accept the same as of
this 4th day of February, 2000. We understand that this Commitment is
issued and accepted subject to the terms and conditions set forth
hereinabove.
BORROWER:
WESTON TOWN CENTER, LLC, a Delaware limited liability company
By: ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership,
as its managing member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its sole general partner
By: [ executed signature ]
CONSTRUCTION LOAN AGREEMENT
---------------------------
CONSTRUCTION LOAN AGREEMENT dated May 19, 2000 (together with any
amendments or modifications hereto in effect from time to time to time, the
"Agreement"), between FIRST UNION NATIONAL BANK ("Bank") and WESTON TOWN
CENTER, LLC, a Delaware limited liability company ("Borrower").
WHEREAS, Bank has agreed to make a construction/mini-perm loan to
Borrower and Xxxxxxxx has agreed to accept the loan proceeds in the
principal amount of Twenty Million Dollars ($20,000,000) (the "Loan"), on
the terms and conditions set forth herein. The Loan shall be evidenced by a
Promissory Note of even date herewith from Borrower to Bank (the "Note").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, Bank and Borrower agree as follows:
1. DEFINITIONS. As used in this Agreement and in any other Loan
Document (unless otherwise specified therein), the following terms shall
have the following meanings. All other capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Loan
Documents.
1.1. "Advances" means advances of the Loan proceeds subject to the
terms and conditions of this Agreement.
1.2. "Architect" means Xxxxxx & Associates, Inc., or any successor
thereto engaged with the consent of Bank, which consent shall not be
unreasonably withheld or delayed.
1.3. "Architect's Contract" means the contract between Borrower and
the Architect for the design of the "Project" (as hereinafter defined), and
any amendments or modifications thereto approved by Bank, which approval
shall not be unreasonably withheld or delayed.
1.4. "Bank's Inspector" means Bank's internal inspector, or any
successor thereto engaged by Xxxx.
1.5. "Budget" means the detailed line item budget of Direct Costs
and Indirect Costs, including land costs, attached hereto as "Schedule A",
and showing the total costs for each line item and the amount of each line
item to be funded from the Loan and/or Borrower's equity, as the same may
be revised from time to time with the written approval of Bank.
1.6. "Agreement Letter" means the Agreement letter dated January 26,
2000 pursuant to which Bank committed to make the Loan to Borrower.
1.7. "Completion Date" means the completion of the Project,
including, but not limited to, vertical improvements, parking, paving,
landscaping, city water and sewer lines and electrical lines (but excluding
interior tenant improvements for any space not leased) upon the earlier to
occur of (i) the commencement of the "Mini-Perm Period" (as hereinafter
defined), or (ii) the date specified in the "Publix Lease" (as hereinafter
defined) (as may be extended therein due to force majeure).
1.8. "Construction Contract" means the contracts between Borrower
and the General Contractor for the construction of the Project, and any
amendments or modifications thereto approved by Bank, which approval shall
not be unreasonably withheld or delayed.
1.9. "Construction Documents" means the Architect's Contract, the
Construction Contract, all construction, architectural and other design
professional contracts and subcontracts, all change orders,
1
all Governmental Approvals (as defined in subsection 6.1 below), the Plans
and Specifications, and all other drawings, budgets, bonds and agreements
relating to the construction of the Project.
1.10. "Construction Period" means a period of twelve (12) months from
the first full month following the date hereof, subject to extension as
provided in Section 5.5.3 of this Agreement.
1.11. "Conversion Date" means the date on which the Construction
Period converts to the "Mini-Perm Period" (as hereinafter defined) upon
compliance with the terms and conditions of this Agreement.
1.12. "Development Agreement" means any agreements with applicable
governmental authorities or any providing utility company or authority
relating to the Project.
1.13. "Direct Costs" means direct construction costs incurred by
Borrower in connection with the construction of the Project, as itemized in
the Budget, as the same may be revised from time to time with the written
approval of Bank.
1.14. "Equity Requirement" means an amount equal to the greater of
(i) the funds and property to be provided by Xxxxxxxx as shown on Schedule
A hereto (whether from Borrower's cash reserves or future cash calls on its
partners or another source approved by Bank), or (ii) the amount by which
in the opinion of Bank and Bank's Inspector the aggregate of Direct Costs
and Indirect Costs exceeds the amount of the Loan. As to any line items on
Schedule A hereto which shall be funded in part by Borrower and in part by
Lender, Borrower must fund all of Borrower's portion of such line items
before Lender commences the funding of Lender's portion of such line item.
1.15. "General Contractor" means those certain parties more
particularly described on Schedule B hereto, or any successor thereto
engaged with the consent of Bank, which consent shall not be unreasonably
withheld or delayed.
1.16. "Guarantor" means Arvida/JMB Partners, L.P., a Delaware limited
partnership, limited to the degree set forth in its Guaranty in favor of
Bank.
1.17. "Indirect Costs" means costs, other than Direct Costs, incurred
by Borrower in connection with the Loan or the Project, as itemized in the
Budget, as the same may be revised from time to time with the written
approval of Bank.
1.18. "Loan Budget Amounts" means the portion of the Loan set forth
in the Budget to be advanced for each category of Direct Costs and Indirect
Costs.
1.19. "Loan Documents" shall have the meaning set forth in the Note.
1.20. "Mini-Perm Period" means a period of twenty-four (24) months
from the expiration of the Construction Period (upon Borrower satisfying
certain conditions set forth herein) until the "Maturity Date" of the Loan
(as defined in the Note).
1.21. "Plans and Specifications" means the final plans and
specifications, including without limitation all maps, sketches, diagrams,
surveys, drawings and lists of materials, for the construction of the
Project, prepared by the Architect and approved by Bank, and any and all
modifications thereof made with the written approval of Bank.
1.22. "Project" means the construction of The Shoppes of Town Center,
to be comprised of a retail shopping center with second floor office space
(the "Improvements") containing approximately 147,881 net leaseable square
feet anchored by a Publix Supermarket. The Improvements shall also consist
of a parking lot for an adjacent office development to be developed by
Borrower; however, such office development is not part of the Improvements
and, other than as to the parking lot, Bank has made no agreement to
provide financing for such office development. Bank shall join in and
consent to a
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parking lot access easement for the benefit of such office development in
form reasonably satisfactory to Bank.
1.23. "Property" means the real, personal and mixed property
described in the Mortgage as the "Property" consisting of approximately
23.80 plus/minus acres located at the northwest corner of Arvida Parkway
and Bonaventure Boulevard in the City of Weston, Broward County, Florida.
1.24. "Publix Lease" means that certain triple-net Lease between
Borrower and Publix Supermarkets, Inc. for a minimum of 37,887 leaseable
square feet at an initial annual rent of not less than $10.50 per leaseable
square foot plus CAM of not less than $3.50 per leaseable square foot on an
annual basis for a term of not less than twenty (20) years.
1.25. "Retainage" means the greater of (i) 10% of Direct Costs
actually incurred by Borrower for work in place as part of the Project, as
certified from time to time by Bank's Inspector, or (ii) the amount
actually held back by Borrower from the General Contractor and each
subcontractor and supplier engaged in the construction of the Project.
Notwithstanding the foregoing, the applicable retainage for each hard-cost
line item shall be released within thirty (30) days of satisfactory
completion of all work represented by such line item, including receipt of
all necessary governmental approvals.
1.26. "Verified Project Costs" means the aggregate, from time to
time, of (i) Indirect Costs actually incurred by Xxxxxxxx and approved for
funding by Bank, and (ii) Direct Costs actually incurred by Borrower for
work in place as part of the Project, as certified by Bank's Inspector,
from time to time, pursuant to the provisions of this Agreement, minus a
sum equal to the portion of the Equity Requirement which Borrower is
required to have invested in the Project from time to time pursuant to this
Agreement.
2. THE LOAN.
2.1. Terms of Loan. Xxxx agrees to make the Loan to Borrower on the
terms and conditions hereinafter set forth. The Loan will bear interest at
the rate or rates, and will be repaid, as set forth in the Note.
2.2. Use of Loan Proceeds. Borrower shall use the proceeds of the
Loan solely for the purpose of financing a portion of Xxxxxxxx's costs to
be incurred in connection with the construction of the Project and for no
other purpose except as shown on Schedule A hereto. No substitution of
funds from one category to another shown on Schedule A hereto shall be
allowed, unless Bank, in its reasonable discretion, approves such
substitution in writing and there are sufficient Loan proceeds in each item
as reallocated to complete the scope of work and all affected parties are
notified in writing as required by law.
2.3. Incorporation. All of the Loan Documents are hereby made a
part of this Agreement to the extent and with the same effect as if fully
set forth herein.
3. LOAN ADVANCES.
3.1. Loan Advances. Subject to compliance by Borrower with the
terms and conditions of this Agreement, Bank shall make Advances to
Borrower for Direct Costs and Indirect Costs; provided, however, that in no
event shall Bank be obligated to make disbursements of the Loan in excess
of Verified Project Costs. Provided that Borrower has satisfied all of the
conditions set forth in Section 5.5 below, the Construction Period shall
convert to the Mini-Perm Period, subject to the terms and conditions of
this Agreement and the other Loan Documents, on the Conversion Date.
3.2. Equity Requirement. Prior to any Advance by Bank, Borrower
shall invest an amount equal to the Equity Requirement into the
construction of the Project in accordance with the Budget. The Equity
Requirement shall remain invested in the Project for the term of the Loan
and Xxxxxxxx agrees that no portion of the Equity Requirement will be
reimbursed directly or indirectly without Bank's prior written consent. At
the request of Bank, the amount of the Equity Requirement shall be, to the
extent applicable,
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deposited with Bank and disbursed by Bank for construction of the Project
in accordance with the terms and conditions of this Agreement.
3.3. Retainage. Subject to the last sentence of Section 1.25 and
Section 3.7 hereof, Bank shall retain from each Advance an amount equal to
the Retainage. The Retainage for other than hard- cost line items shall be
released by Bank, provided that no Event of Default then exists hereunder
or under any of the other Loan Documents, at the time of, and subject to
the conditions for, the final Advance.
3.4. Deficiency in Loan Amount. Subject to Section 4.3 hereof, if,
prior to any Advance, Bank shall determine that the actual cost to complete
construction of the Project exceeds the undisbursed balance of the Loan,
Bank may require Borrower to deposit with Bank within five (5) days of
demand the projected deficiency. At Bank's option, no Advances shall be
made until Xxxxxxxx has fully complied with this requirement. All such
deposited funds shall be disbursed, in accordance with the provisions of
this Agreement, to pay costs to complete construction of the Project before
any further Advances.
3.5. Interest Reserve. Borrower acknowledges that the Loan amount
includes a reserve for interest due on the Loan (the "Interest Reserve") in
the amount set forth in the Budget. Subject to the limitations set forth
below, Bank shall disburse and charge the Interest Reserve for interest due
under the Note on the date such interest payments become due. Such
disbursements shall be made by a bookkeeping entry on Bank's records
reflecting, as an additional Advance, an amount equal to the accrued
interest due and payable on the relevant payment date. Any such funds
disbursed in the manner provided in this subsection shall be deemed paid to
and received by Borrower, shall be added to the outstanding principal
balance of the Loan and shall bear interest at the rate set forth in the
Note. It is understood and agreed that (i) Bank shall not be obligated to
disburse any portion of-the Interest Reserve at any time when any condition
to an Advance is not satisfied (except that Bank shall have the right to
fund such interest from the Interest Reserve even if no draw request has
been submitted to or approved by Bank), and (ii) all payments received by
Borrower under leases for any portion of the Property, prior to the
occurrence of an Event of Default, shall be applied first to the approved
operating expenses of the Property and then toward interest due on the
Loan, with only the balance funded out of the Interest Reserve. So long as
funds remain available under the Interest Reserve, Borrower shall submit to
Bank on the tenth day of each month a management certified income and
expense report, in form and substance satisfactory to Bank, for the
immediately preceding month. In the event Bank is not obligated to
disburse out of the Interest Reserve as aforesaid, Borrower shall be
responsible for the current payment of interest on the Loan from Borrower's
own funds.
3.6. Contingency Reserve. Advances from that portion of the Loan
proceeds allocated to Contingency line items (the "Contingency Reserve") on
the Budget, if any, may be disbursed in Bank's reasonable discretion for
payment of Direct Costs or Indirect Costs as documented by paid receipts
and otherwise as provided herein. Bank may determine in its absolute
discretion whether to pay interest from the Contingency Reserve.
3.7. Developer's Fees. Advances of that portion of the Loan
proceeds allocated in the Budget to development overhead, construction
overhead, or other fees to Borrower shall be subordinate to the Loan, and,
provided that all conditions to an Advance have otherwise been satisfied,
shall be made prorata with the progress of the construction of the Project
as determined by Bank's Inspector.
3.8. Procedures. All Advances shall be made from time to time as
construction progresses upon written application of Borrower pursuant to an
Advance Request (as hereinafter defined). Borrower shall file Advance
Requests with Bank no more frequently than monthly, covering work performed
since the prior Advance Request. Each Advance Request shall constitute a
representation by Borrower that the work done and the materials supplied to
the date thereof are substantially in accordance with the Plans and
Specifications; that the work and materials for which payment is requested
have been physically incorporated into the Project; that the value is as
stated; that the work and materials conform with all applicable rules and
regulations of the public authorities having jurisdiction in all material
respects; that payment for the items described in such Request has been
made or will be made with the proceeds of the
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Advance for which the Advance Request was submitted; that such Advance
Request is consistent with the Budget; that the proceeds of the previous
Advance have been actually paid by Borrower in accordance with the approved
Advance Request for such previous Advance; and that no Event of Default or
event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default has occurred and is continuing.
3.9. Stored Materials. Bank shall not be required to make Advances
for costs incurred by Borrower with respect to materials stored on or off
the Property unless Bank shall, in its sole discretion, deem it advisable
to do so. If Bank elects to make an Advance for stored materials, all
stored materials must be incorporated into the Project within forty five
(45) days of Borrower's Advance Request regarding such materials, and the
following additional conditions shall apply: (i) copies of all invoices
relating to such stored materials and a stored materials inventory sheet
shall be submitted with the Advance Request; (ii) with respect to materials
stored on the Property, such materials shall be adequately secured, as
determined by Bank's Inspector; and (iii) with respect to materials stored
off the Property, such materials must be (A) adequately stored at a bonded
warehouse, (B) insured under an Inland Marine Policy naming Bank as an
additional insured, (C) subject to a first priority lien held by Bank, and
(D) subject to inspection by Bank's Inspector. Bank may impose such
additional conditions and requirements as it deems appropriate in its sole
discretion.
3.10. Bank's Inspector. Bank shall have the right to retain, at
Xxxxxxxx's expense, Bank's Inspector to act as Bank's consultant in
connection with the Loan and the construction of the Project, to review and
advise Bank with respect to the Construction Documents, and other matters
related to the design, construction, operation and use of the Project, to
monitor the progress of construction, and to review Advance Requests and
change orders submitted hereunder. The fees and expenses of Bank's
Inspector shall be due and payable by Borrower as provided for herein or
otherwise on demand. Borrower shall provide to Bank and Bank's Inspector
facilities commonly made available by responsible contractors for the
inspection of the Project, and to afford full and free access by Bank and
Bank's Inspector to all Construction Documents. The costs to be paid by
Borrower for the services of Bank's in-house inspector for the "Front-end"
report for the Project shall be $1,300 payable by Borrower to Bank as of
the date hereof and the per draw fee shall be $350 payable by Borrower to
Bank at the funding of each Advance.
Borrower acknowledges that (i) Bank's Inspector has been retained by
Bank to act as a consultant, and only as a consultant, to Bank in
connection with the construction of the Project, (ii) Bank's Inspector
shall in no event have any power or authority to make any decision or to
give any approval or consent or to do any other thing which is binding upon
Bank and any such purported decision, approval, consent or act by Bank's
Inspector on behalf of Bank shall be void and of no force or effect, (iii)
Bank reserves the right to make any and all decisions required to be made
by Bank under this Agreement, in its sole and absolute discretion, and
without in any instance being bound or limited in any manner whatsoever by
any opinion expressed or not expressed by Xxxx's Inspector to Bank or any
other person with respect thereto, and (iv) Bank reserves the right in its
sole and absolute discretion to replace Bank's Inspector with another
inspector at any time and without prior notice to or approval by Borrower.
3.11. Development Security. At Borrower's request, Bank may issue
letters of credit (subject to compliance with Bank's standard procedures
for issuance of letters of credit and in form and substance satisfactory to
Bank) if required by governmental authorities or utilities to secure
Borrower's obligations under a Development Agreement, provided that the
aggregate amount of all such letters of credit do not exceed the amount of
the Loan Budget Amount for the related work as shown on the Budget. The
proceeds of the Loan restricted by any such letter of credit shall be
available only for the costs covered by, and in accordance with the terms
of, the related Development Agreement. Any amounts paid by Bank under any
such letter of credit shall be treated for all purposes as an Advance
hereunder.
3.12. No Third Party Beneficiaries. The parties hereto do not intend
the benefits of this Agreement to inure to any third party. Notwithstanding
anything contained herein or any other Loan Document, or any conduct or
course of conduct by any of the parties hereto, this Agreement shall not be
construed as creating any rights, claims, or causes of action against Bank,
or any of its officers, agents, or
5
employees, in favor of any contractor, subcontractor, supplier of labor,
materials or services, or any of their respective creditors, or any other
person or entity other than Borrower.
4. LOAN REQUESTS
4.1 Request for Advance. For each request for an Advance, Borrower
shall submit to Bank, at least five (5) business days prior to the
requested date of disbursement, a completed written disbursement request
(each, an "Advance Request") in such form and detail as required by Bank,
together with a check in the amount of the inspection fee set forth in
Section 3.10 hereof. Each Advance Request shall certify in detail,
acceptable to Bank, the cost of the labor that has been performed and the
materials that have been incorporated into the Project and all Indirect
Costs that have been incurred since the date of the previous Advance, and
shall be accompanied by such supporting data as Bank may require,
including, without limitation, receipts, vouchers, invoices, waivers of
mechanic's and materialmen's liens, and AIA Forms G702 and G703 certified
by the General Contractor and Architect or engineer for the Project. The
proceeds of each Advance shall be used by Borrower solely to pay or as
reimbursement for the obligations for which the Advance is sought.
4.2 Inspection. Upon receiving each Advance Request, Bank's
Inspector will determine (a) whether the work completed to the date of such
Advance Request has been done satisfactorily and in accordance with the
Plans and Specifications, (b) the percentage of construction of the Project
completed as of the date of such Advance Request, (c) the Direct Costs
actually incurred for work in place as part of the Project as of the date
of such Advance Request, (d) the actual sum necessary to complete
construction of the Project in accordance with the Plans and
Specifications, and (e) the amount of time from the date of such Advance
Request which will be required to complete construction of the Project in
accordance with the Plans and Specifications. Advances shall be funded, if
possible, within five (5) business days of receipt by Bank of all required
information and Bank's reasonable approval of same. All inspections by or
on behalf of Bank shall be solely for the benefit-of Bank, and Borrower
shall have no right to claim any loss or damage against Bank or Bank's
Inspector arising from any alleged (i) negligence in or failure to perform
such inspections, or (ii) failure to monitor Advances or the progress or
quality of construction.
4.3 Disbursement of Advance. At Bank's option, Bank may make
advances of the Loan directly into a separate construction disbursement
account or other Borrower account with Bank, to Borrower directly, to a
title insurance company or other third party, directly to the General
Contractor, subcontractor, materialmen or other suppliers providing labor,
services or materials in connection with the construction of the Project,
or jointly to Borrower and any such person. Bank shall have no obligation
after making Advances in a particular manner to continue to make Advances
in that manner. Notwithstanding the foregoing, Bank's records of any
Advance made pursuant to this Agreement shall, in the absence of manifest
error, be deemed correct and acceptable and binding upon Borrower. If at
any time the unfunded balance of the Loan allocated for a particular line
item is insufficient to cover the approved budgeted cost of such line item,
the overrun shall be paid by any excess funds left: (i) first in a complete
line item; (ii) next in any line items which Borrower can reasonably
demonstrate will contain an excess balance once such item is completed and
approved by Bank's Inspector; and then (iii) by an infusion of Borrower's
funds prior to Bank making further disbursements under the Loan.
4.4 No Warranty by Bank. Nothing contained in this Agreement or
any other Loan Document shall constitute or create any duty on or warranty
by Bank regarding (i) the accuracy or reasonableness of the Budget, (ii)
the proper application by Borrower, General Contractor or any subcontractor
of the Loan proceeds, (iii) the quality or condition of the Project, or
(iv) the competence or qualifications of the General Contractor or any
other party furnishing labor or materials in connection with the
construction of the Project. Borrower acknowledges that Xxxxxxxx has not
relied and will not rely upon any experience, awareness or expertise of
Bank regarding the aforesaid matters.
6
5. CONDITIONS TO ADVANCE
5.1. General Conditions. Bank will have no obligation to make any
Advance (a) unless Bank is satisfied, in its sole discretion, that the
conditions precedent to the making of such Advance have been satisfied; or
(b) if an Event of Default or an event which, with the giving of notice or
the passage of time, or both, would constitute an Event of Default has
occurred and is continuing. Notwithstanding anything contained to the
contrary herein, the maximum amount of the Loan shall in no event exceed
seventy-five percent (75%) of the stabilized appraised value of the
Project.
5.2. Conditions to Initial Advance. Bank's obligation hereunder to
make the initial Advance is conditioned upon Bank's receipt of the
following, each in form and substance satisfactory to Bank:
5.2.1. each of the Loan Documents duly executed as
necessary to be enforceable against the parties thereto;
5.2.2. each of the other documents, certificates and
instruments required under this Agreement and/or the Agreement Letter;
5.2.3. a paid title insurance Agreement or policy (the
"Title Policy") issued by a title insurance company (the "Title Insurer")
acceptable to Bank, insuring the Mortgage as a valid first lien on
Xxxxxxxx's fee estate in the Property for the full amount of the Loan, free
and clear of all defects and encumbrances except as Bank shall approve;
5.2.4. a Notice of Commencement signed by Xxxxxxxx and
acceptable to Bank shall have been delivered to the Title Insurer to be
recorded on a date subsequent to the date of the recording of the Mortgage.
An executed copy of the Bond shall be attached to and recorded with the
Notice of Commencement, if such Bond is required by Bank. Borrower shall
have agreed to post a certified copy of the recorded Notice of Commencement
on the Property in accordance with the Legal Requirements; and
5.2.5. each of the items set forth in subsection 5.3
hereof.
5.2.6. evidence of not less than 86,200 net leaseable
square feet of the Project (of which 37,887 net leaseable square feet may
be credited by the Publix Lease) being pre-leased under Bank-approved
leases (Bank's approval not to be unreasonably withheld) with terms of not
less then five (5) years at a minimum rents and CAM rates not less than
pro-forma minimums.
5.3. Conditions to Subsequent Advances. Bank's obligations
hereunder to make any subsequent Advances are conditioned upon Bank's
receipt of the following, each in form and substance satisfactory to Bank:
5.3.1. a timely Advance Request, together with all
required supporting documentation;
5.3.2. evidence that Xxxxxxxx has invested the required
portion of the Equity Requirement in the Project;
5.3.3. an endorsement to the Title Policy continuing the
effective date of the Title Policy through the date of the Advance and
insuring that there has been no change in the status of the title to the
Property. In the event the Title Policy contains a "pending disbursement"
clause, the endorsement shall also increase the amount of the Title Policy
by the amount of the Advance being made in connection therewith;
5.3.4. a satisfactory inspection report from Bank's
Inspector; and
5.3.5. such other documents, instruments, information,
agreements and certificates as Bank or the Title Insurer may reasonably
require.
7
5.4. Conditions to Final Advance. Bank's obligation hereunder to
make the final Advance is conditioned upon Bank's receipt of the following,
each in form and substance satisfactory to Bank:
5.4.1. each of the items set forth in subsection 5.3
hereof, except as otherwise provided herein;
5.4.2. a final endorsement to the Title Policy continuing
the effective date of the Title Policy so as to insure the Loan as fully
disbursed and removing any "pending disbursement" clause, any survey
exceptions and any other exceptions to title arising out of the
construction of the Project;
5.4.3. the final "as-built" survey in compliance with the
requirements of Section 7.6;
5.4.4. evidence that Xxxxxxxx's builder's risk insurance
has been converted to an "all-risk" fire and extended coverage hazard
insurance policy (non-reporting Commercial Property Policy with Special
Cause of Loss form) in accordance with the requirements of the Mortgage;
and
5.4.5. each of the items set forth in the Completion
Conditions set forth in subsection 7.2 below.
5.5. Conditions to Conversion. Bank's obligation hereunder to convert the
Construction Period to the Mini-Perm Period is conditioned upon Bank's
receipt of the following, each in form and substance satisfactory to Bank:
5.5.1. each of the items set forth in subsection 5.4
hereof;
5.5.2. Borrower must have satisfied all of the following
conditions:
a. At the commencement of the Mini-perm Period,
no "Event of Default" by Borrower shall exist under any of the Loan
Documents and no event or circumstance shall exist which, with the giving
of notice or lapse of time or both, would constitute such a default by
Borrower thereunder;
b. The Project has been completed lien-free
(except for any liens temporarily permitted by this Agreement) in
substantial compliance with the terms and conditions of this Agreement and
in substantial accordance with Plans and Specifications;
c. A Certificate of Occupancy shall have been
issued for the Publix Supermarket and a shell Certificate of Occupancy
shall have been issued for the balance of the Project; and
d. Publix Supermarkets, Inc. shall have taken
occupancy pursuant to the Publix Lease and commenced paying rent to
Borrower.
If the aforesaid conditions to conversion have not been satisfied on
or before the termination of the Construction Period, the Loan shall not be
converted to the Mini-Perm Period and the outstanding principal balance of
the Loan, together with all accrued and unpaid interest thereon and all
other amounts payable under the Loan Documents, shall immediately be due
and payable.
5.5.3. Notwithstanding anything contained herein or in the
other Loan Documents to the contrary, the termination date of the
Construction Period shall be extended for up to twenty-four (24) months due
to construction delays caused by force majeure outside the control of
Borrower, provided the Loan is in good standing and Borrower demonstrates
to Bank's reasonable satisfaction that all of the following conditions have
been satisfied (in which case the commencement date of the Mini-Perm Period
shall begin upon the termination date of the Construction Period as
extended, thereby causing the Maturity Date to be adjusted accordingly):
8
a. Available insurance proceeds cover one
hundred percent (100%) of the hard and soft costs to be incurred by
Borrower in restoring damage to the Improvements caused by force majeure
(or, if not. Borrower demonstrates to Bank's reasonable satisfaction that
Borrower has available cash reserves to cover the balance of such costs);
and
b. Available insurance proceeds cover one
hundred percent (100%) of Borrower's interest expense under the Loan during
the period of the Loan term extended by force majeure (or, if not, Borrower
demonstrates to Bank's reasonable satisfaction that Borrower has available
cash reserves to cover the balance of such costs): and
c. Publix Supermarkets, Inc. shall not be
entitled to terminate the Publix Lease (nor be entitled to receive any
consideration from Borrower) due to the delay in completion of the Project
due to force majeure; and
d. Guarantor shall maintain in good standing its
legal existence through the Maturity Date of the Loan as adjusted due to
force majeure.
6. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Bank as follows:
6.1. Governmental Approvals. All necessary approvals from
governmental or quasi-governmental authorities having jurisdiction over the
Project, including, but not limited to, street openings or closings, zoning
and use and occupancy permits, sewer permits, environmental permits and
approvals. building permits, highway occupancy permits, subdivision and
land development approvals, and approvals of fire underwriters (the
"Governmental Approvals"), have been obtained for the construction of the
Project and are final, unappealed, and unappealable, and remain in full
force and effect without restriction or modification.
6.2. Condemnation. No notice of taking by eminent domain or
condemnation of any material part of the Property has been received, and
Xxxxxxxx has no knowledge that any such proceeding is contemplated or if
any such event has occurred Borrower is able to continue, and is
continuing, promptly and diligently to complete construction of the Project
without a material adverse change in the Plans and Specifications.
6.3. Casualty Damage. No material part of the Property or the
Project has been damaged or injured as a result of any fire, explosion,
accident, flood, or other casualty which is not now fully restored, or if
any such event has occurred, Borrower is promptly and diligently repairing
or replacing the same.
6.4. Access. The Property abuts and has direct access to a
legally-opened public right-of-way.
6.5. Utilities. Electricity, public potable water and public
sanitary and storm sewerage facilities and, if shown on the Plans and
Specifications, natural gas service are available at the Property and are
of sufficient capacity to service the Project.
6.6. Public Improvements. All public improvements included as part
of the Project have been fully authorized by appropriate municipal
ordinance or other required municipal action. Borrower is not in default
under any Development Agreement, and Borrower has satisfied all conditions
imposed by the Municipality and any other governmental authority in
connection with the grant of subdivision and land development approval for
the Property.
6.7. Outparcel Borrower must submit for Bank's approval, which shall
not be unreasonably withheld or delayed, any easements over the Project
deemed necessary for the development of the outparcel. Borrower represents
to Bank that as of the date of this Agreement, the outparcel is under
contract to be sold to Bank America with a deed restriction requiring the
outparcel to be utilized as a retail banking facility for a certain number
of years.
9
6.8. Project Operating Accounts. The principal operating accounts
for the Project shall be maintained with Bank during the term of the Loan.
6.9. Survival. All of the representations and warranties of
Borrower as set forth in this Agreement shall survive the making of this
Agreement and shall be continuing. Each and every request submitted by
Borrower for an Advance under this Agreement shall constitute a new and
independent representation and warranty to Bank with respect to all of the
matters set forth in this Agreement as of the date of each such application
unless another date is specified with respect to a particular matter.
7. CONSTRUCTION COVENANTS.
7.1. Construction of Project. Unless otherwise agreed in writing by
Bank, construction of the Project shall commence on or before the date
specified in the Publix Lease (as may be extended therein due to force
majeure) and be carried on diligently and without delay or interruption for
more than fifteen (15) consecutive days (commencement of construction shall
be defined to be the date of commencement of Project site work). The
Project shall be constructed in a good and workmanlike manner, in
accordance with the Plans and Specifications and in compliance with all
Legal Requirements (as such term is defined in the Mortgage) in all
material respects.
7.2 Completion of the Project. Borrower shall complete
construction of the Project, including, without limitation, such street
improvements, curbs, sidewalks, grading, parking, utilities and connections
as may be required for normal use thereof and all tenant improvement work
for that portion of the Project leased and occupied by tenants, by no later
then the Completion Date. For purposes of this Agreement, completion of the
Project shall be deemed to have occurred only when the following Completion
Conditions (the "Completion Conditions") shall have been satisfied:
7.2.1. Borrower shall furnish to Bank a permanent
certificate of occupancy or its equivalent and such other permits and/or
certificates (including a certificate of substantial completion from the
Architect) as shall be required to establish to Bank's satisfaction that
the Project (including, without limitation, all tenant improvement work for
that portion of the Project leased and occupied by tenants) has been
properly completed and is not subject to any violations or uncorrected
conditions noted or filed in any municipal department;
7.2.2. Borrower shall submit to Bank full and complete
releases of liens from each contractor, subcontractor and supplier, or
other proof satisfactory to Bank, confirming that final payment has been
made for all materials supplied and labor furnished in connection with the
Project (including, without limitation, all tenant improvement work for
that portion of the Project leased and occupied by tenants);
7.2.3. The Project (including, without limitation, all
tenant improvement work for that portion of the Project leased and occupied
by tenants) shall have been finally completed in all respects in accordance
with the Plans and Specifications, as verified by a final inspection report
satisfactory to Bank from Bank's Inspector, certifying that the Project
(including, without limitation, all tenant improvement work for that
portion of the Project leased and occupied by tenants) has been constructed
in a good and workmanlike manner and is in satisfactory condition, and that
all mechanical, electrical, plumbing, structural and roof systems are in
acceptable operating condition. Bank reserves the right to require that an
escrow be established in an amount satisfactory to Bank to remedy any
physical deficiency in any of the Project;
7 2.4. Borrower shall deliver to Bank a satisfactory
as-built survey disclosing no conditions unacceptable to Bank and showing
lot and street lines, the location of all improvements, easements,
rights-of-way and utilities (including all easements listed as exceptions
on Bank's Title Policy), and containing a certification addressed to Bank
in form and content satisfactory to Bank;
10
7.2.5. Borrower shall submit to Bank reasonably
satisfactory evidence that all improvements to public streets have been
completed, offered for dedication, and accepted by governmental authority.
7.3. Change Orders. No amendment shall be made to the Plans and
Specifications, the Architect's Contract or to the Construction Contract,
nor shall any change orders be made thereunder without the prior written
consent of Bank; provided, however, that Bank's consent shall not be
required for (but Bank shall promptly receive copies of) any change orders
which do not involve a change in the scope of the Project or a reduction in
the value thereof so long as such change order does not (a) materially
change the Plans and Specifications; (b) extend the Completion Date, (c)
involve an expenditure of $25,000 or more as to any individual change
order, and (d) involve, as to the aggregate of all change orders, an
expenditure in excess of $250,000.
7.4. Subcontractors. Xxxxxxxx agrees that it will not engage or
continue to employ any contractor or materialman (except for the General
Contractor(s)) listed on Schedule B, who have been approved by the Bank)
who may be reasonably objectionable to Bank. To the extent Borrower has the
same in its possession, Borrower shall supply to Bank copies of any
subcontracts if requested by Bank between the General Contractor and its
subcontractors.
7.5. Liens and Lien Waivers. Borrower shall take all action
necessary to have any mechanic's and materialmen's liens, judgment liens or
other liens or encumbrances filed against the Property released or
transferred to bond within ten (10) days of the date Borrower receives
notice of the filing of such liens or encumbrances. If any such lien or
encumbrance is filed, Bank shall not be required to make any Advances until
it is removed and a copy of the recorded release thereof is received by
Bank and accepted by the Title Insurer. Borrower shall be fully and solely
responsible for compliance in all respects whatsoever with the applicable
mechanic's and materialmen's lien laws.
7.6. Surveys. Borrower shall deliver to Bank, each in compliance
with Bank's survey requirements, (a) a foundation survey within thirty (30)
days after completion of the foundation of the Project, (b) an as-built
survey within thirty (30) days after the completion of the Project but
prior to the Final Advance, and (c) any additional surveys reasonably
requested by Bank, Bank's Inspector or the Title Insurer, within thirty
(30) days after such request. Any change in the state of facts shown in
any such updated survey shall be subject to approval by Bank and Bank's
Inspector, which shall not be unreasonably withheld.
7.7. Soil, Concrete and Other Tests. Borrower shall, at Borrower's
expense, cause to be made such soil, compaction, concrete and other tests
as Bank or Bank's Inspector may reasonably require from time to time, each
in form and substance and from testing companies reasonably acceptable to
Bank.
7.8. Compliance with Laws and Restrictions. All construction shall
be performed in accordance with all applicable statutes, ordinances, codes,
regulations and restrictions in all material respects. The Project shall
be constructed entirely on the Property and will not encroach upon or
overhang any easement, right of way, or any other land, and shall be
constructed wholly within applicable building setback restrictions. All
contractors, subcontractors, mechanics or laborers and other persons
providing labor or material in construction of the Project shall have or be
covered by worker's compensation insurance, if required by applicable law.
7.9. Assignment of Construction Documents. As additional security
for the obligations of Borrower under this Agreement and the other Loan
Documents, Borrower hereby collaterally assigns and transfers to Bank and
grants to Bank a security interest in all of Borrower's right, title,
interest and benefits in or under the Construction Documents and all
Development Agreements.
7.10. Leases. Borrower will comply with the terms and conditions of,
and deliver leased premises at the time and in the condition required by,
any Bank-approved lease. Borrower will not enter into, amend or renew any
lease in excess of 2,500 net leaseable square feet or other occupancy
11
agreement in excess of 2,500 net leaseable square feet affecting the
Property without Bank's prior written consent. Bank's consent may be
conditioned upon receipt of such documents and agreements, including
without limitation subordination and attornment agreements and tenant
estoppel certificates, as Bank may reasonably require. Prior to executing
any leases other than the Publix Lease, Borrower shall prepare and furnish
Lender with a proposed standard lease form ("Lease") for Lender's approval
(which shall not be unreasonably withheld), which form of Lease shall
contain a provision subordinating all such leases to the lien and operation
of Lender's Mortgage and other security instruments, as same may be
modified from time to time. Borrower shall not accept payment of advanced
rent for more than two months. Bank shall have the right to review and
approve all Leases in excess of 2,500 net leaseable square feet prior to
Borrower executing same (Bank's approval not to be unreasonably withheld
and/or delayed). All Leases shall be subordinate to Xxxxxx's Mortgage and
other security instruments. Borrower shall, throughout the term of the
Loan, promptly submit or cause to be submitted by Bank photocopies of all
tenant leases and side agreements as to the Project. Borrower shall submit
to Bank written Rent Rolls on a quarterly basis or as otherwise requested
by Bank upon the occurrence of an "Event of Default" under the Loan
Documents. Such Rent Rolls shall specify those portions of space leased,
space designation, lease amount for each space leased, amount of any
deposits, name and address of lessee, amount of space leased during the
preceding reporting period, any rent abatements or concessions and any
other information relevant to the leasing program reasonably requested by
Bank. All reports shall be in form reasonably satisfactory to Bank. All
new leases or renewals or modifications of existing leases shall be
subordinate to Bank's Mortgage and other security instruments and
collaterally assigned to Bank.
7.11. Management and Leasing Agreements. Upon an "Event of Default"
by Borrower hereunder, all management and leasing agreements shall be
subject to the prior review and approval by Bank, and shall provide that
Bank shall have the right to terminate such agreements in the event Bank
acquires title to the Property.
7.12. Ownership of Material and Fixtures. No materials, equipment or
fixtures incorporated by Borrower into the Project shall be purchased or
installed under any security agreement, conditional sales contract, lease,
or other arrangement wherein the seller reserves title or any interest in
such items or the right to remove or repossess such items or to consider
them personal property after their incorporation into the Project, without
the prior written consent of Bank.
7.13. Payment and Performance Bonds. If requested by Bank, Borrower
shall furnish Bank with both payment and performance bonds (collectively,
the "Bonds") in form, substance and amounts satisfactory to Bank, issued by
a surety acceptable to Bank, and naming Bank and Borrower as dual obligees
thereunder.
7.14. Advertising. Bank shall have the right to erect one or more
signs on the Property advertising its financing of the Project.
7.15. Time is of the Essence. In all matters pertaining to this
Agreement, time is of the essence.
8. EVENTS OF DEFAULT AND REMEDIES.
8.1. Each of the following shall constitute an event of default
(each, an "Event of Default") hereunder:
8.1.1. Non-payment of any sum required to be paid to Bank
under any of the Loan Documents within five (5) days from when due and
payable thereunder;
8.1.2. A breach by Borrower of any other term, covenant,
condition, obligation or agreement under this Agreement in any material
respect, and the continuance of such breach for a period of thirty (30)
days after written notice thereof shall have been given to Borrower;
provided, however, that in the event that such breach is not capable of
being cured within such thirty (30) day period (despite the diligent,
good-faith efforts of Borrower to effect such cure), then provided Borrower
diligently commences
12
to cure within such thirty (30) day period and thereafter diligently
pursues the cure of such breach, then Borrower shall have a reasonable
period of time to cure such breach not to exceed one hundred eighty (180)
days after written notice was given to Borrower of such breach (it being
understood and agreed that, notwithstanding anything contained under the
Loan Documents to the contrary, in no event shall Bank be obligated to
continue to advance any Loan proceeds to Borrower under the Loan Agreement
until such time as such breach is so cured).
8.1.3. Any representation or warranty made by Borrower in
this Agreement shall prove to be false, incorrect or misleading in any
material respect as of the date when made and the continuance thereof for a
period of thirty (30) days after written notice thereof shall have been
given to Borrower; provided, however, that in the event that such breach is
not capable of being cured within such thirty (30) day period (despite the
diligent, good-faith efforts of Borrower to effect such cure), then
provided Borrower diligently commences to cure within such thirty (30) day
period and thereafter diligently pursues the cure of such breach, then
Borrower shall have a reasonable period of time to cure such breach not to
exceed one hundred eighty (180) days after written notice was given to
Borrower of such breach (it being understood and agreed that,
notwithstanding anything contained under the Loan Documents to the contrary
in no event shall Bank be obligated to continue to advance any Loan
proceeds to Borrower under the Loan Agreement until such time as such
breach is so cured).
8.1.4. An Event of Default under any of the other Loan
Documents including the payment by Bank of any letter of credit issued by
Bank on behalf of Xxxxxxxx;
8.1.5. Failure to complete the Project substantially in
accordance with the Plans and Specifications in the judgment of Bank's
Inspector on or before the Completion Date (as the same may be extended in
accordance with Section 5.5.3 hereof) or material changes in the Plans and
Specifications are made without securing the prior express written consent
of Bank as required;
8.1.6. Failure to proceed with reasonable diligence with
the construction of the Project in the judgment of Bank's Inspector or
abandonment of or cessation of work on the Project, at any time prior to
the completion of the Project, for a period of more than fifteen (15) days
other than due to an event of force majeure.
8.2. Upon or at any time after the occurrence of an Event of
Default, Bank may refuse to make any further advances hereunder and
terminate Bank's Agreement to make the Loan. Thereupon, Bank shall have the
right to declare immediately due and payable the outstanding principal
balance of the Note, all accrued and unpaid interest thereon and all other
sums due in connection therewith, and, subject to the terms of this
Agreement and the other Loan Documents, Bank may exercise any right, power
or remedy permitted by law or as set forth in any of the Loan Documents.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in the Mortgage. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
9.2. No Implied Waiver. Bank shall not be deemed to have modified
or waived any of its rights or remedies hereunder unless such modification
or waiver is in writing and signed by Bank, and then only to the extent
specifically set forth therein. A waiver in one event shall not be
construed as continuing or as a waiver of or bar to such right or remedy on
a subsequent event.
9.3. Partial Invalidity. The invalidity or unenforceability of any
one or more provisions of this Agreement shall not render any other
provision invalid or unenforceable. In lieu of any invalid or
13
unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable
provision as may be possible.
9.4. Binding Effect. The covenants, conditions, waivers, releases
and agreements contained in this Agreement shall bind, and the benefits
thereof shall inure to, the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns. This
Agreement may be executed in counterparts together constituting one
Agreement.
9.5. Modifications. This Agreement may not be supplemented,
extended, modified or terminated except by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
9.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
9.7. No Assignment. The Loan may not be assigned by Borrower
without the prior written consent of Bank, and any purported or attempted
assignment without such consent shall be void and of no force or effect.
9.8. Y2K. Borrower shall take all action necessary to assure that
Xxxxxxxx's computer based systems are able to operate and effectively
process data, including dates on and after January 1, 2000. At the request
of Xxxxxx, Borrower shall provide Lender with assurance acceptable to
Lender of Borrower's Year 2000 compatibility.
9.9. Nonliability of Lender. All inspections and other services
rendered By the Inspector shall be rendered solely for the protection and
benefit of Lender. Borrower shall not be entitled to claim any loss for
damage against Lender for failure to discharge its duties of inspection
properly, nor shall Lender or the Inspector be liable for failure of the
contractor or contractors to construct the improvements in strict
accordance with the Plans and Specifications, or for the failure of any
dealer, contractor, subcontractor, draftsman or laborer to deliver the
goods or perform the services required to be delivered or to be performed
by them, nor shall this Agreement be construed to make the Lender liable to
materialmen, craftsmen, laborers, or others for goods or services delivered
by them in or upon the Project, or debts or claims accruing to the Project
against Borrower or any contractor. Lender shall not be liable to
materialmen, contractors, subcontractors, laborers, or others, for goods or
services delivered or performed by them in or upon the Project or employed
in said construction, or for any debts or claims accruing in favor of any
such parties or against Borrower or others, or against the Project.
Borrower shall not be the agent of Lender for any purpose. Xxxxxx makes no
representations and assumes no duties or obligations as to third parties
concerning the quality of construction by Borrower of the Project or the
absence therefrom of defects. Any obligations to Borrower and/or Guarantor
incurred by Lender in connection with the Loan shall be the exclusive
obligation of First Union National Bank. Any officers, directors or
shareholders of First Union National Bank shall incur no obligations on an
individual basis to Borrower and/or Guarantor and shall not be individually
responsible to Borrower and/or Guarantor for the performance or
non-performance of any obligations of First Union National Bank.
9.10. Indemnification. Borrower does hereby and shall indemnify and
hold Lender, its directors, officers, employees, agents, successors and
assigns harmless of and from any and all loss or damage, of whatsoever
kind, and defend Lender and such other indemnified parties of, from and
against any suits, claims or demands, including, without limitation,
Lender's reasonable legal fees, paralegal fees, costs and expenses at all
trial, appellate, supplemental and bankruptcy proceedings or levels, on
account of any matters or anything arising out of this Agreement or in
connection with the Loan. Such obligations shall survive completion of the
Project and repayment of the Loan. The foregoing indemnification shall not
apply to any acts which are the result of the negligence or intentional
misconduct of Lender.
14
9.11 Waiver of Jury Trial.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
AND ALL RIGHT IT MAY HAVE TO A TRAIL BY JURY IN RESPECT OF ANY LITIGATION
(INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS OR THIRD-PARTY
CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LOAN AGREEMENT AND
THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN. BORROWER
HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE LENDER NOR THE
LENDER'S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF
RIGHT TO JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES THAT THE LENDER HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT, INCLUDING THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS, BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
9.12. Limitations as to Parties. This Agreement and the other Loan
Documents as pertaining to Borrower shall only be enforceable against
Borrower and, notwithstanding anything to the contrary in this Agreement
and/or the other Loan Documents, no present or future "Constituent Partner"
(as defined herein) in or "Affiliate" (as defined herein) of Borrower nor
any Affiliate of any person that is or becomes a Constituent Partner in
Borrower, shall be personally liable, directly or indirectly, under or in
connection with this Agreement and/or the other Loan Documents, or any
document, instrument or certificate securing or otherwise executed in
connection with this Agreement and/or the other Loan Documents, or any
amendments or modifications to any of the foregoing made at any time or
times, heretofore or hereafter, or in respect of any matter, condition,
injury or loss related to this Agreement and/or the other Loan Documents or
the Project; and the Lender and each of its successors and assignees waives
and does hereby waive any such personal liability. For purposes of this
Agreement and/or the other Loan Documents, and any such documents,
instruments and certificates, and any such amendments and modifications,
neither the negative capital account of any Constituent Partner in
Borrower, nor any obligation of any Constituent Partner in Borrower to
restore a negative capital account or to contribute capital to Borrower or
to any other Constituent Partner in Borrower, shall at any time be deemed
to be the property of or an asset of Borrower or such other Constituent
Partner and neither the Lender nor any of its successors or assignees shall
have any right to collect, enforce or proceed against or with respect to
any such negative capital account or a Constituent Partner's obligation to
restore or contribute. As used in this Paragraph, a 'Constituent Partner"
in Borrower shall mean any direct partner or member in Borrower and any
person that is a partner or member in any partnership or limited liability
company that, directly or indirectly, through one or more other
partnerships or limited liability companies, is a partner or member in
Borrower. As used herein, "person" means any individual, partnership,
corporation, limited liability company, trust or other entity.
"Affiliate" of a specified person or entity for the purposes of this
Agreement and/or the other Loan Documents, means (i) a director, trustee,
officer, employee, agent, partner, member, shareholder, subsidiary, or
attorney of such entity, or (ii) a person or entity which (either directly
or indirectly, through one or more intermediaries) controls, is under
common control with or is controlled by such person or entity, or (iii) any
person or entity that, directly or indirectly, is the beneficial owner of
ten percent (10%) or more of any class of voting securities (or otherwise
has a substantial beneficial interest) in such entity or of which such
person or entity is directly or indirectly the beneficial owner of ten
percent (10%) or more of any class of voting securities (or in which such
person or entity has a substantial beneficial interest), or (iv) any person
or entity that is a director, trustee, officer, employee, agent, partner,
member, shareholder, subsidiary or attorney of any of the foregoing. For
purposes of this definition, control of a specified person or entity
(including the correlative terms "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the specified
person or entity, whether through ownership of voting securities, the
ability to appoint the majority of an entity's trustees, directors or
persons in a similar capacity, or otherwise. For purposes of applying this
definition, the managing partner of a general partner or limited
partnership will be deemed to be in control thereof provided such managing
partner possesses the power to direct or cause the direction of the
management and policies of the partnership. The provisions of this Section
shall
15
survive any foreclosure of the Mortgage and discharge of the Note.
IN WITNESS WHEREOF, Xxxxxxxx and Bank, intending to be legally bound,
have duly executed and delivered this Loan Agreement as of the day and year
first above written.
BORROWER:
WESTON TOWN CENTER LLC, a Delaware limited
liability company
By: ARVIDA/JMB PARTNERS, a Florida general
partnership, its sole member
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
Date: May 19, 2000
BANK:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
------------------------------
16
FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this "First
Amendment") is made and entered into as of this 31st day of May, 2001, by
and between FIRST UNION NATIONAL BANK ("Bank"), and WESTON TOWN CENTER,
LLC, a Delaware limited liability company ("Borrower").
RECITALS:
--------
WHEREAS, Bank and Borrower entered into that certain Construction
Loan Agreement dated May 19,2000 (the "Loan Agreement") (unless otherwise
defined herein, all capitalized terms used herein shall have the same
meanings assigned to the same in the Loan Agreement), pursuant to which
Bank agreed to make a construction/mini-perm loan to Borrower and Borrower
agreed to accept the loan proceeds in the principal amount of Twenty
Million Dollars ($20,000,000.00); and
WHEREAS, Xxxx and Borrower have agreed to enter into this First
Amendment to modify certain terms and conditions of the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Bank and Borrower agree as follows:
1. In the event of any conflict between the terms of the Loan
Agreement and the terms of this First Amendment, the terms of this First
Amendment shall control.
2. Section 1.7 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
" 1.7. "Completion Date" means the completion of the Project,
including, but not limited to, vertical improvements, parking, paving,
landscaping, city water and sewer lines and electrical lines (but excluding
interior tenant improvements for any space not leased), upon the earlier to
occur of(i) the commencement of the "Mini-Perm Period" (as hereinafter
defined), or (ii) January 1,2002 (as may be extended due to force majeure).
3. Section 1.10 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"1.10. "Construction Period" means a period of nineteen (19) months
from the first full month following the date hereof, subject to extension
as provided in Section 5.5.3 of this Agreement.
4. Section 1.20 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
" 1.20. "Mini-Perm Period" means a period of seventeen (17) months
from the expiration of the Construction Period (upon Borrower satisfying
certain conditions set forth herein) until the "Maturity Date" of the Loan
(as defined in the Note).
5. This First Amendment may be executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument. A facsimile copy of
this First Amendment and any signatures hereon shall be considered for all
purposes as originals. Except as expressly modified by this First
Amendment, the terms and provisions of the Loan Agreement remain unmodified
and are in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by the duly authorized representatives the day and
year first above written.
BANK
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
BORROWER
WESTON TOWN CENTER, LLC, a Delaware
limited liability company
By: Arvida/JMB Partners, a Florida
general partnership,
its sole member
By: Arvida/JMB Managers, Inc.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
2
SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this "Second
Amendment") is made and entered into as of this 31st day of December, 2001,
by and between FIRST UNION NATIONAL BANK ("Bank"), and WESTON TOWN CENTER,
LLC, a Delaware limited liability company ("Borrower").
RECITALS:
--------
WHEREAS, Bank and Borrower entered into that certain Construction
Loan Agreement dated May 19,2000, as amended by that certain First
Amendment to Construction Loan Agreement dated May 31, 2001 (collectively,
the "Loan Agreement") (unless otherwise defined herein, all capitalized
terms used herein shall have the same meanings assigned to the same in the
Loan Agreement), pursuant to which Bank agreed to make a
construction/mini-penn loan to Borrower and Borrower agreed to accept the
loan proceeds in the principal amount of Twenty Million Dollars
($20,000,000.00); and
WHEREAS, Bank and Borrower have agreed to enter into this Second
Amendment to modify certain terms and conditions of the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged. Bank and Xxxxxxxx agree as follows:
1. In the event of any conflict between the terms of the Loan
Agreement and the terms of this Second Amendment, the terms of this Second
Amendment shall control.
2. Section 1.7 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
" 1.7. "Completion Date" means the completion of the Project,
including, but not limited to, vertical improvements, parking, paving,
landscaping, city water and sewer lines and electrical lines (but excluding
interior tenant improvements for any space not leased), upon the earlier to
occur of (i) the commencement of the "Mini-Perm Period" (as hereinafter
defined), or (ii) July 1,2002 (as may be extended due to force majeure).
3. Section 1.10 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"1.10. "Construction Period" means a period of twenty-five (25)
months from the first full month following the date hereof, subject to
extension as provided in Section 5.5.3 of this Agreement.
4. Section 1.20 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"1.20. "Mini-Perm Period" means a period of eleven (11) months from
the expiration of the Construction Period (upon Borrower satisfying certain
conditions set forth herein) until the "Maturity Date" of the Loan (as
defined in the Note).
5. This Second Amendment maybe executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument. A facsimile copy of
this Second Amendment and any signatures hereon shall be considered for all
purposes as originals. Except as expressly modified by this Second
Amendment, the terms and provisions of the Loan Agreement remain unmodified
and are in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by the duly authorized representatives the day and
year first above written.
BANK
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
BORROWER
WESTON TOWN CENTER, LLC, a Delaware
limited liability company
By: Arvida/JMB Partners, a Florida
general partnership,
its sole member
By: Arvida/JMB Managers, Inc.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
PROMISSORY NOTE
$20,000,000 May 19, 2000
Fort Lauderdale, Florida
FOR VALUE RECEIVED, WESTON TOWN CENTER, LLC, a Delaware limited
liability company (the "Borrower"), hereby promises to pay to the order of
FIRST UNION NATIONAL BANK (the "Bank"), at its offices at 000 Xxxx Xxxxxxx
Xxxx., 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, or such other place as
Bank shall designate in writing from time to time, the principal sum of
Twenty Million Dollars ($20,000,000) (the "Loan"), or so much thereof as
shall be advanced pursuant to the Construction Loan Agreement of even date
herewith between Borrower and Bank (the "Loan Agreement"), in United States
Dollars, together with interest thereon as hereinafter provided. The Loan
Agreement is hereby incorporated herein by reference.
1. INTEREST RATE.
Interest on the entire disbursed and unpaid principal balance of this
Note from time to time outstanding shall be charged at a rate equal to 1
month LIBOR plus one hundred eighty (180) basis points ("LIBOR-Based Rate")
as reasonably determined by Bank in the manner described below prior to the
commencement of each "Interest Period" (as hereinafter defined). Interest
shall be computed on the outstanding principal balance for the actual
number of days which have elapsed from the date of each advance, calculated
on the basis of a three hundred sixty (360) day year. The LIBOR-Based Rate
shall remain in effect, subject to the provisions hereof, from and
including the first day of the Interest Period to and excluding the last
day of the Interest Period for which it is determined.
"LIBOR" means, with respect to each day during each Interest Period,
the rate for U.S. dollar deposits of that many months maturity as reported
on Telerate page 3750 as of 11:00.a.m., London time, on the second London
business day before the relevant Interest Period begins (or if not so
reported, then as reasonably determined by Bank from another recognized
source or interbank quotation).
"Interest Period" means, initially, the period commencing on the date
hereof and ending on the first "Payment Date" (as hereinafter defined), and
thereafter, each period commencing on the last day of the immediately
preceding Interest Period and ending on the next Payment Date, provided,
(i) any Interest Period that would otherwise end on a day which is not a
New York business day shall be extended to the next New York business day,
unless such extension would carry such Interest Period into the next month,
in which event such Interest Period shall end on the preceding New York
business day; (ii) any Interest Period that ends in a month for which there
is no day which numerically corresponds to the Payment Date shall end on
the last New York business day of such month; and (iii) any Interest Period
that would otherwise extend past the "Maturity Date" shall end on the
"Maturity Date" (as the "Maturity Date" is defined below).
However, commencing upon satisfaction of the "First Guarantee
Reduction Conditions" (as hereinafter defined) and subject to this Note
being in good standing, this Note shall bear interest on the entire
disbursed and unpaid principal balance from time to time outstanding at a
rate equal to one month LIBOR plus one hundred seventy (170) basis points
(which shall become the new LIBOR-Based Rate). Further, commencing upon
satisfaction of the "Second Guarantee Reduction Conditions" (as hereinafter
defined) and subject to this Note being in good standing, the LIBOR-Based
Rate shall be further reduced to one month LIBOR plus one hundred fifty
(150) basis points (which shall become the new LIBOR-Based Rate).
For the purposes of this Note, the "First Guarantee Reduction
Conditions" are as follows: (a) the shell certificate of occupancy for the
improvements constituting the local space at the "Project" (as defined in
the Loan Agreement) has been issued and the certificate of occupancy has
been issued for Publix Supermarket; (b) Borrower is in compliance with the
"Guarantee Reduction Pre-Leasing Requirement" (as hereinafter defined), and
(c) Publix Supermarket has taken occupancy of its space and commenced
paying rent.
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For purposes of this Note, the Second Guarantee Reduction Conditions are as
follows: (a) the Note converts to the "Mini-Perm Period" (as hereinafter
defined); and (b) the Project achieves "Stabilization" (as hereinafter
defined).
The Guarantee Reduction Pre-Leasing Requirement shall be achieved at
such time that seventy percent (70%) of the net leaseable square feet of
the Project (of which 37,887 net leaseable square feet may be credited by
the "Publix Lease" as defined in the Loan Agreement) is pre-leased under
Bank-approved leases (with Bank approval not to be unreasonably withheld)
with terms of not less than five (5) years and at minimum rents and CAM
rates not less than pro-forma minimums.
"Stabilization" shall occur when: (a) this Note converts to the
Mini-Perm Period; (b) the Project achieves a minimum debt coverage ratio
("DCR") of 1.25X for six (6) consecutive months; and (c) the loan to value
of the Project does not exceed seventy-five percent (75%) of the stabilized
value of the Project. For purposes of calculating the DCR, "Rental Income"
shall be based on the lesser of actual occupancy or 93%: however, occupancy
must not be less than 80%. "Expenses" shall be based on the greater of: (a)
actual expenses inclusive of replacement reserves and management fees, or
(b) the sum of (i) operating expenses of $5.60 per net leaseable square
foot, plus (ii) replacement reserves of $0.25 per net leaseable square
foot, plus (iii) management fees equal to the greater of actual or 4% of
effective gross income. "Debt Service" shall be based on the then
outstanding principal balance, plus any unfunded commitment of this Note, a
25-year amortization, and an interest rate equal to the 10-year Treasury
plus 2.50% per annum.
2. PAYMENT OF PRINCIPAL AND INTEREST.
2.1. Construction Period. Interest only on the outstanding
principal balance shall be due and payable monthly in arrears commencing on
the 1st day of June, 2000 and continuing on the 1st day of each month
thereafter (each, a "Payment Date") for a period of twelve (12) Payment
Dates ("Construction Period"). The Construction Period shall expire on the
day before the "Scheduled Conversion Date" (as hereinafter defined),
subject to extension upon certain conditions being satisfied in the event
of force majeure as provided in Section 5.5.3 of the Loan Agreement.
2.2. Mini-Perm Period. Commencing on the 1st day of June, 2001 and
continuing on the 1st day of each month thereafter until the Maturity Date
("Mini-Perm Period"), monthly principal and interest payments shall be due
and payable on the 1st day of each month (each, a "Payment Date") in
consecutive monthly installments in an amount based on the then outstanding
principal balance of this Note, plus any unfunded commitment of this Note,
a 25 year amortization and an assumed interest rate based on the 10-year
Treasury plus two hundred fifty (250) basis points. The commencement of
the Mini-Perm Period is subject to extension upon certain conditions being
satisfied in the event of force majeure as provided in Section 5.5.3 of the
Loan Agreement.
2.3 Maturity Date. The entire unpaid principal amount hereof,
together with accrued and unpaid interest thereon and all other amounts
payable hereunder shall be due and payable on May 31, 2003 (the "Maturity
Date"). Notwithstanding the foregoing, if the conditions to conversion set
forth in the Loan Agreement are not satisfied prior to the 1st day of June,
2001 (the "Scheduled Conversion Date"), the Construction Period shall not
convert to the Mini-Perm Period and the outstanding principal balance of
this Note, together with all accrued and unpaid interest thereon and all
other amounts payable under the Loan Documents, shall immediately be due
and payable by Borrower to Bank upon expiration of the Construction Period.
The Maturity Date is subject to extension upon certain conditions being
satisfied in the event of force majeure as provided in Section 5.5.3 of the
Loan Agreement.
3. APPLICATION OF PAYMENTS. Except as otherwise specified herein, each
payment or prepayment, if any, made under this Note shall be applied to pay
late charges, accrued and unpaid interest, principal, escrows (if any), and
any other fees, costs and expenses which Borrower is obligated to pay under
this Note, in such order as Bank may elect from time to time in its sole
discretion.
4. TENDER OF PAYMENT. All payments on this Note are payable on or
before 2:00 p.m. on the due date thereof, at the office of Bank specified
above and shall be credited on the date the funds become available in
lawful money of the United States. Notwithstanding the foregoing and
subject to the terms and conditions of the Loan Agreement, payments of
interest on the Loan from any interest reserve to be established under the
Loan Agreement shall be made as a direct charge by Bank, without notice to
or further authorization from Borrower, against such interest reserve, with
Borrower obligated to pay all interest on the Loan in excess of the amounts
available under the interest reserve pursuant to the provisions of the
immediately preceding
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sentence. All sums payable to the bank which are due on a day on which
Bank offices are open for business shall be paid on the next succeeding
business day and such extended time shall be included in the computation of
interest.
5. LATE CHARGE. In the event that any installment of principal or
interest required to be made by Borrower under this Note shall not be
received by Bank within five (5) days after its due date. Borrower shall
pay to Bank, on demand, a late charge of five percent (5%) of such
delinquent payment. The foregoing right is in addition to, and not in
limitation of, any other rights which Bank may have upon Xxxxxxxx's failure
to make timely payment of any amount due hereunder.
6.PREPAYMENT.
This Note may be prepaid in whole or in part at any time; however,
Borrower shall indemnify Bank against Bank's loss or expense in employing
deposits as a consequence (a) of Borrower's failure to make any payment
when due under this Note, or (b) any prepayment of this Note on a date
other than the last day of the Interest Period ("Indemnified Loss or
Expense"). The amount of such Indemnified Loss or Expense shall be the
actual cost incurred by Bank to break its contract, if any, in the London
interbank market. Any prepayment shall include accrued and unpaid interest
to the date of prepayment on the principal amount prepaid and all other
sums due and payable under this Note. All payments received on this Note
may be applied in such order as Bank, in its sole discretion, shall
determine. Nothing herein shall be deemed to alter or affect any
obligations that Borrower may have to Bank under any interest rate swap
agreements.
7. SECURITY FOR THE NOTE.
This Note is executed and delivered in accordance with a commercial
transaction described in the Loan Agreement. As security for the payment of
the monies owing under this Note, Xxxxxxxx has delivered or has caused to
be delivered to Bank the following (each a "Loan Document" and collectively
with this Note, the Loan Agreement, and any other guaranty, document,
certificate or instrument executed by Borrower or any other obligated party
in connection with the Loan, together with all amendments, modifications,
renewals or extensions thereof, the "Loan Documents"): (a) Mortgage and
Security Agreement (the "Mortgage") on certain real property and the
improvements situated thereon in the City of Weston; County of Broward,
State of Florida, as more fully described in the Mortgage (the "Property"),
(b) an Absolute Assignment of Leases and Rents (the "Assignment of Leases")
assigning all of the assignor's rights as lessor under all leases affecting
the Property; and (c) Guaranty Agreement (the "Guaranty") by Arvida/JMB
Partners, L.P., a Delaware limited partnership ("Guarantor").
8. DEFAULT RATE. From and after the Maturity Date upon the occurrence
of any "Event of Default" by Borrower under the Loan Documents after the
giving of any required notice and the expiration of any grace period, if
any [regardless of whether or not the Maturity Date is accelerated], this
Note shall bear interest until such Event of Default is cured at five
percent (5%) per annum in excess of this Note's interest rate then in
effect whereupon, at the time such Event of Default is cured, the interest
rate shall return to the rate existing immediately prior to the time of
such Event of Default. Specifically as to payment obligations by Borrower
under this Note, there shall be a five (5) day grace period without any
notice required from Bank. Such Default Rate of interest shall be payable
upon demand, but in no event later than when scheduled interest payments
are due, and shall also be charged on the amounts owed by Borrower to Bank
pursuant to any judgments entered in favor of Bank with respect to this
Note.
9. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Bank as follows:
9.1. Organization, Powers. Borrower (i) is a limited liability
company duly organized, validly existing and in good standing under the
laws of the state of its organization, and is authorized to do business in
each other jurisdiction wherein its ownership of property or conduct of
business legally requires such authorization; (ii) has the power and
authority to own its properties and assets and to carry on its business as
now being conducted and as now contemplated; and (iii) has the power and
authority to execute, deliver and perform, and by all necessary action has
authorized the execution, delivery and performance of, all of its
obligations under each Loan Document to which it is a party.
9.2 Execution of Loan Documents. Each of the Loan Documents to
which Xxxxxxxx is a party has been duly executed and delivered by Xxxxxxxx.
Execution, delivery and performance of each of the Loan Documents to which
Xxxxxxxx is a party will not: (i) violate any of its organizational
documents, provision of law, order of any court, agency or other
instrumentality of government, or any provision of any indenture, agreement
or other instrument to which it is a party or by which it or any of its
properties is bound; (ii) result in
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the creation or imposition of any lien, charge or encumbrance of any
nature, other than the liens created by the Loan Documents; and (iii)
revoke any authorization, consent, approval, license exemption of or filing
or registration with, any court or governmental authority.
9.3. Obligations of Borrower. Each of the Loan Documents to which
Borrower is a party is the legal, valid and binding obligation of Borrower,
enforceable against it in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws or
equitable principles relating to or affecting the enforcement of creditors'
rights generally. Borrower is obtaining the Loan for commercial purposes.
9.4. Litigation. There is no action, suit or proceeding at law or
in equity or by or before any governmental authority, agency or other
instrumentality now pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or any of its properties or rights which, if
adversely determined, would materially impair or affect: (i) the value of
any collateral securing this Note; (ii) Borrower's right to carry on its
business substantially as now conducted (and as now contemplated); (iii)
its financial condition; or (iv) its capacity to consummate and perform its
obligations under the Loan Documents to which Borrower is a party.
9.5. No Defaults. Borrower is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained herein or in any material agreement or instrument to
which it is a party or by which it or any of its properties is bound.
9.6. No Untrue Statements. No Loan Document or other document,
certificate or statement furnished to Bank by or on behalf of Borrower
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein
and therein not misleading. Borrower acknowledges that all such statements,
representations and warranties shall be deemed to have been relied upon by
Bank as an inducement to make the Loan to Borrower.
10. COVENANTS
10.1. Optional Hedge. Borrower shall have the option to hedge the
floating interest expense during the term of this Note by maintaining an
interest rate swap agreement with Bank or other counterparty reasonably
acceptable to Bank in a notional amount equal to the principal balance of
this Note and providing for a fixed rate reasonably satisfactory to Bank,
and containing such other terms and conditions as shall be reasonably
acceptable to Bank.
10.2. INTENTIONALLY DELETED.
10.3. Operating Accounts. Borrower shall maintain its primary
operating accounts for the Project at Bank.
10.4. Financial Statements: Compliance Certificate.
10.4.1. Borrower shall furnish to Bank the following
financial information:
(a) Not later than one hundred twenty (120) days after
the end of each fiscal year, annual financial statements (annual balance
sheet and a profit/loss statement) of Borrower including, without
limitation, statements of financial condition, income and expense statement
relating to the Project, a listing of all contingent liabilities, and any
other financial information reasonably requested by Bank.
(b) Not later than sixty (60) days after the end of
each interim fiscal half year, management-prepared financial statements of
Borrower including, without limitation, statements of financial condition,
income and expense statement relating to the Project, a listing of all
contingent liabilities, certified rent roll, summary of leases, and any
other financial information reasonably requested by Bank.
(c) Not later than thirty (30) days after filing with
the Internal Revenue Service, a true and complete copy of the federal tax
returns, including all schedules, of Borrower.
(d) Not later than fifteen (15) days after execution,
copies of all permitted new or modified leases of the Property.
(e) Such other information respecting the operations of
Borrower and/or the Project as Bank may from time to time reasonably
request.
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10.4.2. Borrower shall furnish to Bank, with each set of
financial statements described herein a compliance certificate signed by
Xxxxxxxx's officer certifying that to such officer's actual knowledge (i)
all representations and warranties of Borrower set forth in this Note or
any other Loan Document remain true and correct in all material respects as
of the date of such compliance certificate; (ii) none of the covenants of
Borrower contained in this Note or any other Loan Document has been
breached and not cured; and (iii) no event has occurred which constitutes
an Event of Default (or which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default) under this Note or any
other Loan Document, which event is continuing or not cured. In addition,
Borrower shall promptly notify Bank of the occurrence of any Event of
Default of which Borrower has actual knowledge, material adverse litigation
or material adverse change in its financial condition.
10.5. Indemnification
10.5.1. Borrower hereby indemnifies and agrees to defend
and hold harmless Bank, its officers, employees and agents, from and
against any and all losses, damages, or liabilities and from any suits,
claims or demands, including reasonable attorneys' fees incurred in
investigating or defending such claim, suffered by any of them and caused
by, arising out of, or in any way connected with the Loan Documents or the
transactions contemplated therein (unless determined by a final judgment of
a court of competent jurisdiction to have been caused by the gross
negligence or willful misconduct of any of the indemnified parties)
including, without limitation: (i) disputes with any architect, general
contractor, subcontractor, materialman or supplier, or on account of any
act or omission to act by Bank in connection with the Project; (ii) losses,
damages (other than consequential damages), expenses or liabilities
sustained by Bank in connection with any environmental inspection,
monitoring, sampling or cleanup of the Project required or mandated by any
applicable environmental law; (iii) claims by any tenant or any other party
arising under or in connection with any lease of all or any portion of the
Project; (iv) any untrue statement of a material fact contained in
information submitted to Bank by Borrower or the omission of any material
fact necessary to be stated therein in order to make such statement not
misleading; (v) the failure of Borrower to perform any obligations herein
required to be performed by Borrower; and (vi) the ownership, construction,
occupancy, operation, use or maintenance of the Project.
10.5.2. In case any action shall be brought against Bank,
its officers, employees or agents, in respect to which indemnity may be
sought against Borrower, Bank or such other party shall promptly notify
Borrower and Borrower shall assume the defense thereof, including the
employment of counsel selected by Xxxxxxxx and reasonably satisfactory to
Bank, the payment of all costs and expenses and the right to negotiate and
consent to settlement. In addition, Bank shall have the right, at its sole
option, to employ separate counsel in any such action and to participate in
the defense thereof, all at Bank's sole cost and expense. Borrower shall
not be liable for any settlement of any such action effected without its
written consent (unless Xxxxxxxx fails to defend such claim), but if
settled with Xxxxxxxx's written consent, or if there be a final
non-appealable judgment for the claimant in any such action, Xxxxxxxx
agrees to indemnify and hold harmless Bank from and against any loss or
liability by reason of such settlement or judgment.
10.5.3. Documentary and Intangible Taxes. Borrower shall
be liable for all documentary stamp and intangible taxes assessed in
connection with the Loan as of the date hereof or from time to time during
the term hereof.
10.5.4. Survival. The provisions of this Section 10.5
shall survive the repayment or other satisfaction of the Liabilities.
11. EVENTS OF DEFAULT. Each of the following shall constitute an event
of default hereunder (an "Event of Default"): (a) the failure of Borrower
to pay any amount of principal or interest hereunder within five (5) days
from when due and payable; (b) the occurrence of any other default in any
term, covenant or condition hereunder in any material respect and the
continuance of such breach for a period of thirty (30) days after written
notice thereof shall have been given to Borrower by Bank; provided,
however, that in the event that such breach is not capable of being cured
within such thirty (30) day period (despite the diligent, good-faith
efforts of Borrower to effect such cure), then provided Borrower diligently
commences to cure within such thirty (30) day period and thereafter
diligently pursues the cure of such breach, then Borrower shall have a
reasonable period of time to cure such breach not to exceed one hundred
eighty (180) days after written notice was given to Borrower of such breach
(it being understood and agreed that, notwithstanding anything contained
under the Loan Documents to the contrary, in no event shall Bank be
obligated to continue to advance any Loan proceeds to Borrower under the
Loan Agreement until such time as such breach is so cured); or (c) any
Event of Default under the Loan Agreement, the Mortgage or any other Loan
Document after the giving of any specifically required notice, if any, and
the expiration of any specifically applicable grace period, if any.
5
12. REMEDIES. If an Event of Default exists, subject to the terms of the
Note and the other Loan Documents, Bank may exercise any right, power or
remedy permitted by law or as set forth herein or in the Loan Agreement,
the Mortgage or any other Loan Document including, without limitation, the
right to declare the entire unpaid principal amount hereof and all interest
accrued hereon, and all other sums secured by the Mortgage or any other
Loan Document, to be, and such principal, interest and other sums shall
thereupon become, immediately due and payable.
13. MISCELLANEOUS
13.1. Disclosure of Financial Information. Bank is hereby authorized
to disclose any financial or other information about Borrower to any
regulatory body or agency having Jurisdiction over Bank and to any present,
future or prospective participant or successor in interest in the Loan.
The information provided may include, without limitation, amounts, terms,
balances, payment history, return item history and any financial or other
information about Borrower.
13.2. Integration. This Note and the other Loan Documents constitute
the sole agreement of the parties with respect to the transaction
contemplated hereby and supersede all oral negotiations and prior writings
with respect thereto.
13.3. Attorneys' Fees and Expenses. If Bank retains the services of
counsel by reason of a default or an Event of Default hereunder or under
any of the other Loan Documents, or for examination of matters subject to
Bank's approval under the Loan Documents, all costs of suit and all
reasonable attorneys' fees and expenses so incurred by Bank shall be paid
by Xxxxxxxx, on demand, and shall be deemed part of the obligations
evidenced hereby.
13.4. No Implied Waiver. Bank shall not be deemed to have modified or
waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and signed by Bank, and then only to the extent
specifically set forth therein. A waiver in one event shall not be
construed as continuing or as a waiver of or bar to such right or remedy in
a subsequent event. After any acceleration of, or the entry of any judgment
on, this Note, the acceptance by Bank of any payments by or on behalf of
Borrower on account of the indebtedness evidenced by this Note shall not
cure or be deemed to cure any Event of Default or reinstate or be deemed to
reinstate the terms of this Note absent an express written agreement duly
executed by Bank and Borrower.
13.5. Waiver. Xxxxxxxx, jointly and severally, waives demand,
notice, presentment, protest, demand for payment, notice of dishonor,
notice of protest and diligence of collection of this Note. Borrower
consents to any and all extensions of time, renewals, waivers, or
modifications that may be granted by Bank with respect to the payment or
other provisions of this Note, and to the release of any collateral, with
or without substitution. Xxxxxxxx agrees that makers, endorsers,
guarantors and sureties may be added or released without notice and without
affecting Borrower's liability hereunder. The liability of Borrower shall
not be affected by the failure of Bank to perfect or otherwise obtain or
maintain the priority or validity of any security interest in any
collateral. The liability of Borrower shall be absolute and unconditional
and without regard to the liability of any other party hereto.
13.6. No Usurious Amounts. Anything herein contained to the contrary
notwithstanding, it is the intent of the parties that Borrower shall not be
obligated to pay interest hereunder at a rate which is in excess of the
maximum rate permitted by law. If by the terms of this Note, Borrower is
at any time required to pay interest at a rate in excess of such maximum
rate, the rate of interest under this Note shall be deemed to be
immediately reduced to such maximum legal rate and the portion of all prior
interest payments in excess of such maximum legal rate shall be applied to
and shall be deemed to have been payments in reduction of the outstanding
principal balance, unless Borrower shall notify Bank, in writing, that
Borrower elects to have such excess sum returned to it forthwith. Xxxxxxxx
agrees that in determining whether or not any interest payable under this
Note exceeds the highest rate permitted by law, any non-principal payment,
including without limitation, late charges, shall be deemed to the extent
permitted by law to be an expense, fee or premium rather than interest. In
addition, Bank may, in determining the maximum rate of interest allowed
under applicable law, as amended from time to time, take advantage of: (i)
the rate of interest permitted by Section 687.12, Florida Statutes
("Interest rates; parity among licensed lenders or creditors") and 12
United States Code, Sections 85 and 86, and (ii) any other law, rule or
regulation in effect from time to time, available to Bank which exempts
Bank from any limit upon the rate of interest it may charge or grants to
Bank the right to change a higher rate of interest than allowed by Florida
Statutes, Chapter 687.
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13.7. Partial Invalidity. The invalidity or unenforceability of any
other more provisions of this Note shall not render any other provision
invalid or unenforceable. In lieu of any invalid or unenforceable
provision, there shall be added automatically a valid and enforceable
provision as similar in terms to such invalid or unenforceable provision as
may be possible.
13.8. Binding Effect. The covenants, conditions, waivers, releases
and agreements contained in this Note shall bind, and the benefits thereof
shall inure to, the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
13.9. Modifications. This Note may not be supplemented, extended,
modified or terminated except by an agreement in writing signed by the
party against whom enforcement of any such waiver, change, modification or
discharge is sought.
13.10. Sales or Participations. Bank may from time to time sell or
assign, in whole or in part, or grant participations in, the Loan, this
Note and/or the obligations evidenced thereby with Xxxxxxxx's consent which
will not be unreasonably withheld; provided that if Xxxxxxxx fails to
respond within five (5) business days of receipt of such request. Borrower
shall be deemed to have approved such sale or participation. The holder of
any such sale, assignment or participation, if the applicable agreement
between Bank and such holder so provides, shall be: (a) entitled to all of
the rights, obligations and benefits of Bank; and (b) deemed to hold and
may exercise the rights of setoff or banker's lien with respect to any and
all obligations of such holder to Borrower, in each case as fully as though
Borrower were directly indebted to such holder. Bank shall give notice to
Borrower of such sale, assignment or participation, if possible, within
five (5) business days of the completion thereof.
13.11. Jurisdiction. Borrower irrevocably appoints each and every
owner, partner and/or officer of Borrower as its attorneys upon whom may be
served, by certified mail at the address set forth below, any notice,
process or pleading in any action or proceeding against it arising out of
or in connection with this Note or any other Loan Document; and Borrower
hereby consents that any action or proceeding against it be commenced and
maintained in any court within the State of Florida by service of process
on any such owner, partner and/or officer; and Xxxxxxxx agrees that the
courts of such State shall have jurisdiction with respect to the subject
matter hereof and the person of Xxxxxxxx. Xxxxxxxx agrees not to assert any
defense to any action or proceeding initiated by Bank in Broward County,
Florida, based upon improper venue or inconvenient forum.
13.12. Notices. All notices and communications under this Note shall
be in writing and shall be given by either (a) hand-delivery, (b) first
class mail (postage prepaid), or (c) reliable overnight commercial courier
(charges prepaid), to the addresses listed in the Mortgage. Notice shall be
deemed to have been given and received: (i) if by hand delivery, upon
delivery; (ii) if by mail, three (3) calendar days after the date first
deposited in the United States mail; and (iii) if by overnight courier, on
the date scheduled for delivery. A party may change its address by giving
written notice to the other party as specified herein.
13.13. Governing Law. This Note shall be governed by and construed
in accordance with the substantive laws of the State of Florida without
reference to conflict of laws principles.
13.14. Joint and Several Liability. If Borrower consists of more than
one person or entity, the word "Borrower" shall mean each of them and their
liability shall be joint and several.
13.15. Continuing Enforcement. If, after receipt of any payment of
all or any part of this Note, Bank is compelled or agrees, for settlement
purposes, to surrender such payment to any person or entity for any reason
(including, without limitation, a determination that such payment is void
or voidable as a preference or fraudulent conveyance, an impermissible
setoff, or a diversion of trust funds), then this Note and the other Loan
Documents shall continue in full force and effect or be reinstated, as the
case may be, and Borrower shall be liable for, and shall indemnify, defend
and hold harmless Bank with respect to, the full amount so surrendered.
The provisions of this Section shall survive the cancellation or
termination of this Note and shall remain effective notwithstanding the
payment of the obligations evidenced hereby, the release of any security
interest, lien or encumbrance securing this Note or any other action which
Bank may have taken in reliance upon its receipt of such payment. Any
cancellation, release or other such action shall be deemed to have been
conditioned upon any payment of the obligations evidenced hereby having
become final and irrevocable.
13.16. Arbitration. Upon demand of either Borrower or Bank, whether
made before or after institution of any judicial proceeding, any claim or
controversy arising out of or relating to the Loan Documents (a "Dispute")
shall be resolved by binding arbitration conducted under and governed by
the Commercial Financial Disputes Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association (the
7
"AAA") and the Federal Arbitration Act. The arbitration shall be conducted
by three arbitrators with Borrower and Bank each selecting one arbitrator
and those two arbitrators mutually agreeing on the selection of the third
arbitrator. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed
in the future. A judgment upon the award may be entered in any court
having jurisdiction. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
SPECIAL RULES. All arbitration hearings shall be conducted in the city
named in the address of Bank first stated above. A hearing shall begin
within 90 days of demand for arbitration and all hearings shall conclude
within 120 days of demand for arbitration. These time limitations may not
be extended unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in Rule 51 et
seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000.00. Arbitrators shall be licensed attorneys selected from the
Commercial Financial Dispute Arbitration Panel of the AAA. The parties do
not waive applicable Federal or state substantive law except as provided
herein. Preservation and Limitation of Remedies. Notwithstanding the
preceding binding arbitration provisions, Borrower and Bank agree to
preserve, without diminution, certain remedies that any party may exercise
before or after an arbitration proceeding is brought. Among other things
and not by way of limitation, the parties shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents,
set-off, and peaceful possession of personal property; and (iii) obtaining
provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing
a voluntary or involuntary bankruptcy proceeding. Any claim or controversy
with regard to any party's entitlement to such remedies is a Dispute.
13.17. Waiver of Jury Trial. BORROWER AND BANK AGREE THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER
CLAIM OR COUNTERCLAIM, BROUGHT BY BANK OR BORROWER, ON OR WITH RESPECT TO
THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH
RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A
JURY. BANK AND BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN
ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, BORROWER WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR
IN ADDITION TO, ACTUAL DAMAGES. BORROWER ACKNOWLEDGES AND AGREES THAT THIS
SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT BANK WOULD
NOT EXTEND CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE
NOT A PART OF THIS NOTE.
14. LIMITATIONS AS TO PARTIES. This Note and the other Loan Documents as
pertaining to Borrower shall only be enforceable against Borrower and,
notwithstanding anything to the contrary in this Note and/or the other Loan
Documents, no present or future "Constituent Partner" (as defined herein)
in or "Affiliate" (as defined herein) of Borrower, nor any Affiliate of any
person that is or becomes a Constituent Partner in Borrower, shall be
personally liable, directly or indirectly, under or in connection with this
Note and/or the other Loan Documents, or any document, instrument or
certificate securing or otherwise executed in connection with this Note
and/or the other Loan Documents, or any amendments or modifications to any
of the foregoing made at any time or times, heretofore or hereafter, or in
respect of any matter, condition, injury or loss related to this Note
and/or the other Loan Documents or the Project; and the Bank and each of
its successors and assignees waives and does hereby waive any such personal
liability. For purposes of this Note and/or the other Loan Documents, and
any such documents, instruments and certificates, and any such amendments
and modifications, neither the negative capital account of any Constituent
Partner in Borrower, nor any obligation of any Constituent Partner in
Borrower to restore a negative capital account or to contribute capital to
Borrower or to any other Constituent Partner in Borrower, shall at any time
be deemed to be the property of or an asset of Borrower or such other
Constituent Partner and neither the Bank nor any of its successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or a Constituent
Partner's obligation to restore or contribute. As used in this Paragraph, a
"Constituent Partner" in Borrower shall mean any direct partner or member
in Borrower and any person that is a partner or member in any partnership
or limited liability company that, directly or indirectly, through one or
more other partnerships or limited liability companies, is a partner or
member in Borrower. As used herein, "person" means any individual,
partnership, corporation, limited liability company, trust or other entity.
"Affiliate" of a specified person or entity for the purposes of this Note
or the other Loan Documents, means (i) a director, trustee, officer,
employee, agent,
8
partner, member, shareholder, subsidiary, or attorney of such entity, or
(ii) a person or entity which (either directly or indirectly, through one
or more intermediaries) controls, is under common contact with or is
controlled by such person or entity, or (iii) any person or entity that,
directly or indirectly, is the beneficial owner of ten percent (10%) or
more of any class of voting securities (or otherwise has a substantial
beneficial interest) in such entity or of which such person or entity is
directly or indirectly the beneficial owner of ten percent (10%) or more of
any class of voting securities (or in which such person or entity has a
substantial beneficial interest), or (iv) any person or entity that is a
director, trustee, officer, employee, agent, partner, member, shareholder,
subsidiary or attorney of any of the foregoing. For purposes of this
definition, control of a specified person or entity (including the
correlative terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of the specified person or entity,
whether through ownership of voting securities, the ability to appoint the
majority of an entity's trustees, directors or persons in a similar
capacity, or otherwise. For purposes of applying this definition, the
managing partner of a general partner or limited partnership will be deemed
to be in control thereof provided such managing partner possesses the power
to direct or cause the direction of the management and policies of the
partnership. The provisions of this Section shall survive any foreclosure
of the Mortgage and discharge of this Note.
IN WITNESS WHEREOF, Xxxxxxxx, intending to be legally bound, has duly
executed and delivered this Note as of the day and year first above
written.
BORROWER:
WESTON TOWN CENTER LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partner,
as its sole member
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
Date:May 19, 2000
------------------------------
9
FIRST AMENDMENT TO PROMISSORY NOTE
----------------------------------
THIS FIRST AMENDMENT TO PROMISSORY NOTE (this "First Amendment") is
made and entered into as of this 31st day of May, 2001, by and between
FIRST UNION NATIONAL BANK ("Bank"), and WESTON TOWN CENTER, LLC, a Delaware
limited liability company ("Borrower").
RECITALS:
--------
WHEREAS, on May 19,2000, Xxxxxxxx executed that certain Promissory
Note in favor of Bank (the "Note") (unless otherwise defined herein, all
capitalized terms used herein shall have the same meanings assigned to the
same in the Note), pursuant to which Borrower has agreed to pay to Bank the
principal sum of Twenty Million Dollars ($20,000,000.00); and
WHEREAS, Xxxx and Borrower have agreed to enter into this First
Amendment to modify certain terms and conditions of the Note.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Bank and Borrower agree as follows:
1. In the event of any conflict between the terms of the Note and
the terms of this First Amendment, the terms of this First Amendment shall
control.
2. Section 2 of the Note is hereby deleted in its entirety and
replaced with the following:
A2. PAYMENT OF PRINCIPAL AND INTEREST.
2.1. Construction Period. Interest only on the outstanding
principal balance shall be due and payable monthly in arrears commencing on
the 1st day of June, 2000 and continuing on the 1 st day of each month
thereafter (each, a "Payment Date") for a period of nineteen (19) Payment
Dates ("Construction Period"). The Construction Period shall expire on the
day before the "Scheduled Conversion Date" (as hereinafter defined),
subject to extension upon certain conditions being satisfied in the event
offeree majeure as provided in Section 5.5.3 of the Loan Agreement.
2.2. Mini-Perm Period. Commencing on the 1st day of January,
2002 and continuing on the 1st day of each month thereafter until the
Maturity Date ("Mini-Perm Period"), monthly principal and interest payments
shall be due and payable on the 1 st day of each month (each, a "Payment
Date") in consecutive monthly installments in an amount based on the then
outstanding principal balance of this Note, plus any unfunded commitment of
this Note, a 25 year amortization and an assumed interest rate based on the
10-year Treasury plus two hundred fifty (250)
basis points. The commencement of the Mini-Perm Period is subject to
extension upon certain conditions being satisfied in the event of force
majeure as provided in Section 5.5.3 of the Loan Agreement.
2.3 Maturity Date. The entire unpaid principal amount hereof,
together with accrued and unpaid interest thereon and all other amounts
payable hereunder shall be due and payable on May 31,2003 (the "Maturity
Date"). Notwithstanding the foregoing, if the conditions to conversion set
forth in the Loan Agreement are not satisfied prior to the 1st day of
January, 2002 (the "Scheduled Conversion Date"), the Construction Period
shall not convert to the Mini-Perm Period and the outstanding principal
balance of this Note, together with all accrued and unpaid interest thereon
and all other amounts payable under the Loan Documents, shall immediately
be due and payable by Borrower to Bank upon expiration of the Construction
Period. The Maturity Date is subject to extension upon certain conditions
being satisfied in the event offeree majeure as provided in Section 5.5.3
of the Loan Agreement."
3. This First Amendment may be executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument. A facsimile copy of
this First Amendment and any signatures hereon shall be considered for all
purposes as originals. Except as expressly modified by this First
Amendment, the terms and provisions of the Note remain unmodified and are
in full force and effect.
[TEXT AND SIGNATURES FOLLOW]
2
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by the duly authorized representatives the day and
year first above written.
BANK
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
BORROWER
WESTON TOWN CENTER, LLC, a Delaware
limited liability company
By: Arvida/JMB Partners, a Florida
general partnership,
its sole member
By: Arvida/JMB Managers, Inc.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
SECOND AMENDMENT TO PROMISSORY NOTE
-----------------------------------
THIS SECOND AMENDMENT TO PROMISSORY NOTE (this "Second Amendment") is
made and entered into as of this 31st day of December, 2001, by and between
FIRST UNION NATIONAL BANK ("Bank"), and WESTON TOWN CENTER, LLC, a Delaware
limited liability company ("Borrower").
RECITALS:
---------
WHEREAS, on May 19, 2000, Xxxxxxxx executed that certain Promissory
Note in favor of Bank, as amended by that certain First Amendment to
Promissory Note dated May 31, 2001 (collectively, the "Note") (unless
otherwise defined herein, all capitalized terms used herein shall have the
same meanings assigned to the same in the Note), pursuant to which Xxxxxxxx
has agreed to pay to Bank the principal sum of Twenty Million Dollars
($20,000,000.00); and
WHEREAS, Xxxx and Xxxxxxxx have agreed to enter into this Second
Amendment to modify certain terms and conditions of the Note.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Bank and Borrower agree as follows:
1. In the event of any conflict between the terms of the Note and
the terms of this Second Amendment, the terms of this Second Amendment
shall control.
2. Section 2 of the Note is hereby deleted in its entirety and
replaced with the following:
A2. PAYMENT OF PRINCIPAL AND INTEREST.
2.1. Construction Period Interest only on the outstanding
principal balance shall be due and payable monthly in arrears commencing on
the 1st day of June, 2000 and continuing on the 1st day of each month
thereafter (each, a "Payment Date") for a period of twenty-five (25)
Payment Dates ("Construction Period"). The Construction Period shall expire
on the day before the "Scheduled Conversion Date" (as hereinafter defined),
subject to extension upon certain conditions being satisfied in the event
offeree majeure as provided in Section 5.5.3 of the Loan Agreement.
2.2. Mini-Perm Period. Commencing on the 1st day of July, 2002
and continuing on the 1st day of each month thereafter until the Maturity
Date ("Mini-Perm Period"), monthly principal and interest payments shall be
due and payable on the 1st day of each month (each, a "Payment Date") in
consecutive monthly installments in an amount based on the then outstanding
principal
balance of this Note, plus any unfunded commitment of this Note, a 25 year
amortization and an assumed interest rate based on the 10-year Treasury
plus two hundred fifty (250) basis points. The commencement of the
Mini-Perm Period is subject to extension upon certain conditions being
satisfied in the event offeree majeure as provided in Section 5.5.3 of the
Loan Agreement.
2.3 Maturity Date. The entire unpaid principal amount hereof,
together with accrued and unpaid interest thereon and all other amounts
payable hereunder shall be due and payable on May 31,2003 (the "Maturity
Date"). Notwithstanding the foregoing, if the conditions to conversion set
forth in the Loan Agreement are not satisfied prior to the 1st day of July,
2002 (the "Scheduled Conversion Date"), the Construction Period shall not
convert to the Mini-Perm Period and the outstanding principal balance of
this Note, together with all accrued and unpaid interest thereon and all
other amounts payable under the Loan Documents, shall immediately be due
and payable by Borrower to Bank upon expiration of the Construction Period.
The Maturity Date is subject to extension upon certain conditions being
satisfied in the event offeree majeure as provided in Section 5.5.3 of the
Loan Agreement."
3. This Second Amendment may be executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument. A facsimile copy of
this Second Amendment and any signatures hereon shall be considered for all
purposes as originals. Except as expressly modified by this Second
Amendment, the terms and provisions of the Note remain unmodified and are
in full force and effect.
[TEXT AND SIGNATURES FOLLOW]
2
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by the duly authorized representatives the day and
year first above written.
BANK
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
BORROWER
WESTON TOWN CENTER, LLC, a Delaware
limited liability company
By: Arvida/JMB Partners, a Florida
general partnership,
its sole member
By: Arvida/JMB Managers, Inc.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
3
This Instrument Prepared by: INSTR #100285621
Xxxxx X. Xxxxxx, Esq. OR BK 30519 PG 0369
Xxxxx, XxXxxxxx, Xxxxx Recorded 05/22/2000 01:24 PM
Xxxxxxxx & Xxxxxxx, P.A. Commission
000 Xxxx Xxxxxxx Xxxxxxxxx Broward County
15th Floor Doc Stmp-M 70,000.00
Fort Lauderdale, Florida 33301 INT TAX 40,000.00
Deputy Clerk 1033
-------------------------------------------------------------------------
SPACE ABOVE THIS LINE SPACE ABOVE THIS LINE
FOR PROCESSING DATA FOR PROCESSING DATA
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
MORTGAGE AND SECURITY AGREEMENT dated May 19, 2000 (together with any
amendments or modifications hereto in effect from time to time, the
"Mortgage"), between WESTON TOWN CENTER, LLC, a Delaware limited liability
company qualified to do business in Florida, having an office at 0000
Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Mortgagor") and FIRST UNION
NATIONAL MORTGAGEE, a national Mortgageeing association, having an office
at 000 Xxxx Xxxxxxx Xxxx., 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Mortgagee").
WITNESSETH:
WHEREAS, Xxxxxxxxx is indebted to Mortgagee in the principal sum of
Twenty Million Dollars ($20,000,000), or such lesser amount as may be
advanced pursuant to the "Loan Agreement" [as defined in the "Note" (as
hereinafter defined)] (the "Loan"), together with interest thereon, as
evidenced by a certain Promissory Note of even date herewith (the "Note");
and
WHEREAS, Xxxxxxxxx is the owner of fee simple title to that certain
tract of land located in the City of Weston, County of Broward, State of
Florida, as more particularly described in Exhibit A attached hereto and
made a part hereof (the "Real Estate"), and
WHEREAS, to induce Mortgagee to make the Loan and to secure payment
of the Note and the other obligations described below, Xxxxxxxxx has agreed
to execute and deliver this Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all sums
due under this Mortgage, the Note (and all extensions, renewals,
replacements and amendments thereof) and the other Loan Documents (as such
term is defined in the Note, the "Loan Documents"); (ii) the performance of
all terms, conditions and covenants set forth in the Loan Documents; (iii)
the repayment of all sums due or that may become due under or in connection
with any present or future swap agreements (as defined in 11 U.S.C.
Subsection 101) between Mortgagor and Mortgagee; (iv) the repayment of all
reimbursement obligations
1
OR BK 30519 PG 0370
due or that may become due under or In connection with any present or
future letters of credit issued by Mortgagee for the account of Mortgagor;
and (v) all other obligations or indebtedness of Mortgagor to Mortgagee of
whatever kind or character and whenever borrowed or incurred, including
without limitation, principal, interest, fees, late charges and expenses,
Including attorneys' fees (subsections (i), (ii), (iii), (iv) and (v)
collectively, the "Liabilities"), Xxxxxxxxx has mortgaged, granted and
conveyed and by these presents DOES HEREBY MORTGAGE, XXXXX AND CONVEY TO
MORTGAGEE, ITS SUCCESSORS AND ASSIGNS, all of Xxxxxxxxx's right, title and
interest now owned or hereafter acquired in and to each of the following
(collectively, the "Property"):
(A) The Real Estate;
(B) Any and all buildings and improvements now or hereafter erected
on, under or over the Real Estate (the "Improvements");
(C) Any and all fixtures, machinery, equipment, inventory
(including but not limited to, raw material and work in process) and other
articles of real, personal or mixed property, belonging to Mortgagor, at
any time now or hereafter installed in, attached to or situated in or upon
the Real Estate, or the buildings and improvements now or hereafter erected
thereon, or used or intended to be solely used in connection with the Real
Estate, or in the operation of the buildings and improvements, plant,
business or dwelling situate thereon, whether or not such real, personal or
mixed property is or shall be affixed thereto, and all replacements,
substitutions and proceeds of the foregoing (all of the foregoing herein
called the "Service Equipment"), including without limitation: (i) all
appliances, furniture and furnishings; all articles of interior decoration,
floor, wall and window coverings; all office, restaurant, bar, kitchen and
laundry, fixtures, utensils, appliances and equipment; all supplies, tools
and accessories; all storm and screen windows, shutters, doors,
decorations, awnings, shades, blinds, signs, trees, shrubbery and other
plantings; (ii) all building service fixtures, machinery and equipment of
any kind whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling, plumbing, security, irrigating, cleaning,
incinerating, waste disposal, communications, alarm, fire prevention and
extinguishing systems, fixtures, apparatus, machinery and equipment; all
elevators, escalators, lifts, cranes, hoists and platforms; all pipes,
conduits, pumps, boilers, tanks, motors, engines, furnaces and compressors;
all dynamos, transformers and generators; (iii) all building materials,
building machinery and building equipment delivered on site to the Real
Estate during the course of, or in connection with any construction or
repair or renovation of the buildings and improvements; (iv) all parts,
fittings, accessories, accessions, substitutions and replacements therefor
and thereof; and (v) all files, books, ledgers, reports and records
relating to any of the foregoing;
(D) Any and all leases, subleases, tenancies, licenses, occupancy
agreements or agreements to lease all or any portion of the Real Estate,
Improvements, Service Equipment or all or any other portion of the Property
and all extensions, renewals, amendments, modifications and replacements
thereof, and any options, rights of first refusal or guarantees relating
thereto (collectively, the "Leases"); all rents, income, receipts,
revenues, security deposits, escrow accounts, reserves, issues, profits,
awards and payments of any kind payable under the Leases or otherwise
arising from the Real Estate, Improvements, Service Equipment or all or any
other portion of the Property including, without limitation, minimum rents,
additional rents, percentage rents, parking, maintenance and deficiency
rents (collectively, the "Rents"); all of the following personal property
(collectively referred to as the "Contracts"): all accounts, general
intangibles and contract rights (including any right to payment thereunder,
whether or not earned by performance) of any nature relating to the Real
Estate, Improvements, Service Equipment or all or any other portion of the
Property or the use, occupancy, maintenance, construction, repair or
operation thereof; all management agreements, franchise agreements, utility
agreements and deposits, building service contracts, maintenance contracts,
construction contracts and architect's agreements; all maps, plans, surveys
and specifications; all warranties and guaranties; all permits, licenses
and approvals; and all insurance policies, books of account and other
documents, of whatever kind or character, relating solely to the use,
construction upon, occupancy, leasing, sale or operation of the Real
Estate, Improvements, Service Equipment or all or any other portion of the
Property, together with all items owned by Mortgagor and utilized solely in
connection with the Property, as more particularly described on Exhibit B
hereto;
2
OR BK 30519 PG 0371
(E) Any and all estates, rights, tenements, hereditaments,
privileges, easements, reversions, remainders and appurtenances of any kind
benefiting or appurtenant to the Real Estate, Improvements or all or any
other portion of the Property; all means of access to and from the Real
Estate, Improvements or all or any other portion of the Property, whether
public or private; all streets, alleys, passages, ways, water courses,
water and mineral rights relating to the Real Estate, Improvements or all
or any other portion of the Property; all rights of Mortgagor as declarant
or unit owner under any declaration of condominium or association
applicable to the Real Estate, Improvements or all or any other portion of
the Property including, without limitation, all development rights and
special declarant rights; and all other claims or demands of Mortgagor,
either at law or in equity, in possession or expectancy of, in, or to the
Real Estate, Improvements or all or any other portion of the Property (all
of the foregoing described in this subsection E herein called the
"Appurtenances"); and
(F) Any and all "proceeds" of any of the above-described Real
Estate, Improvements, Service Equipment, Leases, Rents, Contracts and
Appurtenances, which term "proceeds" shall have the meaning given to it in
the Uniform Commercial Code, as amended, (the "Code") of the State in which
the Property is located (collectively, the "Proceeds") and shall
additionally include whatever is received upon the use, lease, sale,
exchange, transfer, collection or other utilization or any disposition or
conversion of any of the Real Estate, Improvements, Service Equipment,
Leases, Rents, Contracts and Appurtenances, voluntary or involuntary,
whether cash or non-cash, including proceeds of insurance and condemnation
awards, rental or lease payments, accounts, chattel paper, instruments,
documents, contract rights, general intangibles, equipment and inventory.
TO HAVE AND TO HOLD the above granted and conveyed Property unto and
to the proper use and benefit of Mortgagee, its successors and assigns,
forever.
PROVIDED ALWAYS, and these presents are upon the express condition,
that if (i) all the Liabilities, including without limitation, all
termination payments and any other amounts due under or in connection with
any swap agreements secured hereunder, are paid in full, (ii) each and
every representation, warranty, agreement and covenant of this Mortgage and
the other Loan Documents are complied with and abided by, and (iii) any
swap agreements secured hereunder have matured or been terminated, then
this Mortgage and the estate hereby created shall cease and be null and
void and canceled of record.
The terms of the Loan Documents are hereby made a part of this
Mortgage to the same extent and with the same effect as if fully set forth
herein. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Loan Documents.
AND Mortgagor covenants and agrees with and represents to Mortgagee
as follows:
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall secure
any additional loans as well as any and all present or future advances and
readvances under the Liabilities made by Mortgagee to or for the benefit of
Mortgagor or the Property within twenty (20) years from the date hereof
(whether such advances are obligatory or are made at the option of
Mortgagee or otherwise) including, without limitation: (a) principal,
interest, late charges, fees and other amounts due under the Liabilities or
this Mortgage; (b) all advances by Mortgagee to Mortgagor or any other
person to pay costs of erection, construction, alteration, repair,
restoration, maintenance and completion of any improvements on the
Property; (c) all advances made or costs incurred by Mortgagee for the
payment of real estate taxes, assessments or other governmental charges,
maintenance charges, insurance premiums, appraisal charges, environmental
inspection, audit, testing or compliance costs, and costs incurred by
Mortgagee for the enforcement and protection of the Property or the lien of
this Mortgage; and (d) all legal fees, costs and other expenses reasonably
incurred by Mortgagee by reason of any default or otherwise in connection
with the Liabilities. The total number of the Liabilities that may be so
secured may decrease to a zero amount from time to time, or may increase
from time to time, but the total unpaid balance secured at any one time
shall not exceed twice the original principal balance of the Note.
Xxxxxxxxx agrees that if, at any time during the term of this Mortgage or
following a foreclosure hereof (whether before or after the entry of a
judgment of foreclosure), Xxxxxxxxx fails to perform or observe any
covenant or obligation
3
OR BK 30519 PG 0372
under this Mortgage including, without limitation, payment of any of the
foregoing, Mortgagee may (but shall not be obligated to) take such steps as
are reasonably necessary to remedy any such nonperformance or nonobservance
and provide payment thereof. All amounts advanced by Mortgagee shall be
added to the amount secured by this Mortgage and the other Loan Documents
(and, if advanced after the entry of a judgment of foreclosure, by such
judgment of foreclosure), and shall be due and payable on demand, together
with interest at the Default Rate set forth in the Note, such interest to
be calculated from the date of such advance to the date of repayment
thereof.
2. REPRESENTATIONS. WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee
all sums required to be paid by Xxxxxxxxx under the Loan Documents, in
accordance with their stated terms and conditions: (b) perform and comply
in all material respects with all terms, conditions and covenants set forth
in each of the Loan Documents by which Xxxxxxxxx is bound; and (c) perform
and comply in all material respects with all of Mortgagor's obligations and
duties as landlord under any Leases.
2.2. Seisin and Warranty. Mortgagor hereby warrants that (a)
Xxxxxxxxx is seized of an indefeasible estate in fee simple in, and
warrants the title to, the Property; (b) Mortgagor has the right, full
power and lawful authority to mortgage, grant, convey and assign the same
to Mortgagee in the manner and form set forth herein; and (c) this Mortgage
is a valid and enforceable first lien on the Property. Mortgagor hereby
covenants that Mortgagor shall (a) preserve such title and the validity and
priority of the lien of this Mortgage and shall forever warrant and defend
the same to Mortgagee against all lawful claims whatsoever; and (b)
execute, acknowledge and deliver all such further documents or assurances
as may at any time hereafter be required by Mortgagee to protect fully the
lien of this Mortgage.
2.3. Insurance. (a) Mortgagor shall obtain and maintain at all
times throughout the term of this Mortgage the following insurance: (i)
comprehensive general public liability insurance covering all operations of
Mortgagor in an amount of at least Five Million Dollars ($5,000,000); (ii)
"All-Risk" fire and extended coverage hazard insurance (non-reporting
Commercial Property Policy with Special Cause of Loss form) covering the
Property in an aggregate amount not less than 100% of the agreed upon full
insurable replacement value of the Property, including coverage for loss of
rents or business interruption; (iii) during the course of any
construction, reconstruction, remodeling or repair of any Improvements,
builders' all-risk extended coverage insurance (non-reporting Completed
Value with Special Cause of Loss form) in amounts based upon the completed
replacement value of the Improvements (excluding roads, foundations,
parking areas, paths, walkways and like improvements) and endorsed to
provide that occupancy by any person shall not void such coverage; (iv) if
the Property is required to be insured pursuant to the National Flood
Insurance Reform Act of 1994, and the regulations promulgated thereunder,
flood insurance in an amount at least equal to the lesser of the agreed
upon full insurable replacement value of the Property (less any value
attributable to the Real Estate) or the maximum limit of coverage
available; (v) insurance which complies with the workers' compensation and
employers' liability laws of all states in which Mortgagor shall be
required to maintain such insurance; (vi) loss of rents insurance covering
twelve (12) months; and (vii) such other insurance as Mortgagee may
reasonably require.
(b) Each insurance policy required under this Section shall:
(i) be written by an insurance company authorized or licensed to do
business in the state within which the Property is located having an Xxxxxx
X. Best Company, Inc. rating of "A-" or higher and a financial size
category of not less than IX; (ii) be for terms of a least one year, with
premium prepaid; (iii) be subject to the reasonable approval of Mortgagee
as to insurance companies, amounts, content, forms of policies and
expiration dates; and (iv) name Mortgagee, its successors and assigns: (1)
as an additional insured under all liability insurance policies, and (2) as
the first mortgagee, under a standard non-contributory mortgagee clause, on
all property insurance policies and all loss of rents or loss of business
income insurance policies.
(c) Xxxxxxxxx further agrees that each insurance policy: (i)
shall provide at least thirty (30) days' prior written notice to Mortgagee
prior to any policy reduction or cancellation for any reason; (ii) shall
contain an endorsement or agreement by the insurer that any loss shall be
payable to Mortgagee in
4
OR BK 30519 PG 0373
accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor which might otherwise result in forfeiture of such
insurance; (iii) shall waive all rights of setoff, counterclaim, deduction
or subrogation against Mortgagor; and (iv) shall exclude Mortgagee from the
operation of any coinsurance clause.
(d) At least thirty (30) days prior to the expiration of any
insurance policy, Mortgagor shall furnish evidence satisfactory to
Mortgagee that such policy has been renewed or replaced or is no longer
required.
(e) Notwithstanding the foregoing, in the event that
Xxxxxxxxx fails to maintain insurance in accordance with this Section 2.3.,
and Mortgagee elects to obtain insurance to protect its interests
hereunder, Mortgagee may obtain insurance in any amount and of any type
Mortgagee reasonably deems appropriate to protect Mortgagee's interest only
and Mortgagee shall have no duty or obligation to Mortgagor to maintain
insurance in any greater amount or of any other type for the benefit of
Mortgagor. All insurance premiums incurred or paid by Mortgagee shall be at
Mortgagor's sole cost and expense in accordance with Section 1 hereof.
Mortgagee's election to obtain insurance shall not be deemed to waive any
Event of Default (as hereinafter defined) hereunder.
2.4. Taxes and Other Charges. Mortgagor shall promptly pay and
discharge all taxes, assessments, water and sewer rents, and other
governmental charges imposed upon the Property when due, but in no event
after interest or penalties commence to accrue thereon or become a lien
upon the Property. Notwithstanding the foregoing, Mortgagor shall have the
right to contest, at its own expense, by appropriate legal proceedings
conducted in good faith and with due diligence, the amount or validity of"
such taxes, assessments, water and sewer rents, or other governmental
charges, provided that: (a) Mortgagor has established on its books or by
deposit of cash with Mortgagee, at the option of Mortgagee, a reserve for
the payment thereof in such amount as Mortgagee may require; and (b) such
contest operates to prevent collection, stay any proceedings which may be
instituted to enforce payment of such item, and prevent a sale of the
Property to pay such item. Mortgagor shall promptly provide to Mortgagee,
upon request, copies of receipted tax bills, canceled checks or other
evidence satisfactory to Mortgagee evidencing that such taxes, assessments,
water and sewer rents, and other governmental charges have been timely
paid. Mortgagor shall not claim or demand or be entitled to any credit on
account of the Liabilities for any part of the taxes paid with respect to
the Property or any part thereof and no deduction shall otherwise be made
or claimed from the taxable value of the Property, or any part thereof, by
reason of this Mortgage.
2.5. Escrows. If required by Mortgagee after the occurrence of an
Event of Default, Mortgagor shall pay to Mortgagee at the time of each
installment of principal and interest due under the Note, and commencing
with the first payment due after the date of such request, a sum equal to
(a) the amount of the next installment of taxes and assessments levied or
assessed against the Property, and/or (b) the premiums which will next
become due on the insurance policies required by this Mortgage, all in
amounts as estimated by Mortgagee, less all sums already paid therefor or
deposited with Mortgagee for the payment thereof, divided by the number of
payments to become due before one (1) month prior to the date when such
taxes and assessments and/or premiums, as applicable, will become due, such
sums to be held by Mortgagee to pay the same when due. If such escrow funds
are not sufficient to pay such taxes and assessments and/or insurance
premiums, as applicable, as the same become due, Mortgagor shall pay to
Mortgagee, upon request, such additional amounts as Mortgagee shall
estimate to be sufficient to make up any deficiency. No amount paid to
Mortgagee hereunder shall be deemed to be trust funds but may be commingled
with general funds of Mortgagee and no interest shall be payable thereon.
Upon the occurrence of an Event of Default, Mortgagee shall have the right,
at its sole discretion, to apply any amounts so held against the
Liabilities.
2.6. Transfer of Title. Without the prior written consent of
Mortgagee in each instance, Mortgagor shall not cause or permit any
transfer of the Property or any part thereof, whether voluntarily,
involuntarily or by operation of law, nor shall Mortgagor enter into any
agreement or transaction to transfer, or accomplish in form or substance a
transfer, of the Property. A "transfer" of the Property includes: (a) the
direct or indirect sale, transfer or conveyance of the Property or any
portion thereof or interest therein;
5
OR BK 30519 PG 0374
(b) the execution of an installment sale contract or similar instrument
affecting all or any portion of the Property; (c) if Mortgagor is a
corporation, partnership, limited liability company or other business
entity, the transfer (whether in one transaction or a series of
transactions) of any stock, partnership, limited liability company or other
ownership interests in such corporation, partnership, limited liability
company or entity; (d) if Mortgagor is a corporation, the creation or
issuance of new stock by which an aggregate of more than 10% of such
corporation's stock shall be vested in a party or parties who are not now
stockholders; and (e) an agreement by Mortgagor leasing all or a
substantial part of the Property for other than actual occupancy by a space
tenant thereunder or a sale, assignment or other transfer of or the grant
of a security interest in and to any Leases. Notwithstanding anything to
the contrary, Mortgagor may convey its ownership interest in the Property,
in whole or in part, and/or may assign and transfer its rights and
obligations under the Loan, and/or the general partner in Mortgagor (if
any) may transfer its general partnership interest in Mortgagor or any
ownership interest in Mortgagor may be transferred, in whole or in part, to
(i) Arvida/JMB Partners, L.P., a Delaware limited partnership
("Guarantor"); (ii) any partnership, corporation or other entity that is,
directly or indirectly, controlling, controlled by or under common control
with Guarantor, JMB Realty Corporation, a Delaware corporation ("JMB"), or
Northbrook Corporation, a Delaware corporation ("Northbrook") (each such
entity an "Arvida Affiliate"); or (iii) any partnership, corporation or
other entity to which Guarantor, JMB, Northbrook or an Arvida Affiliate has
contributed or will contribute assets and which will either be sponsored by
Guarantor, JMB, Northbrook or an Arvida Affiliate or in which Guarantor,
JMB, Northbrook or an Arvida Affiliate has retained or will retain not less
than a 10% ownership interest. In the event of a transfer by Mortgagor of
its ownership interest in the Property, Mortgagor shall be relieved of its
obligations under Note, this Mortgage and the other Loan Documents. For
purposes of this paragraph, control of a specified person or entity
(including the correlative terms "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the person or
entity, whether through ownership of voting securities, by contract or
otherwise. For purposes of applying this definition, (a) the managing
partner of a general or limited partnership will be deemed to be in control
thereof, provided such managing partner possesses the power to direct or
cause the direction of the management and policies of the partnership, and
(b) an entity will be deemed controlled by Guarantor, JMB, Northbrook or an
Arvida Affiliate if a majority of the trustees, directors or persons in
similar capacities which direct or cause the direction of the management
and policies of such entity are at all times officers, directors, members,
shareholders, employees or individuals acting in similar capacities of
Guarantor, JMB, Northbrook or an Arvida Affiliate or an entity controlled
by or under the common control with Guarantor, JMB, Northbrook or an Arvida
Affiliate.
2.7. No Encumbrances. Mortgagor shall not create or permit to exist
any mortgage, pledge, lien, security interest (including, without
limitation, a purchase money security interest), encumbrance, attachment,
levy, distraint or other judicial process on or against the Property or any
part thereof (including, without limitation, fixtures and other
personalty), whether superior or inferior to the lien of this Mortgage,
without the prior written consent of Mortgagee. If any lien or encumbrance
is filed or entered without Mortgagor's consent, Mortgagor shall have it
removed of record within fifteen (15) days after Xxxxxxxxx receives notice
thereof.
2.8. Removal of Fixtures. Mortgagor shall not remove or permit to
be removed from the Property any fixtures presently or in the future owned
by Xxxxxxxxx as the term "fixtures" is defined by the law of the state
where the Property is located (unless such fixtures have been replaced with
similar fixtures of equal or greater utility and value).
2.9. Maintenance and Repair; Alterations. (a) Mortgagor shall (i)
abstain from and not permit the commission of waste in or about the
Property; (ii) keep the Property, at Mortgagor's own cost and expense, in
good and substantial repair, working order and condition; (iii) make or
cause to be made, as and when necessary, all repairs and replacements,
whether or not insurance proceeds are available therefor; and (iv) not
remove, demolish, materially alter, discontinue the use of, permit to
become vacant or deserted, or otherwise dispose of all or any part of the
Property. All alterations, replacements, renewals or additions made
pursuant hereto shall automatically become a part of the Property and shall
be covered by the lien of this Mortgage.
6
OR BK 30519 PG 0375
(b) Mortgagee, and any persons authorized by Mortgagee, shall
have the right, but not the obligation, to enter upon the Property at any
reasonable time and with reasonable prior notice to inspect and photograph
its condition and state of repair. In the event any such inspection
reveals, in the sole discretion of Mortgagee, the necessity for any repair,
alteration, replacement, clean-up or maintenance, Mortgagor shall, at the
discretion of Mortgagee, either: (i) cause such work to be effected
immediately; or (ii) promptly establish an interest bearing reserve fund
with Mortgagee in an amount determined by Mortgagee for the purpose of
effecting such work.
2.10. Compliance with Applicable Laws. Xxxxxxxxx agrees to observe,
conform and comply, and to cause its tenants to observe, conform and comply
in all material respects with all federal, state, county, municipal and
other governmental or quasi-governmental laws, rules, regulations,
ordinances, codes, requirements, covenants, conditions, orders, licenses,
permits, approvals and restrictions, including without limitation,
Environmental Laws (as defined below) and the Americans with Disabilities
Act of 1990 (collectively, the "Legal Requirements"), now or hereafter
affecting all or any part of the Property, its occupancy or the business or
operations now or hereafter conducted thereon and the personalty contained
therein, within such time as required by such Legal Requirements. Mortgagor
represents and warrants that it has caused the Property to be designed, and
the Property currently is, in compliance in all material respects with all
Legal Requirements applicable to the Property.
2.11. Damage, Destruction and Condemnation. (a) If all or any part
of the Property shall be damaged or destroyed, or if title to or the
temporary use of the whole or any part of the Property shall be taken or
condemned by a competent authority for any public or quasi-public use or
purpose, there shall be no abatement or reduction in the amounts payable by
Mortgagor under the Loan Documents and Mortgagor shall continue to be
obligated to make such payments.
(b) If all or any part of the Property is partially or totally
damaged or destroyed, Mortgagor shall give prompt notice thereof to
Mortgagee, and Mortgagee may make proof of loss if not made promptly by
Xxxxxxxxx. Mortgagor hereby authorizes and directs any affected insurance
company to make payment under such insurance, including return of unearned
premiums, to Mortgagee instead of to Mortgagor and Mortgagee jointly, and
Xxxxxxxxx appoints Mortgagee as Xxxxxxxxx's attorney-in-fact to endorse any
draft thereof, which appointment, being for security, is coupled with an
interest and irrevocable. Mortgagee is hereby authorized and empowered by
Xxxxxxxxx to settle, adjust or compromise, in consultation with Xxxxxxxxx,
any claims for loss, damage or destruction to the Property. Mortgagor shall
pay all costs of collection of insurance proceeds payable on account of
such damage or destruction. Xxxxxxxxx shall have no claim against the
insurance proceeds, or be entitled to any portion thereof, and all rights
to the insurance proceeds are hereby assigned to Mortgagee as security for
payment of the Liabilities. Mortgagee shall have the option, in its sole
discretion, of paying or applying all or any part of the insurance proceeds
to: (i) reduction of the Liabilities; (ii) restoration, replacement or
repair of the Property in accordance with Mortgagee's standard construction
loan disbursement conditions and requirements; or (iii) Mortgagor.
(c) Immediately upon obtaining knowledge of the institution
of any proceeding for the condemnation of all or any part of the Property,
Mortgagor shall give notice to Mortgagee. Mortgagor shall, at its sole
cost and expense, diligently prosecute any such proceeding and shall
consult with Mortgagee, its attorneys and experts, and shall cooperate with
it in the defense of any such proceeding. Mortgagee may participate in any
such proceeding and Mortgagor shall from time to time deliver to Mortgagee
all instruments requested by it to permit such participation. Mortgagor
shall not, without Mortgagee's prior written consent, enter into any
agreement (i) for the taking or conveyance in lieu thereof of all or any
part of the Property, or (ii) to compromise, settle or adjust any such
proceeding. All awards and proceeds of condemnation are hereby assigned to
Mortgagee, and Xxxxxxxxx, upon request by Xxxxxxxxx, agrees to make,
execute and deliver any additional assignments or documents necessary from
time to time to enable Mortgagee to collect the same. Such awards and
proceeds shall be paid or applied by Mortgagee, in its sole discretion, to:
(i) reduction of the Liabilities; (ii) restoration, replacement or repair
of the Property in accordance with Mortgagee's standard construction loan
disbursement conditions and requirements; or (iii) Mortgagor.
7
OR BK 30519 PG 0376
(d) Nothing herein shall relieve Mortgagor of its duty to
repair, restore, rebuild or replace the Property following damage or
destruction or partial condemnation if no or inadequate insurance proceeds
or condemnation awards are available to defray the cost of repair,
restoration, rebuilding or replacement.
(e) Notwithstanding the provisions of subparagraphs (b) and
(c) above, in the event that all or any part of the Property is damaged by
fire or other casualty or is subject to a partial condemnation, and
Xxxxxxxxx promptly notifies Mortgagee of its desire to repair and restore
the same, then provided that the following terms and conditions are and
remain fully satisfied by Mortgagor, Mortgagee shall disburse insurance or
condemnation proceeds for repair and restoration of the Property against
completed work in accordance with Mortgagee's standard construction loan
disbursement conditions and requirements (which may be contained in an
agreement which Mortgagee may require Mortgagor to sign); otherwise, and to
the extent of any excess proceeds, Mortgagee shall have the right to apply
the proceeds toward reduction of the Liabilities:
(i) no Event of Default or event which, with the giving
of notice or the passage of time, or both, would constitute an Event of
Default under any of the Loan Documents shall have occurred and be
continuing;
(ii) Mortgagor shall have delivered evidence
satisfactory to Mortgagee that the Property can be fully repaired and
restored at least six (6) months prior to the maturity of the Note;
(iii)no Lease is cancelable or terminable by the tenant
or Mortgagor on account of the casualty or, if it is, the tenant or
Mortgagor, as applicable, has waived in writing its right to cancel;
(iv) the work is performed under a stipulated sum or
guaranteed maximum price contract satisfactory to Mortgagee substantially
in accordance with plans and specifications and a budget satisfactory to
Mortgagee and in compliance with all Legal Requirements;
(v) Mortgagor shall have deposited with Mortgagee for
disbursement in connection with the restoration the greater of: (1) the
applicable deductible under the insurance policies covering the loss; or
(2) the amount by which the cost of restoration of the Property to
substantially the same value, condition and character as existed prior to
such damage is estimated by Mortgagee to exceed the net insurance or
condemnation proceeds available for restoration; and
(vi) Xxxxxxxxx has paid as and when due all of
Mortgagee's costs and expenses incurred in connection with the collection
and disbursement of insurance proceeds, including without limitation,
inspection, monitoring, engineering and legal fees. If not paid on demand,
and at Mortgagee's option, such costs may be deducted from the
disbursements made by Mortgagee or added to the sums secured by this
Mortgage in accordance with the provisions of Section 1 hereof.
2.12. Required Notices. Mortgagor shall notify Mortgagee within ten
(10) days of: (a) receipt of any notice of defect from any governmental or
quasi-governmental authority relating to the structure, use or occupancy of
the Property or alleging a violation of any Legal Requirement; (b) a
substantial change in the occupancy or use of all or any part of the
Property; (c) receipt of any notice from the holder of any lien or security
interest in all or any part of the Property; (d) commencement of any
litigation affecting or potentially affecting in a material respect the
financial ability of Mortgagor or the value of the Property; (e) a pending
or threatened condemnation of all or any part of the Property; (f) a fire
or other casualty causing damage to all or any part of the Property; (g)
receipt of any notice with regard to any Release of Hazardous Substances
(as such terms are defined below) or any other environmental matter
affecting the Property or Mortgagor's interest therein; (h) receipt of any
request for information, demand letter or notification of potential
liability from any entity relating to potential responsibility for
investigation or clean-up of Hazardous Substances on the Property or at any
other site owned or operated by Mortgagor; (i) receipt of any notice from
any tenant of all or any part of the Property alleging a default, failure
to
8
OR BK 30519 PG 0377
perform or any right to terminate its lease or to set-off rents; or (j)
receipt of any notice of the imposition of, or of threatened or actual
execution on, any lien on or security interest in all or any part of the
Property.
2.13. Books and Records: Inspection. Mortgagor shall keep and
maintain (a) complete and accurate books and records, in accordance with
generally accepted accounting principles consistently applied, reflecting
all items of income and expense in connection with the operation of the
Property, and (b) copies of all written contracts, leases and other
agreements affecting the Property. Mortgagee or its designated
representatives shall, upon reasonable prior notice to Xxxxxxxxx, have (a)
the right of entry and free access to the Property during business hours
(which may be without notice in any case of emergency) to inspect the
Property, and (b) the right to examine and audit all books, contracts and
records of Mortgagor relating to the Property.
2.14. Right to Reappraise. Mortgagee shall have the right to conduct
or have conducted by an independent appraiser acceptable to Mortgagee
appraisals of the Property in form and substance satisfactory to Mortgagee
at the sole cost and expense of Mortgagor; PROVIDED, HOWEVER, that
Mortgagor shall not be obligated to bear the expense of such appraisals so
long as (a) no Event of Default exists, and (b) such appraisals are not
required by applicable law, rule or regulation of any governmental
authority having jurisdiction over Mortgagee. The cost of such appraisals,
if chargeable to Mortgagor as aforesaid, shall be added to the Liabilities
and shall be secured by this Mortgage in accordance with the provisions of
Section 1 hereof.
3. SECURITY AGREEMENT. This Mortgage constitutes a security agreement
under the Code and shall be deemed to constitute a fixture financing
statement. Mortgagor hereby grants to Mortgagee a security interest in the
personal and other property (other than real property) included in the
Property, and all replacements of, substitutions for, and additions to,
such property, and the proceeds thereof. Mortgagor shall, at Xxxxxxxxx's
own expense, execute, deliver, file and refile any financing or
continuation statements or other security agreements Mortgagee may require
from time to time to perfect, confirm or maintain the lien of this Mortgage
with respect to such property. A photocopy of an executed financing
statement shall be effective as an original. Without limiting the
foregoing, Xxxxxxxxx hereby irrevocably appoints Mortgagee attorney-in-fact
for Xxxxxxxxx to execute, deliver and file such instruments for or on
behalf of Mortgagor at Xxxxxxxxx's expense, which appointment, being for
security, is coupled with an interest and shall be irrevocable. With
respect to goods that become fixtures after the recording of this Mortgage
and before the completion of construction of the Improvements, this
Mortgage is, and shall be construed to be, a "Construction Mortgage" under
the Code.
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely, presently and unconditionally
conveys, transfers and assigns to Mortgagee all of Mortgagor's right, title
and interest, now existing or hereafter arising, in and to the Leases and
Rents. Notwithstanding that this assignment is effective immediately, so
long as no Event of Default exists, Mortgagor shall have the privilege
under a revocable license granted hereby to operate and manage the Property
and to collect, as they become due, but not prior to accrual, the Rents.
Mortgagor shall receive and hold such Rents in trust as a fund to be
applied, and Xxxxxxxxx hereby covenants and agrees that such Rents shall be
so applied, first to the operation, maintenance and repair of the Property
and the payment of interest, principal and other sums becoming due under
the Liabilities, before retaining and/or disbursing any part of the Rents
for any other purpose. The license herein granted to Mortgagor shall
automatically, without notice or any other action by Mortgagee, terminate
upon the occurrence of an Event of Default, and all Rents subsequently
collected or received by Mortgagor shall be held in trust by Xxxxxxxxx for
the sole and exclusive benefit of Mortgagee. Nothing contained in this
Section 4.1, and no collection by Mortgagee of Rents, shall be construed as
imposing on Mortgagee any of the obligations of the lessor under the
Leases.
4.2. Mortgagor shall timely perform all of its obligations under the
Leases. Xxxxxxxxx represents and warrants that: (a) Mortgagor has title to
and full right to assign presently, absolutely and unconditionally the
Leases and Rents; (b) no other assignment of any interest in any of the
Leases or Rents has been made; (c) there are no leases or agreements to
lease all or any portion of the Property
9
OR BK 30519 PG 0378
now in effect except the Leases, true and complete copies of which have
been furnished to Mortgagee, and no written or oral modifications have been
made thereto; (d) there is no existing default by Mortgagor nor, to the
best of Mortgagor's knowledge, by any tenant under any of the Leases, nor,
to the best of Mortgagor's knowledge, has any event occurred which due to
the passage of time, the giving or failure to give notice, or both, would
constitute a default under any of the Leases and, to the best of
Xxxxxxxxx's knowledge, no tenant has any defenses, set-offs or
counterclaims against Mortgagor; (e) the Leases are in full force and
effect; and (f) Mortgagor has not accepted Rent under any Lease more than
sixty (60) days in advance of its accrual, and payment thereof has not
otherwise been forgiven, discounted or compromised.
4.3. Mortgagor shall not, without the prior written consent of
Mortgagee (which consent shall not be unreasonably withheld or delayed):
(a) enter into any lease of all or any portion of the Property in excess of
2,500 net leaseable square feet; (b) amend, modify, terminate or accept a
surrender of any Lease in excess of 2,500 net leaseable square feet; or (c)
collect or accept rent from any tenant of the Property for a period of more
than two (2) months in advance. Any of the foregoing acts, if done without
the prior written consent of Mortgagee in each instance, shall be null and
void.
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that
Mortgagor has no knowledge of any offsets, counterclaims or defenses to the
Liabilities either at law or in equity. Mortgagor shall, within three (3)
days upon request in person or within seven (7) days upon request by mail,
furnish to Mortgagee or Mortgagee's designee a written statement in form
satisfactory to Mortgagee stating the amount due under the Liabilities and
whether there are offsets or defenses against the same, and if so, the
nature and extent thereof.
6. ENVIRONMENTAL MATTERS.
6.1. Definitions. As used herein, "Environmental Laws" shall mean
all applicable existing or future federal, state and local statutes,
ordinances, regulations, rules, executive orders, standards and
requirements, including the requirements imposed by common law, concerning
or relating to industrial hygiene and the protection of health and the
environment including but not limited to: (a) those relating to the
generation, manufacture, storage, transportation, disposal, release,
emission or discharge of Hazardous Substances (as hereinafter defined); (b)
those in connection with the construction, fuel supply, power generation
and transmission, waste disposal or any other operations or processes
relating to the Property; and (c) those relating to the atmosphere, soil,
surface and ground water, wetlands, stream sediments and vegetation on,
under, in or about the Property. Any terms mentioned herein which are
defined in any Environmental Law shall have the meanings ascribed to such
terms in said laws; provided, however, that if any of such laws are amended
so as to broaden any term defined therein, such broader meaning shall apply
subsequent to the effective date of such amendment.
6.2. Representations, Warranties and Covenants. Xxxxxxxxx
represents, warrants, covenants and agrees as follows:
(a) To the actual knowledge of Xxxxxxxxx, neither Xxxxxxxxx
nor the Property or any occupant thereof is in violation of or subject to
any existing, pending or threatened investigation by any governmental
authority pertaining to any Environmental Law. Mortgagor shall not cause
the Property to be in violation of, or do anything which would subject the
Property to any remedial obligations under, any Environmental Law, and
shall promptly notify Mortgagee in writing of any existing, pending or
threatened investigation by any governmental authority in connection with
any Environmental Law. In addition, Mortgagor shall provide Mortgagee with
copies of any and all material written communications with any governmental
authority in connection with any Environmental Law, promptly after
Xxxxxxxxx's giving or receiving of same.
(b) To the actual knowledge of Mortgagor, there has been no
release, spill, discharge, leak, disposal or emission (individually a
"Release" and collectively, "Releases") of any Hazardous Material,
Hazardous Substance or Hazardous Waste, including gasoline, petroleum
products, explosives, toxic substances, solid wastes and radioactive
materials (collectively, "Hazardous Substances") at,
10
OR BK 30519 PG 0379
upon, under or within the Property. The use which Mortgagor makes or
intends to make of the Property will not result in Release of any Hazardous
Substances on or to the Property. During the term of this Mortgage and
prior to any transfer of control of the Property to Mortgagee, its designee
or a receiver, if Xxxxxxxxx finds a Release of Hazardous Substances on or
to the Property has occurred, Mortgagor shall remove or remediate, or shall
cause to be removed or remediated, to the extent required by law the same
promptly upon discovery at no cost and expense to Mortgagee. Hazardous
Substances shall not include reasonable quantities of petroleum and
chemical products, in proper storage containers, that are necessary for the
construction of the Property, or used in the ordinary course of the
commercial business of Mortgagor or any of its tenants, and the usual waste
products therefrom.
(c) To the actual knowledge of Mortgagor, the Property has
never been used by the present or previous owners and/or operators nor will
be used in the future to refine, produce, store, handle, transfer, process,
transport, generate, manufacture, heat, treat, recycle or dispose of
Hazardous Substances.
(d) To the actual knowledge of Mortgagor, the Property: (i)
is being and has been operated in compliance in all material respects with
all Environmental Laws, and all permits required thereunder have been
obtained and complied with in all material respects; and (ii) does not have
any Hazardous Substances.
(e) Mortgagor will and will use commercially reasonable
efforts to cause its tenants to operate the Property in compliance in all
material respects with all Environmental Laws and will not place any
Hazardous Substances on the Property.
(f) To the actual knowledge of Mortgagor, no lien has been
attached to or threatened to be imposed upon the Property, and there is no
basis for the imposition of any such lien based on any governmental action
under Environmental Laws. To the actual knowledge of Xxxxxxxxx, neither
Xxxxxxxxx nor any other person has been, is or will be involved in
operations at the Property which would likely lead to the imposition of
environmental liability on Mortgagor, or on any subsequent or former owner
of the Property, or the creation of an environmental lien on the Property.
In the event that any such lien is filed during the term of this Mortgage
and prior to transfer of control of the Property to Mortgagee, its designee
or a receiver, Mortgagor shall, within (30) days from the date that the
Mortgagor is given notice of such lien (or within such shorter period of
time as is appropriate in the event that steps have commenced to have the
Property sold), either: (i) pay the claim and remove the lien from the
Property; or (ii) furnish a cash deposit, bond or other security reasonably
satisfactory in form and substance to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
6.3. Right to Inspect and Cure. Mortgagee shall have the right to
conduct or have conducted by its agents or contractors such environmental
inspections, audits and tests as Mortgagee shall deem reasonably necessary
or advisable from time to time at the sole cost and expense of Mortgagor;
provided, however, that Mortgagor shall not be obligated to bear the
expense of such environmental inspections, audits and tests so long as (a)
no Event of Default exists, and (b) there is not sufficient evidence to
reasonably conclude that there has been a Release or threatened Release of
Hazardous Substances at the Property or that Mortgagor or the Property is
in violation of any Environmental Law. The cost of such inspections,
audits and tests, if chargeable to Mortgagor as aforesaid, shall be added
to the Liabilities and shall be secured by this Mortgage. Mortgagor shall,
and shall cause each tenant of the Property to, cooperate with such
inspection efforts; such cooperation shall include, without limitation,
supplying all information reasonably requested concerning the operations
conducted and Hazardous Substances located at the Property. In the event
that Xxxxxxxxx fails to comply in any material respect with any
Environmental Law, Mortgagee may, in addition to any of its other remedies
under this Mortgage, cause the Property to be in compliance with such laws
and the cost of such compliance shall be added to the sums secured by this
Mortgage in accordance with the provisions of Section 1 hereof.
7. EVENTS OF DEFAULT. Each of the following shall constitute a default
(each, an "Event of Default") hereunder:
11
OR BK 30519 PG 0380
7.1. Non-payment within five (5) days from when due of any sum
required to be paid to Mortgagee under any of the Loan Documents, including
without limitation, principal and interest;
7.2. A breach of any covenant contained in Sections 2.3., 2.4., 2.6.
or 2.7. hereof;
7.3. A breach by Mortgagor of any other term, covenant, condition,
obligation or agreement under this Mortgage in any material respect, and
the continuance of such breach for a period of thirty (30) days after
written notice thereof shall have been given to Mortgagor; provided,
however, that in the event that such breach is not capable of being cured
within such thirty (30) day period (despite the diligent, good-faith
efforts of Mortgagor to effect such cure), then provided Mortgagor
diligently commences to cure within such thirty (30) day period and
thereafter diligently pursues the cure of such breach, then Mortgagor shall
have a reasonable period of time to cure such breach not to exceed one
hundred eighty (180) days after written notice was given to Mortgagor of
such breach (it being understood and agreed that, notwithstanding anything
contained under the Loan Documents to the contrary: (a) in no event shall
Mortgagee be obligated to continue to advance any Loan proceeds to
Mortgagor under the Loan Agreement until such time as such breach is so
cured; and (b) Mortgagee shall not be required to provide any written
notice to Mortgagor nor shall Mortgagor have any grace period in the event
Mortgagor or Guarantor voluntarily files for relief under the Federal
Bankruptcy Code or any similar federal or state statute).
7.4. An Event of Default under any of the other Loan Documents,
including payment by Mortgagee under any letter of credit issued by
Mortgagee on behalf of Xxxxxxxxx;
7.5. Any representation or warranty made by Mortgagor or by
Guarantor in any Loan Document or to induce Mortgagee to enter into the
transactions contemplated hereunder shall prove to be false, incorrect or
misleading in any material respect as of the date when made and not
otherwise cured within thirty (30) days of Xxxxxxxxx's receipt of written
notice thereof from Mortgagee; provided, however, that in the event that
such breach is not capable of being cured within such thirty (30) day
period (despite the diligent, good-faith efforts of Mortgagor to effect
such cure), then provided Mortgagor diligently commences to cure within
such thirty (30) day period and thereafter diligently pursues the cure of
such breach, then Mortgagor shall have a reasonable period of time to cure
such breach not to exceed one hundred eighty (180) days after written
notice was given to Mortgagor of such breach (it being understood and
agreed that, notwithstanding anything contained under the Loan Documents to
the contrary, in no event shall Mortgagee be obligated to continue to
advance any Loan proceeds to Mortgagor under the Loan Agreement until such
time as such breach is so cured).
7.6. The filing by or against Mortgagor or Guarantor of a petition
seeking relief, or the granting of relief, under the Federal Bankruptcy
Code or any similar federal or state statute and, in the case of any such
involuntary filing, the expiration of 90 days without dismissal of such
filing; any assignment for the benefit of creditors made by Mortgagor or
Guarantor; the appointment of a custodian, receiver, liquidator or trustee
for Mortgagor or Guarantor or for any of the property of Mortgagor or for
any of the material property of Guarantor, or any action by Mortgagor or
Guarantor to effect any of the foregoing; or if Mortgagor or Guarantor
becomes insolvent as defined under any applicable statute or is not paying
its debts generally as they become due;
7.7. The dissolution, liquidation, merger, consolidation or
reorganization of Mortgagor or the dissolution or liquidation of Guarantor
other than in the ordinary course of its business, or the institution of
any proceeding to effect any of the foregoing;
7.8. A default under any other material obligation by Xxxxxxxxx in
favor of Mortgagee, including obligations arising under swap agreements (as
defined in 11 U.S.C. Subsection 101), or under any document securing or
evidencing such obligation, whether or not such obligation is secured by
the Property; or
7.9. A default under any other obligation secured by the Property or
any part thereof.
12
OR BK 30519 PG 0381
8. REMEDIES. If an Event of Default shall have occurred, Mortgagee may
take any of the following actions:
8.1. Acceleration. Mortgagee may declare the entire amount of the
Liabilities immediately due and payable, without presentment, demand,
notice of any kind, protest or notice of protest, all of which are
expressly waived, notwithstanding anything to the contrary contained in any
of the Loan Documents. Mortgagee may charge and collect interest from the
date of default on the unpaid balance of the Liabilities, at the Default
Rate set forth in the Note. In addition, any and all accelerations of any
portion of the remaining principal balance of the Liabilities (including,
without limitation, foreclosure by Mortgagee under this Mortgage) shall be
subject to the Prepayment Consideration (as defined and described in the
Note), if any.
8.2. Possession. Mortgagee may enter upon and take possession of
the Property, with or without legal action, lease the Property, collect
therefrom all rentals and, after deducting all costs of collection and
administration expense, apply the net rentals to any one or more of the
following items in such manner and in such order of priority as Mortgagee,
in Mortgagee's sole discretion, may elect: the payment of any sums due
under any prior lien, taxes, water and sewer rents, charges and claims,
insurance premiums and all other carrying charges, to the maintenance,
repair or restoration of the Property, or on account of the Liabilities.
Mortgagee is given full authority to do any act which Xxxxxxxxx could do in
connection with the management and operation of the Property. This covenant
is effective either with or without any action brought to foreclose this
Mortgage and without applying for a receiver of such rents. In addition to
the foregoing, upon the occurrence of an Event of Default, Xxxxxxxxx shall
pay monthly in advance to Mortgagee or to any receiver appointed to collect
said rents the fair and reasonable rental value for Xxxxxxxxx's use and
occupation of the Property, and upon default in any such payment Mortgagor
shall vacate and surrender the possession of the Property to Mortgagee or
to such receiver. If Xxxxxxxxx does not vacate and surrender the Property
then Xxxxxxxxx may be evicted by summary proceedings.
8.3. Foreclosure. Mortgagee may institute any one or more actions
of mortgage foreclosure against all or any part of the Property, or take
such other action at law, equity or by contract for the enforcement of this
Mortgage and realization on the security herein or elsewhere provided for,
as the law may allow, and may proceed therein to final judgment and
execution for the entire unpaid balance of the Liabilities. The unpaid
balance of any judgment shall bear interest at the greater of (a) the
statutory rate provided for judgments, or (b) the Default Rate. Without
limiting the foregoing, Mortgagee may foreclose this Mortgage and exercise
its rights as a secured party for all or any portion of the Liabilities
which are then due and payable, subject to the continuing lien of this
Mortgage for the balance not then due and payable. In case of any sale of
the Property by judicial proceedings, the Property may be sold in one
parcel or in such parcels, manner or order as Mortgagee in its sole
discretion may elect. Mortgagor, for itself and anyone claiming by, through
or under it, hereby agrees that Mortgagee shall in no manner, in law or in
equity, be limited, except as herein provided, in the exercise of its
rights in the Property or in any other security hereunder or otherwise
appertaining to the Liabilities or any other obligation secured by this
Mortgage, whether by any statute, rule or precedent which may otherwise
require said security to be marshalled in any manner and Mortgagor, for
itself and others as aforesaid, hereby expressly waives and releases any
right to or benefit thereof. The failure to make any tenant a defendant to
a foreclosure proceeding shall not be asserted by Mortgagor as a defense in
any proceeding instituted by Mortgagee to collect the Liabilities or any
deficiency remaining unpaid after the foreclosure sale of the Property.
8.4. Appointment of Receiver. Mortgagee may petition a court of
competent jurisdiction to appoint a receiver of the Property. Such
appointment may be made either before or after sale, without notice,
without regard to the solvency or insolvency of Mortgagor at the time of
application for such receiver, without regard to the then value of the
Property or whether the Property shall be then occupied as a homestead or
not, and without regard to whether Xxxxxxxxx has committed waste or allowed
deterioration of the Property, and Mortgagee or any agent of Mortgagee may
be appointed as such receiver as provided by applicable law. Such receiver
shall have the power to perform all of the acts permitted Mortgagee
pursuant to Section 8.2 above and such other powers which may be necessary
or
13
OR BK 30519 PG 0382
customary in such cases for the protection, possession, control, management
and operation of the Property during such period.
8.5. Rights as a Secured Party. Mortgagee shall have, in addition
to other rights and remedies available at law or in equity, the rights and
remedies of a secured party under the Code. Mortgagee may elect to
foreclose such of the Property as then comprise fixtures pursuant either to
the law applicable to foreclosure of an interest in real estate or to that
applicable to personal property under the Code. To the extent permitted by
law, Xxxxxxxxx waives the right to any stay of execution and the benefit of
all exemption laws now or hereafter in effect.
8.6. Excess Monies. Mortgagee may apply on account of the
Liabilities any unexpended monies still retained by Mortgagee that were
paid by Mortgagor to Mortgagee: (a) for the payment of, or as security for
the payment of taxes, assessments or other governmental charges, insurance
premiums, or any other charges; or (b) to secure the performance of some
act by Xxxxxxxxx.
8.7. Other Remedies. Mortgagee shall have the right, from time to
time, to bring an appropriate action to recover any sums required to be
paid by Mortgagor under the terms of this Mortgage, as they become due,
without regard to whether or not any other Liabilities shall be due, and
without prejudice to the right of Mortgagee thereafter to bring an action
of mortgage foreclosure, or any other action, for any default by Mortgagor
existing at the time the earlier action was commenced. In addition,
Mortgagee shall have the right to set-off all or any part of any amount due
by Mortgagor to Mortgagee under any of the Liabilities, against any
indebtedness, liabilities or obligations owing by. Mortgagee in any
capacity to Mortgagor, including any obligation to disburse to Mortgagor
any funds or other property on deposit with or otherwise in the possession,
control or custody of Mortgagee.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage
shall be in writing and shall be given by either (a) hand-delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid), to the addresses listed in this Mortgage. Notice
shall be deemed to have been given and received: (a) if by hand delivery,
upon delivery; (b) if by mail, three (3) calendar days after the date first
deposited in the United States mail; and (c) if by overnight courier, on
the date scheduled for delivery. A party may change its address by giving
written notice to the other party as specified herein.
9.2. Remedies Cumulative. Subject to Section 9.9 of this Mortgage,
the rights and remedies of Mortgagee as provided in this Mortgage or in any
other Loan Document shall be cumulative and concurrent, may be pursued
separately, successively or together, may be exercised as often as occasion
therefor shall arise, and shall be in addition to any other rights or
remedies conferred upon Mortgagee at law or in equity. The failure, at any
one or more times, of Mortgagee to assert the right to declare the
Liabilities due, grant any extension of time for payment of the
Liabilities, take other or additional security for the payment thereof,
release any security, change any of the terms of the Loan Documents, or
waive or fail to exercise any right or remedy under any Loan Document shall
not in any way affect this Mortgage or the rights of Mortgagee.
9.3. No Implied Waiver. Mortgagee shall not be deemed to have
modified or waived any of its rights or remedies hereunder unless such
modification or waiver is in writing and signed by Mortgagee, and then only
to the extent specifically set forth therein. A waiver in one event shall
not be construed as continuing or as a waiver of or bar to such right or
remedy on a subsequent event.
9.4. Partial Invalidity. The invalidity or unenforceability of any
one or more provisions of this Mortgage shall not render any other
provision invalid or unenforceable. In lieu of any invalid or
unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable
provision as may be possible.
14
OR BK 30519 PG 0383
9.5. Binding Effect. The covenants, conditions, waivers, releases
and agreements contained in this Mortgage shall bind, and the benefits
thereof shall inure to, the parties hereto and their respective heirs,
executors, administrators, successors and assigns; provided, however, that,
except as otherwise provided in Section 2.6 of this Mortgage, this Mortgage
cannot be assigned by Mortgagor without the prior written consent of
Mortgagee, and any such assignment or attempted assignment by Mortgagor
shall be void and of no effect with respect to Mortgagee.
9.6. Modifications. This Mortgage may not be supplemented,
extended, modified or terminated except by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
9.7. Commercial Loan. Mortgagor represents and warrants that the
loans or other financial accommodations included as Liabilities secured by
this Mortgage were obtained solely for the purpose of carrying on or
acquiring a business or commercial investment and not for residential,
consumer or household purposes.
9.8. Governing Law. This Mortgage shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
9.9. Joint and Several Liability. If Mortgagor consists of more
than one person or entity, the word "Mortgagor" shall mean each of them and
their liability shall be joint and several. This Mortgage and the other
Loan Documents as pertaining to Mortgagor shall only be enforceable against
Mortgagor and, notwithstanding anything to the contrary in this Mortgage
and/or the other Loan Documents, no present or future "Constituent Partner"
(as defined herein) in or "Affiliate" (as defined herein) of Mortgagor nor
any Affiliate of any person that is or becomes a Constituent Partner in
Mortgagor, shall be personally liable, directly or indirectly, under or in
connection with this Mortgage and/or the other Loan Documents, or any
document, instrument or certificate securing or otherwise executed in
connection with this Mortgage and/or the other Loan Documents, or any
amendments or modifications to any of the foregoing made at any time or
times, heretofore or hereafter, or in respect of any matter, condition,
injury or loss related to this Mortgage and/or the other Loan Documents or
the Property; and Mortgagee and each of its successors and assignees waives
and does hereby waive any such personal liability. For purposes of this
Mortgage and/or the other Loan Documents, and any such documents,
instruments and certificates, and any such amendments and modifications,
neither the negative capital account of any Constituent Partner in
Mortgagor, nor any obligation of any Constituent Partner in Mortgagor to
restore a negative capital account or to contribute capital to Mortgagor or
to any other Constituent Partner in Mortgagor, shall at any time be deemed
to be the property of or an asset of Mortgagor or such other Constituent
Partner and neither Mortgagee nor any of its successors or assignees shall
have any right to collect, enforce or proceed against or with respect to
any such negative capital account or a Constituent Partner's obligation to
restore or contribute. As used in this paragraph, a "Constituent Partner"
in Mortgagor shall mean any direct partner or member in Mortgagor and any
person that is a partner or member in any partnership or limited liability
company that, directly or indirectly, through one or more other
partnerships or limited liability companies, is a partner or member in
Mortgagor. As used herein, "person" means any individual, partnership,
corporation, limited liability company, trust or other entity. "Affiliate"
of a specified person or entity for the purposes of this Mortgage and/or
the other Loan Documents, means (i) a director, trustee, officer, employee,
agent, partner, member, shareholder, subsidiary, or attorney of such
entity, or (ii) a person or entity which (either directly or indirectly,
through one or more intermediaries) controls, is under common control with
or is controlled by such person or entity, or (iii) any person or entity
that, directly or indirectly, is the beneficial owner of ten percent (10%)
or more of any class of voting securities (or otherwise has a substantial
beneficial interest) in such entity or of which such person or entity is
directly or indirectly the beneficial owner of ten percent (10%) or more of
any class of voting securities (or in which such person or entity has a
substantial beneficial interest), or (iv) any person or entity that is a
director, trustee, officer, employee, agent, partner, member, shareholder,
subsidiary or attorney of any of the foregoing. For purposes of this
definition, control of a specified person or entity (including the
correlative terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and
15
OR BK 30519 PG 0384
policies of the specified person or entity, whether through ownership of
voting securities, the ability to appoint the majority of an entity's
trustees, directors or persons in a similar capacity, or otherwise. For
purposes of applying this definition, the managing partner of a general
partner or limited partnership will be deemed to be in control thereof
provided such managing partner possesses the power to direct or cause the
direction of the management and policies of the partnership. The
provisions of this Section shall survive any foreclosure or other
satisfaction of the Mortgage.
9.10. Non-Merger. In the event Mortgagee shall acquire title to the
Property by conveyance from Mortgagor or as a result of foreclosure, this
Mortgage shall not merge in the fee estate of the Property but shall remain
and continue as an existing and enforceable lien for the Liabilities
secured hereby until the same shall be released of record by Mortgagee in
writing.
9.11. Compliance with Loan Commitment. The Mortgagor shall timely
comply with, abide by and perform all of the surviving terms and conditions
of that certain letter of commitment between the Mortgagor and the
Mortgagee, dated January 26, 2000 (the "Loan Commitment") on its part to be
complied with, abided by and performed. In the event of any conflict
between the terms of the Loan Commitment and this Mortgage, the terms of
this Mortgage shall control and govern.
9.12. Indemnification. The Mortgagor has read and does hereby
approve the legal description of the Property which is the subject of this
Mortgage, as set forth in Exhibit A attached hereto and incorporated by
reference herein, and hereby agrees to indemnify the Mortgagee and its
attorneys with respect to any liability which might arise as a consequence
of Section 697.10 of the Florida Statutes.
9.13. Loan Agreement. The Mortgagor will cause the improvements
specified in the Loan Agreement dated of even date herewith by the
Mortgagor to the Mortgagee ("Loan Agreement") to be constructed in all
material respects in accordance with all of the terms, provisions and
conditions of the Loan Agreement, will pursue such construction with due
diligence and complete same lien-free on or before the date of completion
specified in the Loan Agreement, will comply in all material respects with
all the covenants made by it in the Loan Agreement and will permit no
default to occur thereunder and be continuing. Reference is made herein to
the Loan Agreement for all purposes to the same extent and effect as if the
Loan Agreement was fully set forth herein and made a part of this Mortgage.
In the event of the Mortgagor's failure to carry on or complete
construction or other default of the Mortgagor under the Loan Agreement and
whether or not the Mortgagee shall cause the Indebtedness to become
immediately due and payable, the Mortgagee, after due notice to the
Mortgagor, is hereby vested with full and complete authority to enter upon
the Mortgaged Property to employ watchmen to protect the Mortgaged Property
from depredation or injury and to preserve and protect the personal
property therein, to continue any and all outstanding contracts for
erection and completion of the Improvements on the Mortgaged Property, to
make and enter into any contracts and obligations wherever necessary,
either in its own name as Mortgagee hereunder or in the name of the
Mortgagor, and pay and discharge all debts, obligations and liabilities
incurred thereby. All sums so advanced by the Mortgagee (exclusive of
advances of the principal of the Indebtedness) shall be added to the
principal of the Indebtedness, shall be secured by this Mortgage and shall
be due and payable on demand with interest at the rate set forth in the
Note applicable to a period when default exists thereunder.
9.14. WAIVER OF JURY TRIAL. XXXXXXXXX XXXXXX KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON THIS MORTGAGE, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS MORTGAGE OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS MORTGAGE, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
MORTGAGEE'S ACCEPTING THIS MORTGAGE FROM MORTGAGOR.
16
OR BK 30519 PG 0385
IN WITNESS WHEREOF, Xxxxxxxxx, intending to be legally bound, has
duly executed and delivered this Mortgage and Security Agreement as of the
date and year first above written.
MORTGAGOR:
/s/ Xxxxxx X. Xxxxx XXXXXX TOWN CENTER, LLC, a Delaware
------------------------------- limited liability company
Signature
By: ARVIDA/JMB PARTNERS, a Florida
Printed Name: Xxxxxx X. Xxxxx general partnership, its sole
member
By: ARVIDA/JMB MANAGERS,
/s/ Xxxxx X. Xxxxx INC., a Delaware
------------------------------- corporation,
Signature a general partner
Printed Name: Xxxxx X. Xxxxx
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
Date: May 19, 2000
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation and that the seal affixed thereto is
the true corporate seal of said corporation. He/she is personally known to
me or who has produced ______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Notary Public, State of Illinois
My Commission Expires 01/14/01
17
INSTR # 100285622
OR BK 30519 PG 0403
RECORDED 05/22/2000 01:24 PM
COMMISSION
BROWARD COUNTY
DEPUTY CLERK 1033
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
---------------------------------------
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS dated May 19, 2000 (together
with any amendments or modifications hereto in effect from time to time the
"Assignment"), between WESTON TOWN CENTER, LLC, a Delaware limited
liability company, having an office at 0000 Xxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000 ("Assignor") and FIRST UNION NATIONAL ASSIGNEE, a national
banking association, having an office at 000 X. Xxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Assignee or Lender").
1. GRANT OF ASSIGNMENT.
WHEREAS, Assignor has executed and delivered to Assignee a Promissory
Note, dated of even date herewith, in the principal amount of TWENTY
MILLION DOLLARS ($20,000,000) ("Note") evidencing a construction/mini-perm
loan credit facility ("Construction Loan") to be disbursed pursuant to the
terms of that certain Construction Loan Agreement of even date between
Assignee and Assignor ("Loan Agreement"); and
WHEREAS, to secure payment of the Note, the Assignor has executed and
delivered to Assignee a mortgage of even date herewith ("Mortgage"),
covering land situated in the City of Weston, Broward County, Florida,
described on Exhibit "A", attached hereto and made a part hereof, to the
same extent as if fully set out herein, and the buildings and improvements
and furniture, fixtures, furnishings, equipment and personal property owned
by the Assignor now or hereafter located thereon (hereinafter collectively
called the "Property"); and
WHEREAS, the Assignee, as a condition to making the loan(s) evidenced
by the Note, has required the execution of this Assignment;
NOW, THEREFORE, in consideration of the premises, and in further
consideration of the sum of TEN AND NO/100 DOLLARS ($10) paid by the
Assignee to the Assignor, the receipt of which is hereby acknowledged, the
Assignor does hereby agree as follows:
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Assignor hereby conveys, transfers and
assigns to Assignee, all of the right, title, and interest of Assignor now
existing or hereafter arising in and to the following "Collateral":
1.1. All leases, subleases, tenancies, licenses, occupancy
agreements or agreements to lease all or any portion of the Property,
together with any extensions, renewals, amendments, modifications or
replacements thereof, and any options, rights of first refusal or
guarantees of any tenant's obligations under any lease now or hereafter in
effect (individually, a "Lease" and collectively, the "Leases") and all
other agreements for the purchase, use, occupancy or possession of all or
any part of the Property, together with any and all security deposits, down
payments, escrow account deposits, and the like, made thereunder, all
extensions, amendments, modifications, renewals and replacements of any
thereof, and any guaranties of the lessees', sublessees', licensees',
concessionaires', tenants', occupants', users' or purchasers' (hereinafter
collectively called the "Lessees") obligations under any thereof (each of
said leases, subleases, licenses, concessions, tenancies and other
agreements for purchase, use, occupancy or possession, now existing and
hereafter executed, together with all such extensions, amendments,
modifications, renewals, replacements and guaranties, being hereinafter
collectively referred to as the "Leases" and "Agreements" and individually
referred to as a "Lease" or an "Agreement," either term of which shall be
deemed to include any such lease, sublease, license, concession, tenancy or
other agreement for the purchase, use, occupancy or possession of the
Property);
1.2. All rents, income, receipts, revenues, reserves, issues and
profits arising under any Lease including, without limitation, insurance
proceeds, condemnation awards now or hereafter accruing
1
OR BK 30519 PG 0404
or owing from the Leases or Agreements or otherwise derived from the
Subject Property, including, without limitation, all amounts payable by any
party thereto on account of maintenance, repairs, taxes, insurance and
common area or other charges and all amounts paid in cancellation of Leases
or Agreements (hereinafter collectively referred to as the "Rentals"),
whether accruing before or after foreclosure of the Mortgage or during any
appeal period after a final judgment of foreclosure, minimum rents,
additional rents, percentage rents, parking, maintenance and deficiency
rents (together with the items described in sections 1.3., 1.4. and 1.5.
below, the "Rents");
1.3. All awards and payments of any kind derived from or relating to
any Lease including, without limitation: (i) claims for the recovery of
damages to the Property by proceeds of any policy of insurance or
otherwise, or for the abatement of any nuisance existing thereon; (ii)
claims for damages resulting from acts of insolvency or Assigneeruptcy or
otherwise; (iii) lump sum payments for the cancellation or termination of
any Lease, the waiver of any term thereof, or the exercise of any right of
first refusal or option to purchase; and (iv) the return of any insurance
premiums or ad valorem tax payments made in advance and subsequently
refunded;
1.4. The proceeds of any rental or loss of rents insurance carried
by Assignor on the Property;
1.5. All security deposits and escrow accounts made by any tenant or
subtenant under any Lease;
1.6. All building permits, surveys, architectural plans and
specifications, governmental approvals, licenses, agreements with utilities
companies and all other consents and approvals which Assignor may now or
hereafter own with respect to or in connection with the Property and/or any
improvements now or hereafter constructed thereon; and
1.7. All warranties and guarantees covering any appliances and
fixtures now or hereafter located on or placed upon the Subject Property.
2. ABSOLUTE ASSIGNMENT; LICENSE TO COLLECT.
2.1. This Assignment is intended to be and shall constitute an
unconditional, absolute and present assignment from Assignor to Assignee of
all of Assignor's right, title and interest in and to the Leases and Rents
(subject to Section 6 hereof), and not an assignment in the nature of a
pledge of such Leases and Rents or the mere grant of a security interest
therein.
2.2. All of the foregoing described Collateral is being hereby
granted, transferred and assigned for the purpose of securing:
(i) Payment of all indebtedness evidenced by the Note
(including any extensions, modifications, future
advances, or renewals thereof) and all other sums
secured by the Mortgage and all the other "Loan
Documents" (as hereinafter defined); and
(ii) Performance and discharge of each and every
obligation, covenant and agreement of the Assignor
contained herein, in the Note, in the Mortgage, in
the Loan Agreement and in all the other Loan Documents.
2
OR BK 30519 PG 0405
A. To protect the security of this Assignment, the Assignor agrees
as follows:
(i) To faithfully abide by, perform and discharge each and
every term, condition, obligation, covenant and agreement, which the
Assignor is now, or hereafter becomes, liable to observe or perform under
the Leases and Agreements; to give prompt written notice to the Assignee of
any notice of default received by Assignor with respect to any default of
Assignor under any Lease or Agreement, together with an accurate, complete
copy of any such notice; at the sole cost and expense of the Assignor, to
enforce or secure the performance of each and every term, obligation,
covenant, condition and agreement to be performed by all Lessees and all
other parties under the Leases and Agreements in all material respects; and
to provide Assignee with an accurate, complete copy of any notice of
default sent by Assignor with respect to any Lease or Agreement, when so
sent by Assignor.
(ii) At the Assignor's sole cost and expense, to appear in and
defend any dispute, action or proceeding arising under, growing out of or
in any manner connected with any of the Leases or Agreements or the
obligations, duties or liabilities of the Assignor or any Lessee or any
other party thereunder, and to pay all costs and expenses of the Assignee,
including reasonable attorneys' fees and paralegals' fees, including any
sales or service tax due and payable upon the attorneys' fees and
paralegals' fees (through all trial and appellate levels, including
post-judgment and administrative proceedings) in connection with any such
dispute, action or proceeding in which the Assignee may appear or with
respect to which it may incur costs or expenses.
(iii) Should the Assignor fail in any material respect to make
any payment or to do any act as herein provided, then the Assignee may, but
without obligation to do so, without notice or demand to or upon Assignor,
and without releasing the Assignor from any obligation hereof, make or do
the same in such manner and to such extent as the Assignee may deem
necessary to protect the security hereof, including, specifically, without
limiting its general powers, appearing in and defending any action or
proceeding relating hereto or to the Leases or Agreements, or purporting to
affect the security hereof or the rights or powers of the Assignee
hereunder, and also performing and discharging each and every obligation,
covenant and agreement of the Assignor contained in the Leases and
Agreements; and, in exercising any such powers, Assignee may pay necessary
costs and expenses, employ counsel and incur and pay reasonable attorneys'
fees and paralegals' fees, including any sales or service tax due and
payable upon the attorneys' fees and paralegals' fees. The Assignor hereby
grants to the Assignee an irrevocable power of attorney coupled with an
interest and with full power of substitution to perform all of the acts and
things provided for in this Assignment hereof, as Assignor's agent and in
Assignor's name.
(iv) To pay immediately upon demand all sums expended by the
Assignee under the authority hereof, together with interest thereon at the
rate set forth in the Note applicable to a period when default exists
thereunder and the same shall be secured hereby and by the Mortgage.
(v) Until the indebtedness secured hereby shall have been
paid in full, Assignor covenants and agrees to provide Xxxxxx with executed
copies of all Leases and Agreements, to assign to Lender any and all
subsequent Leases and Agreements covering all or any part of the Property
and to make, execute and deliver to Lender, upon demand, any and all
instruments that may be reasonably necessary or desirable therefor. The
terms and conditions of this Assignment shall, however, apply to any such
subsequent Leases and Assignments, whether or not such instruments are
executed or delivered by Assignor. Notwithstanding anything contained to
the contrary contained herein, Lender shall have the right to review and
approve each Lease in excess of 2,500 net leaseable square feet prior to
Assignor's execution of same, with Xxxxxx's approval not to be unreasonably
withheld and/or delayed.
(vi) Except in the ordinary course of business while the Note
and Mortgage are in good standing, Assignor agrees not to modify, amend,
extend, renew or in any way alter the terms of any of the Leases and
Agreements in excess of 2,500 net leaseable square feet; not to waive,
excuse, condone or in any manner release or discharge in any material
respect the Lessees or any other party thereunder of or from any
obligation, covenant, condition or agreement by said Lessees to be
performed thereunder, including the obligation to pay the Rentals and all
other sums called for thereunder in the
3
OR BK 30519 PG 0406
manner and at the places and times specified therein for any Lease in
excess of 2,500 net leaseable square feet; and not to terminate the term
thereof nor accept a surrender thereof for any Lease in excess of 2,500
leaseable square feet, without the prior written consent of Lender which
consent shall not be unreasonably withheld or delayed while the Note and
Mortgage are in good standing. Assignor does by these presents expressly
release, relinquish and surrender unto Lender all of Assignor's right,
power and authority to modify or in any way alter the terms and provisions
of any of the Leases and Agreements in excess of 2,500 net leaseable square
feet, or to terminate the term or accept a surrender thereof or any Lease
or Agreement in excess of 2,500 net leaseable square feet other than in the
ordinary course of business. Any attempt on the part of Assignor to
exercise such right, power or authority, without the prior written consent
of the Lender, shall be a nullity and shall be a default hereunder.
2.3. Notwithstanding that this Assignment is effective immediately,
so long as no Event of Default (as defined below) exits, Assignor shall
have the privilege under a revocable license granted hereby to operate and
manage the Property and to collect, as they become due, or within sixty
(60) days prior thereto, the Rents. Assignor shall receive and hold such
Rents, as well as the privilege and license to receive such Rents, in trust
as a fund to be applied, and Assignor hereby covenants and agrees that such
Rents shall be so applied, first to the operation, maintenance and repair
of the Property and the payment of interest, principal and other sums
becoming due under the Liabilities, before retaining and/or disbursing any
part of the Rents for any other purpose.
3. CERTAIN DEFINED TERMS. As used in this Assignment:
3.1. "Note" means that certain Promissory Note of even date herewith
from Assignor to Assignee in the principal amount of TWENTY MILLION DOLLARS
($20,000,000).
3.2. "Mortgage" means that certain Mortgage and Security Agreement
of even date herewith from Assignor to Assignee encumbering the Property
and securing the Note.
3.3. "Loan Documents" shall have the meaning set forth in the Note.
The terms of the Loan Documents, including the terms of the Loan Agreement,
are hereby made a part of this Assignment to the same extent and with the
same effect as if fully set forth herein.
3.4. "Liabilities" means, collectively: (i) the repayment of all
sums due under the Note (and all extensions, renewals, replacements and
amendments thereof) and the other Loan Documents; (ii) the performance of
all terms, conditions and covenants set forth in the Loan Documents; (iii)
the repayment of all sums due or that may become due under or in connection
with any present or future swap agreements (as defined in 11 U.S.C.
Subsection 101) between Assignor and Assignee; (iv) all other obligations
or indebtedness of Assignor to Assignee whenever borrowed or incurred,
including without limitation, principal, interest, fees, late charges and
expenses, including attorneys' fees.
3.5. All capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Loan Documents.
4. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants to
Assignee as follows: (i) Assignor has title to and full right to assign the
Leases and the Rents thereunder; (ii) no other assignment of any interest
in any of the Leases or Rents has been made; (iii) there are no leases or
agreements to lease all or any portion of the Property now in effect except
the Leases, true and complete copies of which have been furnished to
Assignee, and no written or oral modifications have been made thereto; (iv)
there is no existing default by Assignor or, to the best of Assignor's
knowledge, by any tenant under any of the Leases, nor, to the best of
Assignor's knowledge, has any event occurred which due to the passage of
time, the giving or failure to give notice, or both, would constitute a
default under any of the Leases and, to the best of Assignor's knowledge,
no tenant has any defenses, set-offs or counterclaims against Assignor; (v)
the Leases are in full force and effect; (vi) Assignor has not done
anything which might prevent Assignee from or limit Assignee in operating
under or exercising the rights granted to Assignee by this Assignment;
(vii) Assignor has not accepted Rent under any Lease more than sixty (60)
days in advance of its accrual, and payment thereof has not otherwise been
forgiven, discounted or
4
OR BK 30519 PG 0407
compromised; and (viii) Assignor has not received any funds or deposits
from any tenant except as expressly provided for in a Lease.
5. COVENANTS.
5.1. Assignor covenants and agrees that Assignor will perform all of
its obligations in all material respects, as landlord, under the Leases and
will enforce the performance by tenants of all of their respective
obligations in all material respects under the Leases, and will not do or
permit to be done anything to impair the enforceability thereof in any
material respect. Assignor covenants and agrees that Assignor will not,
without the prior written consent of Assignee in each instance: (i) accept
or collect the Rent under any Lease more than two (2) months in advance of
the due date thereof; (ii) discount, forgive, encumber or assign the Rents
or any part thereof or any Lease or any interest therein; (iii) modify the
terms of any Lease in excess of 2,500 net leaseable square feet in any
material respect; (iv) subordinate any Lease to any mortgage or other
encumbrance; (v) consent to any assignment of or subletting under any Lease
in excess of 2,500 net leaseable square feet; (vi) cancel or terminate any
Lease or accept a surrender thereof other than in the ordinary course of
business; (vii) release any guarantor or surety of any tenant's obligations
under any Lease in excess of 2,500 net leaseable square feet; or (viii)
enter into any Lease in excess of 2,500 net leaseable square feet
subsequent to the date hereof. Any of the foregoing acts, if done without
the prior written consent of Assignee, which consent shall not be
unreasonably withheld or delayed, in each instance, shall be null and void.
5.2. Assignor covenants and agrees to furnish to Assignee written
Rent Rolls on a quarterly basis or as otherwise requested by Assignee upon
the occurrence of any "Event of Default" under the Loan Documents. Such
Rent Rolls shall specify those portions of space leased, space designation,
lease amount for each space leased, amount of any deposits, name and
address of the lessee, amount of space leased during the preceding
reporting period, any rent abatements or concessions and any other
information relevant to the leasing program reasonably requested by
Assignee. All reports shall be in form reasonably satisfactory to Lender.
6. NO OBLIGATIONS OF ASSIGNEE.
6.1. Notwithstanding any legal presumption to the contrary, Assignee
shall not be obligated by reason of its acceptance of this Assignment or of
any Rent to perform any obligation of Assignor under any of the Leases, and
Assignee shall not, prior to entry upon and actually taking physical
possession of the Property, be deemed a mortgagee in possession.
6.2. Neither this Assignment nor collection by Assignee of Rents is
intended, nor shall it be construed, to operate to place responsibility
upon Assignee for: (i) the control, care, operation, management or repair
of the Property; (ii) the performance of any of the terms or conditions of
the Leases; (iii) any waste committed on, or any dangerous or defective
condition at the Property; or (iv) any negligence in the control, care,
operation, management or repair of the Property, resulting in loss or
injury or death to any tenant, licensee, employee or other person or loss
of or damage to the property of any of the foregoing; it being the intent
of the parties that the responsibility and liability for the aforesaid
matters shall remain solely with Assignor. Assignee assumes no liability
for any security deposited with Assignor by any tenant unless and until
such deposits are specifically transferred and delivered to Assignee.
7. EVENTS OF DEFAULT. Each of the following shall constitute a default
(each, an "Event of Default") hereunder after the giving of any required
notice, if any, and after the expiration of any applicable grace period, if
any.
7.1. Any representation or warranty made by Assignor in this
Assignment shall prove to be false, incorrect or misleading in any material
respect as of the date when made and the continuance thereof for a period
of thirty (30) days after written notice thereof shall have been given to
Assignor; provided, however, that in the event that such breach is not
capable of being cured within such thirty (30) day period (despite the
diligent, good-faith efforts of Assignor to effect such cure), then
provided Assignor diligently commences to cure within such thirty (30) day
period and thereafter diligently pursues the cure of such
5
OR BK 30519 PG 0408
breach, then Assignor shall have a reasonable period of time to cure such
breach not to exceed one hundred eighty (180) days after written notice was
given to Assignor of such breach (it being understood and agreed that,
notwithstanding anything contained under the Loan Documents to the
contrary, in no event shall Assignee be obligated to continue to advance
any Loan proceeds to Assignor under the Loan Agreement until such time as
such breach is so cured).
7.2. A breach by Assignor of any term, covenant, condition,
obligation or agreement under this Assignment in any material respect and
the continuance of such breach for a period of thirty (30) days after
written notice thereof shall have been given to Assignor; provided,
however, that in the event that such breach is not capable of being cured
within such thirty (30) day period (despite the diligent, good-faith
efforts of Assignor to effect such cure), then provided Assignor diligently
commences to cure within such thirty (30) day period and thereafter
diligently pursues the cure of such breach, then Assignor shall have a
reasonable period of time to cure such breach not to exceed one hundred
eighty (180) days after written notice was given to Assignor of such breach
(it being understood and agreed that, notwithstanding anything contained
under the Loan Documents to the contrary, in no event shall Assignee be
obligated to continue to advance any Loan proceeds to Assignor under the
Loan Agreement until such time as such breach is so cured).
7.3. A material default by Assignor under any of the Leases which is
not cured within any applicable cure period provided in any such Lease; or
7.4. An Event of Default under any of the other Loan Documents.
8. REMEDIES UPON AN EVENT OF DEFAULT. Upon the occurrence of an Event
of Default, the license granted to Assignor to collect the Rents shall be
automatically and immediately revoked without further notice to or demand
upon Assignor, and Assignee shall have the right, without further notice to
or demand upon Assignor, and in Assignee's absolute discretion, to exercise
any one or more of the following rights and remedies:
8.1. Without regard to the adequacy of any security, and with or
without appointment of a receiver, Assignee may enter upon and take
possession of the Property; have, hold, manage, lease and operate the same,
and collect, in its own name or in the name of Assignor, and receive all
Rents accrued but unpaid and in arrears as of the date of such Event of
Default, as well as the Rents which thereafter become due and payable; and
have full power to make from time to time all alterations, renovations,
repairs or replacements to the Property as Assignee may deem proper.
Assignee may notify the tenants under the Leases, or any property manager
or rental agent under any Contract (as such term is defined in the
Mortgage), to pay all Rents directly to Assignee. Assignor shall pay to
Assignee on demand any Rents collected by Assignor after the revocation of
the license granted to Assignor. Assignor hereby irrevocably authorizes and
directs the tenants under the Leases, and any property manager or rental
agent under any Contract, upon receipt of written notice from Assignee, to
pay all Rents due to Assignee without the necessity of any inquiry to
Assignor and without any liability respecting the determination of the
actual existence of any Event of Default claimed by Assignee or any claim
by Assignor to the contrary. Assignor further agrees that it shall
facilitate in all reasonable ways Xxxxxxxx's collection of the Rents and
will, upon Xxxxxxxx's request, execute and deliver a written notice to each
tenant under the Leases, or any property manager or rental agent under any
Contract, directing such parties to pay the Rents to Assignee. Assignor
shall have no right or claim against any parties to any Lease or Contract
who make payment to Assignee after receipt of written notice from Assignee
requesting same.
8.2. Assignee may apply such Rents to the payment of: (i) the
Liabilities, together with all costs and attorneys' fees; (ii) all taxes,
charges, claims, assessments, water rents, sewer rents and any other liens
which may be prior in lien or payment to the Liabilities, and premiums for
insurance, with interest on all such items; and (iii) the cost of all
alterations, repairs, replacements and expenses incident to taking and
retaining possession of the Property and the management and operation
thereof; all in such order or priority as Assignee in its sole discretion
may determine, any statute, law, custom or use to the contrary
notwithstanding.
6
OR BK 30519 PG 0409
8.3. Assignee may: (i) endorse as Assignor's attorney-in-fact the
name of Assignor or any subsequent owner of the Property on any checks,
drafts or other instruments received in payment of the Rents, and deposit
the same in Assignee accounts, which power of attorney is coupled with an
interest and shall be irrevocable; (ii) give proper receipts, releases and
acquittances in relation thereto in the name of Assignor; (iii) institute,
prosecute, settle or compromise any summary or legal proceedings in the
name of Assignor for the recovery of the Rents, or for damage to the
Property, or for the abatement of any nuisance thereon; and (iv) defend any
legal proceedings brought against Assignor arising out of the operation of
the Property. Any reasonable charges, expenses or fees, including
reasonable attorneys' fees and costs, incurred by Assignee in connection
with any of the foregoing shall be included in the Liabilities, and shall
be due and payable on demand, together with interest at the Default Rate,
such interest to be calculated from the date of such advance to the date of
repayment thereof.
8.4. Assignee may, at its election, but shall not be obligated to:
(i) perform any of Assignor's obligations under the Leases (provided,
however, that Assignor shall remain liable for such obligations prior to
Assignee's entering upon and taking possession of the Property
notwithstanding such election by Assignee); (ii) exercise any of Assignor's
rights, powers or privileges under the Leases; (iii) modify, cancel or
renew existing Leases or make concessions to the tenants thereto; (iv)
execute new Leases for all or any portion of the Property; and (v) take
such other action as Assignor may have taken with respect to the Leases.
9. ESTOPPEL CERTIFICATES. Assignor shall, from time to time, without
charge and within ten (10) days after requested by Assignee, execute,
acknowledge and deliver, and exercise reasonable efforts to cause each
tenant under the Leases to execute, acknowledge and deliver to Assignee a
written statement, in form and substance reasonably satisfactory to
Assignee, certifying to certain matters relating to the Leases, including
without limitation: (i) the commencement and expiration dates of the Leases
and the dates when any rents, charges and other sums commenced to be
payable thereunder; (ii) that the Leases are unmodified and in full force
and effect (or, if modified, seating the nature of such modifications and
that the Leases as so modified are in full force and effect); (iii) the
amount of Rents payable under the Leases and the dates to which the Rents
and other charges under the Leases have been paid in advance; and (iv)
whether there are any uncured defaults by Assignor or such tenant or any
setoffs or defenses against enforcement of any terms or conditions under
any Lease.
10. ASSIGNEE AS CREDITOR OF TENANTS. Notwithstanding the privilege and
license granted by Assignee herein, Assignee, and not Assignor, shall be
deemed to be the creditor of each tenant in respect of any assignment for
the benefit of creditors, bankruptcy, reorganization, insolvency,
dissolution or receivership proceedings affecting such tenant. Assignee
shall have the option to have any money received by Assignee as such
creditor applied to reduce the Liabilities or paid over to Assignor.
Assignee shall have the right to file claims in any such proceedings and to
otherwise pursue creditor's rights therein. If Assignor learns that any
tenant has become the subject of such a proceeding, Assignor shall give
Assignee prompt notice thereof.
11. TERM. Notwithstanding anything that may be contained herein to the
contrary, upon repayment in full of the Liabilities and the cancellation or
discharge of the Mortgage, this Assignment shall automatically terminate
and become null and void and all rights assigned hereunder to the
Collateral shall automatically revert back to Assignor without the
necessity for any further documentation evidencing the same. Assignor
covenants and agrees that prior to such termination, the affidavit or
certificate of any representative of Assignee stating that any of the
Liabilities remain unpaid shall be conclusive evidence of the validity,
effectiveness and continuing force of this Assignment, and any person is
hereby authorized to rely thereon. Upon written request of Xxxxxxxx,
Xxxxxxxx agrees to promptly execute an acknowledgment of this termination
and/or assignment of this Assignment in favor of Assignor upon payment in
full of the Liabilities.
12. OTHER RIGHTS OF ASSIGNEE. Assignee may, without prejudice to any of
its rights under this Assignment, take or release security, release any
party primarily or secondarily liable for any of the Liabilities, and grant
extensions, renewals, modifications or indulgences with respect to the
Note, the Mortgage or any other Loan Document.
7
OR BK 30519 PG 0410
13. NO WAIVER. The collection of Rents under the Leases, the taking of
physical possession of the Property, or any other remedial action taken by
Assignee shall not waive any Event of Default or waive, modify or affect
any notice of default under the Loan Documents, or invalidate any act done
pursuant to such notice, and the enforcement of any right or remedy by
Assignee, once exercised, shall continue for so long as Assignee shall
elect, notwithstanding that the collection and application of such Rents
may have cured or could have resulted in a cure of an Event of Default. If
Assignee thereafter elects to discontinue the exercise of any right or
remedy, that or any other right or remedy under this Assignment may be
reasserted at any time and from time to time following any subsequent Event
of Default.
14. MISCELLANEOUS.
14.1. Notices. All notices and communications under this Assignment
shall be in writing and shall be given by either (a) hand-delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid), to the addresses listed in the Mortgage. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
14.2. Remedies Cumulative. Subject to the terms of the Loan
Documents, the rights and remedies of Assignee as provided in this
Assignment or in any other Loan Document shall be cumulative and
concurrent, may be pursued separately, successively or together, may be
exercised as often as occasion therefor shall arise, and shall be in
addition to any other rights or remedies conferred upon Assignee at law or
in equity. The failure, at any one or more times, of Assignee to assert the
right to declare the Liabilities due, grant any extension of time for
payment of the Liabilities, take additional security for the payment
thereof, release any security, change any of the terms of the Loan
Documents, or waive or fail to exercise any right or remedy under any Loan
Document shall not in any way affect this Assignment or the rights of
Assignee.
14.3. No Implied Waiver. Assignee shall not be deemed to have waived
any of its rights or remedies hereunder unless such modification or waiver
is in writing and signed by Assignee, and then only to the extent
specifically set forth therein. A waiver in one event shall not be
construed as continuing or as a waiver of or bar to such right or remedy on
a subsequent event.
14.4. Partial Invalidity. The invalidity or unenforceability of any
one or more provisions of this Assignment shall not render any other
provision invalid or unenforceable. In lieu of any invalid or
unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable
provision as may be possible.
14.5. Binding Effect. The covenants, conditions, waivers, releases
and agreements contained in this Assignment shall bind, and the benefits
thereof shall inure to, the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns under the Loan
Documents; provided, however, that, except as contemplated by the Mortgage,
this Assignment cannot be assigned by Assignor without the prior written
consent of Assignee in each instance, and any such assignment or attempted
assignment by Assignor shall be void and of no effect with respect to
Assignee.
14.6. Modifications. This Assignment may not be supplemented,
extended, modified or terminated except by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
14.10. Governing Law. This Assignment shall be governed by and
construed in accordance with the substantive laws of Broward County, State
of Florida without reference to conflict of laws principles.
8
OR BK 30519 PG 0411
14.11. Joint and Several Liability. If Assignor consists of more
than one person or entity, the word "Assignor" shall mean each of them and
their liability shall be joint and several.
14.12. Limitations as to Parties. Section 14 of the Note is hereby
made a part of this Assignment to the same extent and with the same effect
as if fully set forth herein.
IN WITNESS WHEREOF, Assignor, intending to be legally bound, has duly
executed and delivered this Assignment of Leases and Rents as of the day
and year first above written.
WITNESS: ASSIGNOR:
WESTON TOWN CENTER, LLC, a Delaware
/s/ Xxxxxx X. Xxxxx limited liability company
--------------------------
Signature By: ARVIDA/JMB PARTNERS, a Florida
general partnership,
as its sole member
By: ARVIDA/JMB MANAGERS, INC.,
WITNESS: a Delaware corporation,
its general partner
/s/ Xxxxx X. Xxxxx
--------------------------
Signature /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
[ CORPORATE SEAL ]
9
OR BK 30519 PG 0412
STATE OF ILLINOIS)
)SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of the limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
___________as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Notary Public, State of Illinois
My Commission Expires 01/14/01
10
This Instrument Prepared by: INSTR #100459164
Xxxxx X. Xxxxxx, Esq. OR BK 30754 PG 1940
Xxxxx, XxXxxxxx, Xxxxx Recorded 08/10/2000 03:19 PM
Xxxxxxxx & Xxxxxxx, P.A. Commission
200 East Broward Boulevard Broward County
15th Floor
Fort Lauderdale, Florida 33301
Deputy Clerk 2015
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SPACE ABOVE THIS LINE SPACE ABOVE THIS LINE
FOR PROCESSING DATA FOR PROCESSING DATA
AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
AND ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
("AMENDMENTS")
---------------------------------------------
THIS AMENDMENT effective as of May 19, 2000, executed between FIRST
UNION NATIONAL BANK ("First Union"), having an office at 000 Xxxx Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and WESTON TOWN
CENTER, LLC, having an office at 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx
00000 ("WTC").
WITNESSETH:
WHEREAS, WTC is indebted to First Union in the principal sum of
Twenty Million Dollars ($20,000,000), or such lesser amount as may be
advanced pursuant to the Loan Agreement dated May 19, 2000, together with
interest thereon, as evidenced by a certain Promissory Note dated May 19,
2000 (the "Note"); and
WHEREAS, to secure the Note, WTC executed in favor of First Union
that certain Mortgage and Security Agreement dated May 19, 2000 and
recorded in Official Records Book 30519, page 369 of the Public Records of
Broward County, Florida ("Mortgage"), and that certain Absolute Assignment
of Leases and Rents dated May 19, 2000 and recorded in Official Records
Book 30519, Page 403 of the Public Records of Broward County, Florida
("Assignment"); and
WHEREAS, the Mortgage and Assignment contain scrivener's errors
wherein the name of First Union is transcribed incorrectly in the first
paragraph of page 1 of the Mortgage and in the first paragraph of page 1 of
the Assignment; and
WHEREAS, First Union and WTC intend to enter into this Amendment in
order to correct such xxxxxxxxx'x errors.
NOW, THEREFORE, in consideration of the sum of Ten Dollars (S 10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. The above recitals are true and correct and are incorporated
herein by this reference.
2. The name of Mortgagee contained in the first paragraph of
page 1 of the Mortgage is hereby amended to "First Union National Bank, a
national banking association."
3. The name of Assignee contained in the first paragraph of page 1
of the Assignment is hereby amended to "First Union National Bank, a
national banking association."
4. Except as otherwise specifically modified by this Amendment,
the Mortgage and Assignment remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment
effective as of the date and year first written above.
As "Mortgagee" under the Mortgage and as
"Assignee" under Assignment:
/s/ Xxxx Xxxxxxx FIRST UNION NATIONAL BANK, a
----------------------------national banking association
Signature
Printed Name: By: /s/ Xxxx X. Xxxxxxx
Xxxx Xxxxxxx ------------------------------
Xxxx X. Xxxxxxx
Vice President
/s/ Xxxxxx Xxxxxxx
----------------------------
Signature
As "Mortgagor" under the Mortgage
Printed Name: and as "Assignor" under the
Xxxxxx Xxxxxxx Assignment:
WESTON TOWN CENTER, LLC, a
Delaware limited liability company
/s/ Xxxxxx X. Xxxxx
--------------------------- By: ARVIDA/JMB PARTNERS, a Florida
Signature general partners, its sole member
Printed Name:
Xxxxxx X. Xxxxx By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Signature By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Date: 7/27/00
BK 30754 PG 1942
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
Xxxx X. Xxxxxxx, the Vice President of FIRST UNION NATIONAL BANK, a
national banking association, freely and voluntarily under authority duly
vested in him/her by said association and that the seal affixed thereto is
the true corporate seal of said association. HE/she IS PERSONALLY KNOWN TO
ME or who has produced ____________________ as identification.
Witness my hand and official seal in the County and State last
aforesaid this 7th day of August 2000.
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary seal ]
Notary Public, State of Florida
My Commission Expires January 4, 2004
#CC899809
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
Xxxxxxx Xxxxxxxxx, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him by said corporation and that the seal affixed thereto is the
true corporate seal of said corporation. He is personally known to me or
who has produced ______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 27th day of July 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary seal ]
Notary Public, State of Illinois
My Commission Expires 01/14/01
GUARANTY AGREEMENT
------------------
THIS GUARANTY dated May 19, 2000 (together with any amendments or
modifications hereto in effect from time to time, the "Guaranty"), made by
ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership, having an
address of 000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Guarantor"),
in favor of FIRST UNION NATIONAL BANK, a national banking association,
having an office at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 ("Bank").
To induce Bank to make loans, extensions of credit or other financial
accommodations to WESTON TOWN CENTER, LLC, a Delaware limited liability
company ("Borrower"), with respect to the "Project" [as defined in the
"Loan Agreement" (as hereinafter defined)], now or in the future, to secure
the observance, payment and performance of the "Liabilities" (as defined
below), and with full knowledge that Bank would not make the said loans,
extensions of credit or financial accommodations without this Guaranty
Agreement, which shall be construed as a contract of suretyship, Guarantor,
jointly and severally and unconditionally agrees as follows:
1. LIABILITIES GUARANTEED.
Guarantor hereby guarantees and becomes surety to Bank for the full,
prompt and unconditional payment of the Liabilities (as defined and limited
below), when and as the same shall become due, whether at the stated
maturity date, by acceleration or otherwise, and the full, prompt and
unconditional performance of each term and condition to be performed by
Borrower under the Loan Documents (as defined below). This Guaranty is a
primary obligation of Guarantor and shall be a continuing inexhaustible
Guaranty. This is a guaranty of payment and not of collection. Bank may
require Guarantor to pay and perform its liabilities and obligations under
this Guaranty and may proceed immediately against Guarantor without being
required to bring any proceeding or take any action against Borrower, any
other Guarantor or any other person, entity or property prior thereto, the
liability of Guarantor hereunder being joint and several, and independent
of and separate from the liability of Borrower, any other Guarantor or
person, and the availability of other collateral security for the Note and
the other Loan Documents.
2. DEFINITIONS.
2.1. "Note" means that certain Promissory Note of even date herewith
in the principal amount of Twenty Million Dollars ($20,000,000) Dollars
from Borrower to Bank.
2.2. "Loan Documents" shall have the meaning set forth in the Note.
2.3. "Liabilities" means, collectively: (i) the repayment of all
sums due under the Note (and all extensions, renewals, replacements and
amendments thereof) and the other Loan Documents; (ii) the performance of
all terms, conditions and covenants set forth in the Loan Documents,
including those set forth in Section 9.19 hereof; (iii) the repayment of
all sums due or that may become due under or in connection with any present
or future swap agreements (as defined in 11 U.S.C. subsection 101) between
Borrower and Bank; (iv) the repayment of all reimbursement obligations due or
that may become due under or in connection with any present or future letters
of credit issued by Bank for the account of Xxxxxxxx; (v) all amounts paid by
Bank under any letters of credit issued on behalf of Xxxxxxxx, including
all interest on such payments; and (vi) all other obligations or
indebtedness of Borrower to Bank under any of the Loan Documents whenever
borrowed or incurred, including without limitation, principal, interest,
fees, late charges and expenses, including attorneys' fees. Notwithstanding
anything contained in this Guaranty or the Loan Documents to the contrary,
the Liabilities guaranteed by Guarantor shall be limited as follows:
This Guaranty shall be unlimited as to the outstanding principal balance of
the Note and accrued interest thereon but shall be reduced to the top fifty
percent (50%) of the total outstanding principal balance of the Note
(without Bank being required to first proceed against its collateral), plus
all accrued interest thereon at such time that: (a) the shell certificate
of occupancy for the local space at the "Project" (as defined in
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the Loan Agreement) has been issued and the certificate of occupancy has
been issued for Publix Supermarket; (b) Borrower is in compliance with the
"Guarantee Reduction Pre-Leasing Requirement (as hereinafter defined); and
(c) Publix Supermarket has taken occupancy of its space and commenced
paying rent (collectively, "First Guarantee Reduction Conditions"). For
example, in the event the total outstanding principal balance of the Note
is $20,000,000 at the time of an "Event of Default" (which shall be deemed
to be any default which remains uncured after the giving of any required
notice and the expiration of any grace period, if otherwise applicable) by
Borrower thereunder and the First Guarantee Reduction Conditions are then
satisfied, then in such event, Guarantor shall guarantee the top
$10,000,000 of the total outstanding principal balance of the Note plus all
accrued interest thereon.
This Guaranty shall be further reduced to the top twenty-five percent (25%)
of the total outstanding principal balance of the Note (without Bank being
required to first proceed against its collateral) plus all accrued interest
at such time that: (a) the Note converts to the "Mini-Perm Period" (as
defined in the Loan Agreement); and (b) the Project achieves
"Stabilization" (as hereinafter defined) (collectively, "Second Guarantee
Reduction Conditions").
Notwithstanding the above, Bank shall not be entitled to receive more than
the Note balance, plus any accrued interest, fees and costs incurred in
connection with the collection of amounts due under the Note.
The Guarantee Reduction Pre-Leasing Requirement shall be achieved at such
time that seventy percent (70%) of the net leaseable square feet of the
Project (of which 37,887 net leaseable square feet may be credited by the
Publix Lease) is pre-leased under Bank-approved leases (Bank's approval not
to be unreasonably withheld) with terms of not less than five (5) years and
at minimum rents and CAM rates not less than pro-forma minimums.
"Stabilization" shall occur when: (a) the Note converts to the Mini-Perm
Period; (b) the Project achieves a minimum debt coverage ratio ("DCR") of
1.25X for six (6) consecutive months; and (c) the loan to value of the
Project does not exceed seventy-five percent (75%) of the stabilized value
of the Project. For purposes of calculating the DCR, "Rental Income" shall
be based on the lesser of actual occupancy or 93%; however, occupancy must
not be less than 80%. "Expenses" shall be based on the greater of: (a)
actual expenses inclusive of replacement reserves and management fees, or
(b) the sum of (i) operating expenses of $5.60 per net leaseable square
foot, plus (ii) replacement reserves of $0.25 per net leaseable square
foot, plus (iii) management fees equal to the greater of actual or 4% of
effective gross income. "Debt Service" shall be based on the then
outstanding principal balance, plus any unfunded commitment, of the Note, a
25 year amortization, and an interest rate equal to the 10 year Treasury
plus 2.50% per annum.
In addition, Guarantor shall also be liable at all times for, and shall
indemnify, defend and hold Bank harmless, limited as follows, from and
against any and all loss, cost, expense, damage, claim or other obligation
(including without limitation reasonable attorneys' fees and costs of
defense) incurred or suffered by Bank and arising out of or in connection
with the matters listed in subparagraph (a) through (f) immediately below
(collectively, "Bank's Costs and Damages"):
a. misapplication by Borrower of insurance proceeds, condemnation
proceeds, security deposits and rents received by Xxxxxxxx and not applied
in accordance with the Loan Documents;
b. damages to Bank arising from any fraud, malfeasance, or any
material misrepresentation by Borrower or Guarantor related to the Loan
Documents (such damages shall be limited as to Guarantor to Bank's actual
out-of-pocket damages, including the outstanding principal balance of the
Note, together with accrued unpaid interest thereon, and Bank's reasonable
third-party out-of-pocket expenses, including reasonable attorney's fees
and costs);
c. damages arising from the existence of hazardous or toxic
substances upon any real property securing the Note due to the failure of
Borrower to comply with environmental laws, which damages shall be limited
as to Guarantor in an amount not to exceed the sum of: (i) the cost of
remediation in compliance with all federal, state or local environmental
statutes, regulations, rules or ordinances, including any penalties, fines
or assessments in connection therewith; and (ii) any other actual
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out-of-pocket damages incurred by Bank relating to the presence, release or
discharge of toxic or hazardous substances, petroleum or petroleum
products, chemicals, pollutants, or other contaminants on or from the
Project, including reasonable attorneys' fees and costs and any penalties,
provided that Bank shall utilize a law firm from among its usual and
customary law firms, and that such counsel shall be reasonably satisfactory
to Borrower.
d. any Liabilities of which Borrower shall be relieved (whether
voluntary or involuntary) as a result of the Bankruptcy Reform Act of 1978,
as amended, or any other debtor relief law (whether statutory, common law,
case law or otherwise); however, the foregoing shall be limited to the
extent that Guarantor would have been otherwise liable for same under this
Guaranty.
e. all sums reasonably advanced by Bank pursuant to the terms of
the Loan Documents (other than original proceeds of the Note) whether for
the payment of taxes, preservation of collateral, etc. which may be
included in or added to the principal indebtedness of Borrower under the
Note; and
f. all obligations of Borrower to Bank in connection with any ISDA
Master Agreement, Schedule to the Master Agreement, Confirmation Letter and
any other documents executed in connection therewith.
Guarantor hereby acknowledges that Guarantor is solvent, Guarantor is
receiving substantially equivalent value in return for guaranteeing the
obligations of Borrower and Guarantor's guarantees do not violate any
lending restrictions imposed upon such Guarantor by a third party or
governmental authority.
This Guaranty, and each other Loan Document to which Guarantor is a party,
shall only be enforceable against Guarantor and, notwithstanding anything
to the contrary in the Loan Documents, no present or future "Constituent
Partner" (as defined herein) in or "Affiliate" (as defined herein) of
Guarantor, nor any Affiliate of any person that is or becomes a Constituent
Partner in Guarantor, shall be personally liable, directly or indirectly,
under or in connection with this Guaranty or the Loan Documents, or any
document, instrument or certificate securing or otherwise executed in
connection with this Guaranty or the Loan Documents, or any amendments or
modifications to any of the foregoing made at any time or times, heretofore
or hereafter, or in respect of any matter, condition, injury or loss
related to this Guaranty or the Loan Documents or the Project; and the Bank
and each of its successors and assignees waives and does hereby waive any
such personal liability. For purposes of this Guaranty and the Loan
Documents, and any such documents, instruments and certificates, and any
such amendments and modifications, neither the negative capital account of
any Constituent Partner in Guarantor, nor any obligation of any Constituent
Partner in Guarantor to restore a negative capital account or to contribute
capital to Guarantor or to any other Constituent Partner in Guarantor,
shall at any time be deemed to be the property of or an asset of Guarantor
or such other Constituent Partner and neither the Bank nor any of its
successors or assignees shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account or a
Constituent Partner's obligation to restore or contribute. As used in this
paragraph, a "Constituent Partner" in Guarantor shall mean any direct
partner or member in Guarantor and any person that is a partner or member
in any partnership or limited liability company that, directly or
indirectly, through one or more other partnerships or limited liability
companies, is a partner or member in Guarantor. As used herein, "person"
means any individual, partnership, corporation, limited liability company,
trust or other entity.
"Affiliate" of a specified person or entity for the purposes of this
Guaranty and the Loan Documents, means (i) a director, trustee, officer,
employee, agent, partner, member, shareholder, subsidiary, or attorney of
such entity, or (ii) a person or entity which (either directly or
indirectly, through one or more intermediaries) controls, is under common
control with or is controlled by such person or entity, or (iii) any person
or entity that, directly or indirectly, is the beneficial owner of ten
percent (10%) or more of any class of voting securities (or otherwise has a
substantial beneficial interest) in such entity or of which such person or
entity is directly or indirectly the beneficial owner of ten percent (10%)
or more of any class of voting securities (or in which such person or
entity has a substantial beneficial interest), or (iv) any person or entity
that is a director, trustee, officer, employee, agent, partner, member,
shareholder, subsidiary or attorney of any of the foregoing. For purposes
of this definition, control of a specified person or entity (including the
correlative terms "controlled by" and "under common control with") means
the possession,
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directly or indirectly, of the power to direct or cause the direction of
the management and policies of the specified person or entity, whether
through ownership of voting securities, the ability to appoint the majority
of an entity's trustees, directors or persons in a similar capacity, or
otherwise. For purposes of applying this definition, the managing partner
of a general partner or limited partnership will be deemed to be in control
thereof provided such managing partner possesses the power to direct or
cause the direction of the management and policies of the partnership.
2.4. All capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the other Loan Documents.
3. REPRESENTATION AND WARRANTIES. Guarantor represents and warrants to
Bank as follows:
3.1. Organization, Powers. Guarantor (i) is (a) limited partnership
duly organized, validly existing and in good standing under the laws of the
state of its organization, and is authorized to do business in each other
jurisdiction wherein its ownership of property or conduct of business
legally requires such authorization, (ii) has the power and authority to
own its properties and assets and to carry on its business as now being
conducted and as now contemplated; and (iii) has the power and authority to
execute, deliver and perform, and by all necessary action has authorized
the execution, delivery and performance of, all of its obligations under
this Guaranty and any other Loan Document to which it is a party.
3.2. Execution of Guaranty. This Guaranty and each other Loan
Document to which Guarantor is a party have been duly executed and
delivered by Guarantor. Execution, delivery and performance of this
Guaranty and each other Loan Document to which Guarantor is a party will
not: (i) violate any of its organizational documents, provision of law,
order of any court, agency or instrumentality of government, or any
provision of any indenture, agreement or other instrument to which it is a
party or by which it or any of its properties is bound; (ii) result in the
creation or imposition of any lien, charge or encumbrance of any nature,
other than the liens created by the Loan Documents; and (iii) require any
authorization, consent, approval, license, exemption of, or filing or
registration with, any court or governmental authority.
3.3. Obligations of Guarantor. This Guaranty and each other Loan
Document to which Guarantor is a party are the legal, valid and binding
obligations of Guarantor, enforceable against it in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws or equitable principles relating to or
affecting the enforcement of creditors' rights generally. The loans or
credit accommodations made by Bank to Borrower and the assumption by
Guarantor of its obligations hereunder and under any other Loan Document to
which Guarantor is a party will result in material benefits to Guarantor.
This Guaranty was entered into by Guarantor for commercial purposes.
3.4. Litigation. There is no action, suit, or proceeding at law or
in equity or by or before any governmental authority, agency or other
instrumentality now pending or, to the actual knowledge of Guarantor,
threatened against or affecting Guarantor or any of its properties or
rights which, if adversely determined, would materially impair or affect:
(i) the value of any collateral securing the Liabilities; (ii) Guarantor's
right to carry on its business substantially as now conducted (and as now
contemplated); or (iii) its capacity to consummate and perform its
obligations under this Guaranty or any other Loan Document to which
Guarantor is a party.
3.5. No Defaults. Guarantor is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained herein or in any material agreement or instrument ,
which default could adversely affect Guarantor's performance of its
obligations under this Guaranty in any material respect.
3.6. No Untrue Statements. No Loan Document or other document,
certificate or statement furnished to Bank by or on behalf of Guarantor
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein
and therein not
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misleading. Guarantor acknowledges that all such statements,
representations and warranties shall be deemed to have been relied upon by
Bank as an inducement to make the Loan to Borrower.
4. NO LIMITATION OF LIABILITY
4.1. Without incurring responsibility to Guarantor, and without
impairing or releasing the obligations of Guarantor to Bank, and without
reducing the amount due under the terms of this Guaranty, Bank may at any
time and from time to time, without the consent of or notice to Guarantor,
upon any terms or conditions, and in whole or in part:
4.1.1. Change the manner, place or terms of payment of
(including, without limitation, the interest rate and monthly payment
amount), and/or change or extend the time for payment of, or renew or
modify, any of the Liabilities, any security therefor, or any of the Loan
Documents evidencing same, and the Guaranty herein made shall apply to the
Liabilities and the Loan Documents as so changed, extended, renewed or
modified;
4.1.2. Sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order, any property securing
the Liabilities;
4.1.3. Exercise or refrain from exercising any rights
against Borrower or other obligated parties (including Guarantor) or
against any security for the Liabilities;
4.1.4. Settle or compromise any Liabilities, whether in a
proceeding or not, and whether voluntarily or involuntarily, dispose of any
security therefor (with or without consideration), and subordinate the
payment of any of the Liabilities, whether or not due, to the payment of
liabilities owing to creditors of Borrower other than Bank and Guarantor;
4.1.5. Apply any sums it receives, by whomever paid or
however realized, to any of the Liabilities;
4.1.6. Add, release, settle, modify or discharge the
obligation of any maker, endorser, Guarantor, surety, obligor or any other
party who is in any way obligated for any of the Liabilities;
4.1.7. Accept any additional security for the Liabilities;
and/or
4.1.8. Take any other action which might constitute a
defense available to, or a discharge of, Borrower or any other obligated
party (including Guarantor) in respect of the Liabilities.
4.2. The invalidity, irregularity or unenforceability of all or any
part of the Liabilities or any Loan Document, or the impairment or loss of
any security therefor, whether caused by any action or inaction of Bank, or
otherwise, shall not affect, impair or be a defense to Guarantor's
obligations under this Guaranty.
5. LIMITATION ON SUBROGATION. Until such time as the Liabilities are
paid in full. Guarantor waives any present or future right to which
Guarantor is or may become entitled to be subrogated to Bank's rights
against Borrower or to seek contribution, reimbursement, indemnification,
payment or the like, or participation in any claim, right or remedy of Bank
against Borrower or any security which Bank now has or hereafter acquires,
whether or not such claim, right or remedy arises under contract, in
equity, by statute, under common law or otherwise. If, notwithstanding such
waiver, any funds or property shall be paid or transferred to Guarantor on
account of such subrogation, contribution, reimbursement, or
indemnification at any time when all of the Liabilities have not been paid
in full, Guarantor shall hold such funds or property in trust for Bank and
shall forthwith pay over to Bank such funds and/or property to be applied
by Bank to the Liabilities.
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6. COVENANTS
6.1. INTENTIONALLY DELETED.
6.2. INTENTIONALLY DELETED.
6.3. Financial Statements: Compliance Certificate.
6.3.1. Guarantor shall furnish to Bank the following
financial information:
(a) Not later than one hundred twenty (120) days after
the end of each fiscal year, annual financial statements of Guarantor
including, without limitation, statements of financial condition, income
and cash flows, which shall be prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied if and to the
extent Guarantor prepares its financial statements in accordance with GAAP
in the ordinary course of its business, a listing of all contingent
liabilities, notes to financial statements and any other financial
information reasonably requested by Bank.
(b) Not later than thirty (30) days after filing with
the Internal Revenue Service, a true and complete copy of the federal tax
returns of Guarantor.
6.3.2. Guarantor shall furnish to Bank, with each set of
financial statements described herein, a compliance certificate signed by
Guarantor's officer certifying that, to the actual knowledge of such
officer: (i) all representations and warranties of Guarantor set forth in
this Guaranty or any other Loan Document remain true and correct; (ii) none
of the covenants of Guarantor contained in this Guaranty or any other Loan
Document has been breached; and (iii) no event has occurred which, with the
giving of notice or the passage of time, or both, would constitute an Event
of Default under this Guaranty or any other Loan Document. In addition,
Guarantor shall promptly notify Bank of the occurrence of any Event of
Default under this Guaranty or adverse litigation or material adverse
change in its financial condition that would materially affect Guarantor's
performance of its obligations under this Guaranty.
6.4. Subordination of Other Debts. Guarantor agrees: (a) to
subordinate the obligations now or hereafter owed by Borrower to Guarantor
("Subordinated Debt") to any and all obligations of Borrower to Bank now or
hereafter existing while this Guaranty is in effect, provided however that
Guarantor may receive regularly scheduled principal and interest payments
on the Subordinated Debt so long as (i) all sums due and payable by
Borrower to Bank have been paid in full on or prior to such date, and (ii)
no event which is or, with the passage of time or giving of notice or both,
could become an Event of Default shall have occurred and be continuing; (b)
Guarantor will either place a legend indicating such subordination on every
note, ledger page or other document evidencing any part of the Subordinated
Debt or deliver such documents to Bank; and (c) except as permitted by this
paragraph, Guarantor will not request or accept payment of or any security
for any part of the Subordinated Debt, and any proceeds of the Subordinated
Debt paid to Guarantor, through error or otherwise, shall immediately be
forwarded to Bank by Guarantor, properly endorsed to the order of Bank, to
apply to the Liabilities.
7. EVENTS OF DEFAULT.
Each of the following shall constitute a default (each, an "Event of
Default") hereunder:
7.1. Non-payment of any sum required to be paid to Bank under this
Guaranty within five (5) days from when due and payable hereunder;
7.2. A breach by Guarantor of any other term, covenant, condition,
obligation or agreement under this Guaranty in any material respect, and
the continuance of such breach for a period of thirty (30) days after
written notice thereof shall have been given to Guarantor; provided,
however, that in the event that such breach is not capable of being cured
within such thirty (30) day period (despite the diligent,
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good-faith efforts of Guarantor to effect such cure), then provided
Guarantor diligently commences to cure within such thirty (30) day period
and thereafter diligently pursues the cure of such breach, then Guarantor
shall have a reasonable period of time to cure such breach not to exceed
one hundred eighty (180) days after written notice was given to Guarantor
of such breach (it being understood and agreed that, notwithstanding
anything contained under the Loan Documents to the contrary, in no event
shall Bank be obligated to continue to advance any Loan proceeds to
Guarantor under the Loan Agreement until such time as such breach is so
cured).
7.3. Any representation or warranty made by Guarantor in this
Guaranty shall prove to be false, incorrect or misleading in any material
respect as of the date when made and the continuance thereof for a period
of thirty (30) days after written notice thereof shall have been given
Guarantor; provided, however, that in the event that such breach is not
capable of being cured within such thirty (30) day period (despite the
diligent, good-faith efforts of Guarantor to effect such cure), then
provided Guarantor diligently commences to cure within such thirty (30) day
period and thereafter diligently pursues the cure of such breach, then
Guarantor shall have a reasonable period of time to cure such breach not to
exceed one hundred eighty (180) days after written notice was given to
Guarantor of such breach (it being understood and agreed that,
notwithstanding anything contained under the Loan Documents to the
contrary, in no event shall Bank be obligated to continue to advance any
Loan proceeds to Guarantor under the Loan Agreement until such time as such
breach is so cured).
8. REMEDIES
8.1. Upon an Event of Default, all liabilities of Guarantor
hereunder shall become immediately due and payable without demand or notice
and, in addition to any other remedies provided by law, Bank may:
8.1.1. Enforce the obligations of Guarantor under this
Guaranty.
8.1.2. Perform any covenant or agreement of Guarantor in
default hereunder (but without obligation to do so) and in that regard pay
such money as may be required or as Bank may reasonably deem expedient. Any
costs, expenses or fees, including reasonable attorneys' fees and costs,
incurred by Bank in connection with the foregoing shall be included in the
Liabilities guaranteed hereby, and shall be due and payable on demand,
together with interest at the Default Rate (as defined and described in the
Note), such interest to be calculated from the date of such advance to the
date of repayment thereof. Any such action by Bank shall not be deemed to
be a waiver or release of Guarantor hereunder and shall be without
prejudice to any other right or remedy of Bank.
8.2. Settlement of any claim by Bank against Borrower, whether in
any proceeding or not, and whether voluntary or involuntary, shall not
reduce the amount due under the terms of this Guaranty, except to the
extent of the amount actually paid by Borrower or any other obligated party
and legally retained by Bank in connection with the settlement (unless
otherwise provided for herein) or therein.
9. MISCELLANEOUS.
9.1. Disclosure of Financial Information. Bank is hereby authorized
to disclose any financial or other information about Guarantor to any
regulatory body or agency having jurisdiction over Bank or to any present,
future or prospective participant or successor in interest in the Loan.
The information provided may include, without limitation, amounts, terms,
balances, payment history, return item history and any financial or other
information about Guarantor.
9.2. Remedies Cumulative. Subject to Section 2.3 of this Guaranty,
the rights and remedies of Bank, as provided herein and in any other Loan
Document, shall be cumulative and concurrent, may be pursued separately,
successively or together, may be exercised as often as occasion therefor
shall arise, and shall be in addition to any other rights or remedies
conferred upon Bank at law or in equity. The failure, at any one or more
times, of Bank to exercise any such right or remedy shall in no event be
7
construed as a waiver or release thereof. Bank shall have the right to
take any action it deems appropriate without the necessity of resorting to
any collateral securing this Guaranty.
9.3. Integration. This Guaranty and the other Loan Documents
constitute the sole agreement of the parties with respect to the
transaction contemplated hereby and supersede all oral negotiations and
prior writings with respect thereto.
9.4. Attorneys' Fees and Expenses. If Bank retains the services of
counsel by reason of an Event of Default hereunder or under any of the
other Loan Documents, or for examination of matters subject to Bank's
approval under the Loan Documents, all costs of suit and all reasonable
attorneys' fees and such other reasonable expenses so incurred by Bank
shall forthwith, on demand, become due and payable and shall be secured
hereby.
9.5. No Implied Waiver. Bank shall not be deemed to have modified
or waived any of its rights or remedies hereunder unless such modification
or waiver is in writing and signed by Bank, and then only to the extent
specifically set forth therein. A waiver in one event shall not be
construed as continuing or as a waiver of or bar to such right or remedy on
a subsequent event.
9.6. Waiver. Guarantor waives notice of acceptance of this Guaranty
and notice of the Liabilities and waives notice of default, non-payment,
partial payment, presentment, demand, protest, notice of protest or
dishonor, and all other notices to which Guarantor might otherwise be
entitled or which might be required by law to be given by Bank. Guarantor
waives the right to marshalling of Xxxxxxxx's assets or any stay of
execution and the benefit of all exemption laws, to the extent permitted by
law, and any other protection granted by law to Guarantors, now or
hereafter in effect with respect to any action or proceeding brought by
Bank against it. Guarantor irrevocably waives all claims of waiver,
release, surrender, alteration or compromise and the right to assert
against Bank any defenses, set-offs, counterclaims, or claims that
Guarantor may have at any time against Borrower or any other party liable
to Bank.
9.7. No Third Party Beneficiary. Except as otherwise provided
herein, Guarantor and Bank do not intend the benefits of this Guaranty to
inure to any third party and no third party (including Borrower) shall have
any status, right or entitlement under this Guaranty.
9.8. Partial Invalidity. The invalidity or unenforceability of any
one or more provisions of this Guaranty shall not render any other
provision invalid or unenforceable. In lieu of any invalid or
unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable
provision as may be possible.
9.9. Binding Effect. The covenants, conditions, waivers, releases
and agreements contained in this Guaranty shall bind, and the benefits
thereof shall inure to, the parties hereto and their respective heirs,
executors, administrators, successors and assigns; provided, however, that
this Guaranty cannot be assigned by Guarantor without the prior written
consent of Bank, and any such assignment or attempted assignment by
Guarantor shall be void and of no effect with respect to the Bank.
9.10. Modifications. This Guaranty may not be supplemented,
extended, modified or terminated except by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
9.11. Sales or Participations. Bank may from time to time sell or
assign, in whole or in part, or grant participations in the Loan, the Note
and/or the obligations evidenced thereby with Guarantor's consent, which
will not be unreasonably withheld (if Guarantor fails to respond to Bank's
request for approval within five (5) business days from receipt of notice,
Guarantor shall be deemed to have approved the sale or participation). The
holder of any such sale, assignment or participation, if the applicable
agreement between Bank and such holder so provides, shall be: (a) entitled
to all of the rights, obligations and benefits of Bank; and (b) deemed,
subject to the limitations of this Guaranty, to hold and may exercise the
rights of setoff or banker's lien with respect to any and all obligations
of such holder to Guarantor, in
8
each case as fully as though Guarantor were directly indebted to such
holder. Bank shall give notice to Guarantor of such sale, assignment or
participation; if possible within five (5) business days of the completion
thereof.
9.12. Jurisdiction. Guarantor irrevocably appoints each and every
owner, partner and/or officer of Guarantor as its attorneys upon whom may
be served, by certified mail at the address set forth above, any notice,
process or pleading in any action or proceeding against it arising out of
or in connection with this Guaranty or any other Loan Document; and
Guarantor hereby consents that any action or proceeding against it be
commenced and maintained in any court within the State of Florida by
service of process on any such owner, partner and/or officer; and Guarantor
agrees that the courts of such State shall have jurisdiction with respect
to the subject matter hereof and the person of Guarantor and all collateral
securing the obligations of Guarantor. Guarantor agrees not to assert any
defense to any action or proceeding initiated by Bank in Broward County
based upon improper venue or inconvenient forum.
9.13. Notices. All notices and communications under this Guaranty
shall be in writing and shall be given by either (a) hand-delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid), to the addresses listed in this Guaranty. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
9.14. Governing Law. This Guaranty shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
9.15. Joint and Several Liability. If Guarantor consists of more
than one person or entity, the word "Guarantor" shall mean each of them and
their liability shall be joint and several. The liability of Guarantor
shall also be joint and several with the liability of any other Guarantor
under any other guaranty.
9.16. Continuing Enforcement. If, after receipt of any payment of
all or any part of the Liabilities, Bank is compelled or agrees, for
settlement purposes, to surrender such payment to any person or entity for
any reason (including, without limitation, a determination that such
payment is void or voidable as a preference or fraudulent conveyance, an
impermissible setoff, or a diversion of trust funds), then this Guaranty
shall continue in full force and effect or be reinstated, as the case may
be, and Guarantor shall be liable for, and shall indemnify, defend and hold
harmless Bank with respect to the full amount so surrendered. The
provisions of this Section shall survive the termination of this Guaranty
and shall remain effective notwithstanding the payment of the Liabilities,
the cancellation of the Note, this Guaranty or any other Loan Document, the
release of any security interest, lien or encumbrance securing the
Liabilities or any other action which Bank may have taken in reliance upon
its receipt of such payment. Any cancellation, release or other such action
shall be deemed to have been conditioned upon any payment of the
Liabilities having become final and irrevocable.
9.17. Arbitration. Upon demand of either Guarantor or Bank, whether
made before or after institution of any Judicial proceeding, any claim or
controversy arising out of or relating to the Loan Documents between
parties hereto (a "Dispute") shall be resolved by binding arbitration
conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. The arbitration
shall be conducted by three arbitrators with Guarantor and Bank each
selecting one arbitrator and those two arbitrators mutually agreeing on the
selection of the third arbitrator. Disputes may include, without
limitation, tort claims, counterclaims, a dispute as to whether a matter is
subject to arbitration, claims brought as class actions, or claims arising
from documents executed in the future. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to
swap agreements. Special Rules. All arbitration hearings shall be conducted
in the city named in the address of Bank first stated above. A hearing
shall begin within 90 days of demand for arbitration and all hearings shall
conclude within 120 days of demand for arbitration. These time limitations
may not be extended unless a party shows cause for extension and
9
then for no more than a total of 60 days. The expedited procedures set
forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to
claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel of the
AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein. Preservation and Limitation of Remedies.
Notwithstanding the preceding binding arbitration provisions, Guarantor and
Bank agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. Among
other things and not by way of limitation, the parties shall have the right
to proceed in any court of proper jurisdiction or by self-help to exercise
or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; and (ii) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property; and (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing
a bankruptcy proceeding. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute.
9.18. Waiver of Jury Trial. GUARANTOR AND BANK AGREE THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER
CLAIM OR COUNTERCLAIM, BROUGHT BY BANK OR GUARANTOR ON OR WITH RESPECT TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES
WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A
JURY. BANK AND GUARANTOR EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN
ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, GUARANTOR WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING,
ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. GUARANTOR ACKNOWLEDGES AND AGREES
THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY AND
THAT BANK WOULD NOT EXTEND CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN
THIS SECTION WERE NOT A PART OF THIS GUARANTY.
9.19. Loan Agreement. Guarantor unconditionally guarantees to Bank as
limited to the extent provided in Section 2.3 hereof, the timely
performance of all obligations of Borrower under all documents executed by
Xxxxxxxx in connection with the "Construction Period" as defined in the
Loan Agreement including, without limiting the generality of the foregoing,
that:
(1) the Project will be constructed lien free substantially
in accordance with the Loan Agreement and with the "Plans and
Specifications" (as defined in the Loan Agreement); and
(2) the Project will be completed and ready for occupancy,
including delivery of any certificates, licenses, and permits required by
law or the Loan Agreement, on or before any dates required in the Loan
Agreement.
Subject to the limitations on Liabilities set forth in Section 2.3
hereof, in the event Borrower does not timely perform such obligations in
any respect whatsoever, Guarantor, without the necessity of any notice from
Bank to Guarantor, agrees to (i) assume all responsibility for the
completion of the Project and, at Guarantor's own cost and expense, to
cause the Improvements to be fully completed substantially in accordance
with the Plans and Specifications and in accordance with the Loan
Agreement; (ii) pay all bills, costs, and expenses in connection with the
construction and completion of the Project; (iii) indemnify and hold Bank
harmless from any and all loss, cost, liability or expense Bank may suffer
by reason of Borrower failing to timely perform such obligations, and (iv)
indemnify Bank for any costs, liabilities and claims asserted by
contractors, subcontractors, materialmen and suppliers in connection with
construction of the Improvements. If, after the occurrence of an Event of
Default under the Loan Agreement by Xxxxxxxx, Guarantor has not caused
construction to progress as required by the Loan Agreement, Bank may, at
its option, after first having given notice to Guarantor at the address set
forth above in the manner
10
prescribed above for giving notice, complete the Project either before or
after commencement of foreclosure proceedings or before or after any other
remedy of Bank against Borrower or Guarantor, with such changes or
modifications in the Plans and Specifications which Bank reasonably deems
necessary and expend such sums as Bank reasonably deems necessary and
proper in order to so complete the Project, and Guarantor hereby waives any
right to contest any such expenditures, subject to the limitations on
Liabilities set forth in Section 2.3 hereof.
IN WITNESS WHEREOF, Xxxxxxxxx, intending to be legally bound, has
duly executed and delivered this Guaranty Agreement as of the day and year
first above written.
WITNESS: GUARANTOR:
/s/ Xxxxxx X. Xxxxx ARVIDA/JMB PARTNERS, L.P.,
------------------------------- a Delaware limited partnership
Signature
By: ARVIDA/JMB MANAGERS, INC.,
Printed Name: Xxxxxx X. Xxxxx a Delaware corporation,
its sole general partner
/s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
------------------------------- --------------------
Signature Xxxx Xxxxxxx,
Vice President
Printed Name: Xxxxx X. Xxxxx
Date: May 19, 2000
[ SEAL ]
11
AFFIDAVIT AND INDEMNITY
OF XXXXXXXXX AND GUARANTOR
REGARDING HAZARDOUS OR TOXIC MATERIALS
---------------------------------------
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
BEFORE ME, the undersigned authority, personally appeared XXXXXXX X.
XXXXXXXXX, the Vice President of ARVIDA/JMB Managers, Inc., a Delaware
corporation, a general partner of ARVIDA/JMB Partners, a Florida general
partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware limited
liability company ("Mortgagor"), and Xxxx Xxxxxxx, the Vice President of
ARVIDA/JMB Managers, Inc., a Delaware corporation, a general partner of
ARVIDA/JMB Partners, L.P., a Delaware limited partnership (the
"Guarantor"), who, being first duly sworn by me under oath, depose and
state and warrant and represent and covenant on behalf of Xxxxxxxxx and
Guarantor as follows (hereinafter collectively referred to as "Affiants"):
1. The following definitions shall apply for the purposes of this
Affidavit and Indemnity:
A. "Hazardous or Toxic Materials" include (i) "hazardous
waste" under the Federal Resource Conservation and Recovery Act and similar
state laws; (ii) "hazardous substances" under the Federal Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") and
similar state laws, and (iii) "regulated substances" under Subchapter IX of
the Federal Solid Waste Disposal Act and similar state laws. Examples of
Hazardous or Toxic Materials include (but are not limited to) those
"hazardous wastes" "hazardous substances" and "regulated substances,"
whether solid, semi-solid, liquid or gaseous that are toxic, ignitable,
corrosive, carcinogenic, or similarly dangerous to human, plant or animal
health and well being, including radon, asbestos, paints, solvents,
chemicals, petroleum products, batteries, transformers, and other discarded
manmade materials with hazardous or toxic characteristics. Notwithstanding
the foregoing, "Hazardous or Toxic Materials" shall not include (i)
reasonable quantities of petroleum or chemical products or other materials
or substances, in whatever form, kept until used in proper storage
containers, that are used in construction on the Mortgaged Property or in
the ordinary course of business of Mortgagor or any of its tenants, or (ii)
the waste products from such products, materials or substances.
B. The "Mortgaged Property" includes the land as more fully
described on EXHIBIT "A" attached hereto and by reference made part hereof,
including all buildings and other improvements now or hereafter located
thereon, and any real property hereinafter encumbered by the lien of the
Mortgage described below.
2. Mortgagor is the fee simple title holder of the Mortgaged
Property.
3. Mortgagor is borrowing the sum of TWENTY MILLION DOLLARS
($20,000,000) (the "Loan") from FIRST UNION NATIONAL BANK ("Mortgagee")
evidenced by a Promissory Note ("Note") and secured by a Mortgage and
Security Agreement ("Mortgage"). Said Note and Mortgage and other documents
as defined in the Note are hereafter called the "Loan Documents". As a
condition to making the Loan, the Mortgagee requires Mortgagor and
Guarantor (as so limited to Guarantor in accordance with Section 8 hereof)
to provide certain indemnities concerning Hazardous or Toxic Materials, as
hereinafter set forth. Mortgagor and Guarantor acknowledge Mortgagee's
reliance hereon.
1
4. Xxxxxxxxx has undertaken such inquiry into the previous
ownership and uses of the Mortgaged Property as is consistent with good
commercial practice in an effort to minimize liability with respect to any
Hazardous or Toxic Materials.
5. To the actual knowledge of Affiants, there are no Hazardous or
Toxic Materials present on, in or under the Mortgaged Property in violation
of applicable "Environmental Laws" (hereinafter defined) and the Mortgaged
Property and the activities conducted thereon do not pose any significant
hazard to human health or the environment or violate in any material
respect any applicable federal, state or local laws, ordinances, rules,
regulations or requirements pertaining to Hazardous or Toxic Materials
("Environmental Laws").
6. The Mortgaged Property and any improvements now or hereafter
located thereon are not presently being used, and will not be used for such
time as any indebtedness is owed to Mortgagee, for the generation, release,
treatment, discharge, emission, handling, storage, transportation, or
disposal of Hazardous or Toxic Materials in violation of any Environmental
Laws in any material respect and, to the actual knowledge of Affiants, have
not been so used in the past.
7. Mortgagor and Guarantor hereby indemnify and agree to defend
and save and hold Mortgagee and its directors, officers, employees, agents,
successors and assigns harmless from and against any and all losses,
liabilities (including, without limitation, strict liability and common law
liability), obligations, damages, injuries (including, without limitation,
injuries to the environment), defenses, charges, penalties, interest,
expenses, fees (including attorneys' fees at all administrative and
judicial hearing, trial and appellate levels), costs (including, without
limitation, costs of any settlement incurred with the prior written consent
of Mortgagor and Guarantor), judgments, administrative or judicial
proceedings and orders, remedial action requirements, enforcement actions,
claims and demands of any and every kind whatsoever (collectively, the
"Claims") paid, incurred or suffered by, or asserted against, Mortgagee by
any person or entity or governmental agency or body for, with respect to,
related to, arising out of, or as a direct or indirect result of, in whole
or in part, the violation by Mortgagor of any Environmental Laws applicable
to the Mortgaged Property or any activity conducted by Mortgagor thereon,
or the past, present and future use, generation, release, treatment,
discharge, emission, escape, seepage, leakage, spillage, handling, storage,
transportation, disposal, clean-up or presence at, on or under the
Mortgaged Property or to the soil, air or to surface or ground water
thereat, of any Hazardous or Toxic Materials as a result of Xxxxxxxxx's
conduct, provided, however, that in no event shall the foregoing be deemed
to include any consequential damages. All sums paid and costs incurred by
Mortgagee with respect to the foregoing matters shall bear interest at the
default rate of interest provided in the Note and shall be secured by the
lien of the Mortgage, and the lien of the Mortgage shall also further
secure this indemnity and any liabilities hereunder. Nevertheless, this
indemnification shall survive the full payment and performance of the Note
and the Mortgage, the release of the Mortgaged Property and satisfaction of
the Mortgage, and it shall inure to the benefit of any transferee of title
to the Mortgaged Property through foreclosure of the Mortgage or through
deed in lieu of foreclosure.
8. Notwithstanding anything to the contrary contained in this
Affidavit and Indemnity, the indemnity, agreements, warranties,
representations and undertakings hereunder by Xxxxxxxxx and Guarantor shall
not apply to the extent that the Claims arise from conduct or activity that
occurs after the transfer of control of the Mortgaged Property to
Mortgagee, its designee or a receiver. In consideration of this indemnity
Mortgagee covenants that it will avail itself of the protection afforded
secured banks under CERCLA and any implementing regulations thereunder and
under any other applicable Environmental Laws and the regulations
thereunder. Further, Mortgagee and Guarantor agree and acknowledge that,
notwithstanding anything that may be contained herein to the contrary,
Guarantor's maximum liability under this indemnity shall not exceed the sum
of (i) the cost of remediation in compliance in all material respects with
all Environmental Laws, including any penalties, fines or assessments in
connection therewith, and (ii) any other actual out-of-pocket damages
incurred by
2
Mortgagee relating to the presence, release or discharge of Hazardous or
Toxic Materials on the Mortgaged Property within the scope of this
indemnity, including reasonable attorney's fees and costs and any
penalties, provided that the Mortgagee shall utilize a law firm from among
its usual and customary law firms and that such counsel shall be reasonably
satisfactory to the Mortgagor.
9. In addition to any environmental audit which may have been
required as a precedent to the closing of the Loan, upon reasonable cause
set forth in writing to Mortgagor at its request, Mortgagee, at its sole
option, may obtain, at Mortgagor's expense, an environmental audit prepared
by an independent engineer or other qualified environmental consultant of
the Mortgagee's choice, which evaluates (i) whether any Hazardous or Toxic
Materials are present in the soil or surface or ground water at the site of
the Mortgaged Property or in the soil or surface or ground water adjacent
to such site in violation of applicable Environmental Laws in any material
respects; (ii) whether Hazardous or Toxic Materials are now or have been
previously used, generated, released, treated, discharged, emitted,
escaped, seeped, leaked, spilled, handled, stored, transported or disposed
of at the site of the Mortgaged Property in violation of applicable
Environmental Laws in any material respects; and (iii) whether activities
presently being conducted at the site of the Mortgaged Property are in
compliance in all material respects with all applicable Environmental Laws.
The consultant shall prepare a written report detailing its findings and
conclusions and shall promptly deliver a copy thereof to Mortgagor upon its
request.
The Mortgagor agrees that in the event Mortgagee requests such an
audit or an audit pursuant to Subparagraph 10 below, and either of said
audits indicates such past or present use, generation, release, treatment,
discharge, emission, escape, seepage, leakage, spillage, handling, storage,
transportation, disposal or presence, Mortgagee may, in its sole
discretion, require that Mortgagor take reasonable steps necessary to
further define the nature of the Hazardous or Toxic Materials, any risks
related to or resulting therefrom, and possible remedial measures; and
thereafter may also require that all material violations of law with
respect to Hazardous or Toxic Materials be corrected by Mortgagor in all
material respects and that Mortgagor obtain all necessary environmental
permits and approvals associated therewith. Until all such requirements are
satisfied in Mortgagee's reasonable judgment, Mortgagee shall have the
absolute right not to fund any undisbursed proceeds of the Loan.
10. If Mortgagor receives any written notice of (i) the happening
of any material event involving the use, generation, release, treatment,
discharge, emission, escape, seepage, leakage, spillage, handling, storage,
transportation, disposal or clean-up of any material amount of Hazardous or
Toxic Materials on or at the site of the Mortgaged Property or adjacent
thereto, or in connection with Mortgagor's operations thereon or (ii) any
complaint, order, citation or notice with regard to air emissions, water
discharges, or any other environmental, health or safety matter affecting
Mortgagor or the Mortgaged Property in any material respects (an
"Environmental Complaint") from any person or entity or governmental agency
or body (including, without limitation, the EPA), then Mortgagor shall
immediately notify Mortgagee orally and in writing of said notice.
Mortgagee shall have the absolute right not to fund any undisbursed
proceeds of the Loan unless and until the Environmental Complaint is
dismissed or otherwise resolved to Mortgagee's reasonable satisfaction or
until Mortgagor establishes reserves in a reasonably sufficient amount to
pay the costs of clean up or remediation thereof and commences to
diligently pursue the same.
11. Mortgagee shall have the right, upon reasonable cause set forth
in writing to Mortgagor at its request, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental
Complaint is then outstanding) perform (at Mortgagor's expense) an
environmental audit and, if deemed necessary by Mortgagee, an environmental
risk assessment, each of which must be reasonably satisfactory to
Mortgagee, of the Mortgaged Property, hazardous waste management practices
and/or hazardous waste disposal sites used by Mortgagor, if any, and of
compliance with all permits, consent orders, licenses, approvals,
permissions or any of the like required for the operation of the Mortgaged
Property or any business, process or activity thereon. Said audit and/or
risk assessment must
3
be by an environmental consultant reasonably satisfactory to Mortgagee.
Should Mortgagor fail to commence said environmental audit or risk
assessment within thirty (30) days of the Mortgagee's written request,
Mortgagee shall have the right but not the obligation to retain an
environmental consultant to perform said environmental audit or risk
assessment. All reasonable costs and expenses incurred by Mortgagee in the
exercise of such rights shall be secured by the Mortgage and shall be
payable by Mortgagor upon demand.
12. Any material breach of any warranty, representation, covenant
or agreement contained herein shall, if not cured within thirty (30) days
from receipt of written notice from Mortgagee thereof, also be an Event of
Default under the Mortgage and shall entitle Mortgagee to exercise any and
all remedies provided in the Mortgage or otherwise permitted by law;
provided, however, that in the event that such breach is not capable of
being cured within such thirty (30) day period (despite the diligent,
good-faith efforts of Mortgagor to effect such cure), then provided
Mortgagor diligently commences to cure within such thirty (30) day period
and thereafter diligently pursues the cure of such breach, then Mortgagor
shall have a reasonable period of time to cure such breach not to exceed
one hundred eighty (180) days after written notice was given to Mortgagor
of such breach (it being understood and agreed that, notwithstanding
anything contained under the Loan Documents to the contrary: (a) in no
event shall Mortgagee be obligated to continue to advance any Loan proceeds
to Mortgagor under the Loan Agreement until such time as such breach is so
cured; and (b) Mortgagee shall not be required to provide any written
notice to Mortgagor nor shall Mortgagor have any grace period in the event
Mortgagor or Guarantor voluntarily files for relief under the Federal
Bankruptcy Code or any similar federal or state statute). All notices
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served as provided in the Mortgage. This Indemnity may be executed
in one or more counterparts, each of which shall be deemed an original.
Said counterparts shall constitute but one and the same instrument and
shall be binding upon each of the undersigned individually as fully and
completely as if all had signed but one instrument so that the joint and
several liability of each of the undersigned hereunder shall be unaffected
by the failure of any of the undersigned to execute any or all of said
counterparts. Any one or more of Mortgagor or Guarantor, or any other party
liable upon or in respect of this Indemnity or the Loan, may be released
without affecting the liability of any party not so released. This
Indemnity shall be binding upon and inure to the benefit of Xxxxxxxxx,
Guarantor and Mortgagee and their respective heirs, personal
representatives, successors and permitted assigns under the Loan Documents.
Notwithstanding anything contained to the contrary contained herein, the
obligations contained herein as pertaining to Borrower and Guarantor,
(collectively "ARVIDA") shall only be enforceable against ARVIDA and,
notwithstanding anything to the contrary herein, no present or future
"Constituent Partner" (as defined herein) in or "Affiliate" (as defined
herein) of ARVIDA, nor any Affiliate of any person that is or becomes a
Constituent Partner in ARVIDA, shall be personally liable, directly or
indirectly, under or in connection with this indemnity or any document,
instrument or certificate securing or otherwise executed in connection
herewith, or any amendments or modifications to any of the foregoing made
at any time or times, heretofore or hereafter, or in respect of any matter,
condition, injury or loss giving rise to any obligation to indemnify
Mortgagee hereunder; and the Mortgagee and each of its successors and
assignees waives and does hereby waive any such personal liability. For
purposes of this indemnity and/or the Loan Documents, and any such
documents, instruments and certificates, and any such amendments and
modifications, neither the negative capital account of any Constituent
Partner in ARVIDA, nor any obligation of any Constituent Partner in ARVIDA
to restore a negative capital account or to contribute capital to ARVIDA or
to any other Constituent Partner in ARVIDA, shall at any time be deemed to
be the property of or an asset of ARVIDA or such other Constituent Partner
and neither the Mortgagee nor any of its successors or assignees shall have
any right to collect, enforce or proceed against or with respect to any
such negative capital account or a Constituent Partner's obligation to
restore or contribute. As used in this Paragraph, a "Constituent Partner"
in ARVIDA shall mean any direct partner or member in ARVIDA and any person
that is a partner or member in any partnership or limited liability company
that, directly or indirectly, through one or more other partnerships or
limited liability companies, is a partner or member in
4
ARVIDA. As used herein, "person" means any individual, partnership,
corporation, limited liability company, trust or other entity.
"Affiliate" of a specified person or entity for the purposes of this
indemnity means (i) a director, trustee, officer, employee, agent, partner,
member, shareholder, subsidiary, or attorney of such entity, or (ii) a
person or entity which (either directly or indirectly, through one or more
intermediaries) controls, is under common control with or is controlled by
such person or entity, or (iii) any person or entity that, directly or
indirectly, is the beneficial owner of ten percent (10%) or more of any
class of voting securities (or otherwise has a substantial beneficial
interest) in such entity or of which such person or entity is directly or
indirectly the beneficial owner of ten percent (10%) or more of any class
of voting securities (or in which such person or entity has a substantial
beneficial interest), or (iv) any person or entity that is a director,
trustee, officer, employee, agent, partner, member, shareholder, subsidiary
or attorney of any of the foregoing. For purposes of this definition,
control of a specified person or entity (including the correlative terms
"controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of the specified person or entity, whether
through ownership of voting securities, the ability to appoint the majority
of an entity's trustees, directors or persons in a similar capacity, or
otherwise. For purposes of applying this definition, the managing partner
of a general partner or limited partnership will be deemed to be in control
thereof provided such managing partner possesses the power to direct or
cause the direction of the management and policies of the partnership.
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
its sole member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
GUARANTOR:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx, Vice President
5
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of the limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
_______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXX XXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a Delaware
corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida general
partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware limited
liability company, freely and voluntarily under authority duly vested in
him/her by said corporation on behalf of the limited liability company, and
that the seal affixed thereto is the true corporate seal of said
corporation. He/she is personally known to me or who has produced
_______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
GENERAL SUBORDINATION AND ASSIGNMENT
(CONTINUING AND UNCONDITIONAL)
------------------------------------
To induce FIRST UNION NATIONAL BANK, a national banking association
("Lender") to extend or to continue to extend credit from time to time to
WESTON TOWN CENTER, LLC, a Delaware limited liability company ("Borrower"),
ARVIDA/JMB PARTNERS, a Florida general partnership, ARVIDA/JMB PARTNERS,
L.P., a Delaware limited partnership, and ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, the undersigned creditor of Borrower (singularly and
collectively, "Creditor"), and the undersigned Xxxxxxxx jointly and
severally agree with Xxxxxx as follows:
1. Definitions.
1.1. "Indebtedness" - "Indebtedness" means all obligations of
any kind owing by the Borrower to the Lender, whether now existing or
hereafter incurred, direct or indirect, arising from loans, guaranties,
overdrafts, endorsements or otherwise, whether principal or interest,
whether related or unrelated to the purpose of the original extension of
credit, whether of the same or a different class as the primary obligation,
and whether the obligations are from time to time reduced and thereafter
increased or entirely extinguished and new obligations thereafter incurred,
including, without limitation, any sums advanced and any expenses or
obligations incurred by the Lender pursuant to any agreement concerning,
evidencing or securing obligations of the Borrower to the Lender and any
other liabilities of the Borrower to the Lender, including, without
limitation, attorneys' fees and paralegals' fees, including sales or
service tax due and payable upon the attorneys' fees and paralegals' fees,
whether incurred in collection efforts, trials or appeals, and all
extensions, renewals and substitutions therefor. In the event any part of
the Indebtedness is paid by Xxxxxxxx and because of any bankruptcy or other
laws relating to creditor rights, Lender repays any amounts to the Borrower
or to any trustee, receiver or otherwise, then the amount so repaid shall
again become part of the Indebtedness.
1.2. "Junior Claims" - "Junior Claims" means all obligations
of any kind owing by the Borrower to the Creditor, whether now existing or
hereafter incurred, direct or indirect, arising from loans, guaranties,
endorsements or otherwise and all extensions, renewals and substitutions
therefor and any liabilities of the Borrower to the Creditor arising from
any source whatsoever.
2. Subordination. The Creditor hereby unconditionally and
continuously subordinates (the "Subordination") the payment of both the
principal and the interest of the Junior Claims to the prior payment of the
Indebtedness and Creditor warrants and represents that Creditor is the sole
owner of the Junior Claims and has not transferred any interest therein or
granted any party a lien upon or security interest therein, other than
pursuant to the terms of that certain Credit Agreement dated July 31, 1997,
by and among, among others, Xxxxxxx Bank, N.A. and Xxxxxx/JMB Partners,
L.P., as amended to date and related loan documents.
1
3. Nonpayment of Junior Claims to Creditor. Except for payments
in the ordinary course of business during such time as the Borrower is in
good standing under all documents evidencing and securing the Indebtedness,
Xxxxxxxx agrees that it will not make any payments on any Junior Claims to
Creditor (although it may make payments thereon to Lender) and Creditor
agrees not to accept any payment on nor make any effort to collect (except
on behalf of and with the consent of Lender) any payments on any Junior
Claim. In the event any payment is offered on any Junior Claim other than
as permitted in the preceding sentence, Creditor will direct that it be
paid to Lender and Creditor agrees that, should any such payments on
(whether by voluntary action or from a liquidation or bankruptcy
distribution or otherwise) or security for any Junior Claim be received by
Creditor, Creditor will receive and hold the same as trustee for Lender and
will immediately deliver the same to Lender in the same form as received by
Creditor with such endorsements as are necessary thereto in favor of
Lender.
4. Exculpation. Neither Lender nor any of its employees nor
agents shall be accountable with respect to the validity or enforceability
of any of the Junior Claims nor for taking any action with respect to any
collateral for the Junior Claims nor for taking any collection action with
respect to the Junior Claims other than for Xxxxxx's gross negligence or
willful malfeasance. The Creditor understands that it is Creditor's
responsibility to continue to protect the value of the Junior Claims and
all collateral therefor in accordance with the terms thereof
notwithstanding this Subordination.
5. Waiver. No delay or omission by Xxxxxx in exercising any of
its rights hereunder or failure to exercise those rights shall operate as a
waiver of that or any other of Xxxxxx's rights hereunder.
6. Successors and Assigns. This Subordination shall inure to the
benefit of the Lender, its successors and assigns, and shall be binding
upon both Borrower and Creditor and their respective heirs, legal
representatives, successors and assigns. This Subordination shall not
benefit any other creditors of Borrower.
7. Term of Agreement. This Subordination is a continuing agreement
and remains in full force and effect until the full repayment of the
Indebtedness. The obligations and agreements of Borrower and Creditor
hereunder remain in full force and effect, irrespective of the genuineness,
validity, regularity or enforceability of any instrument evidencing,
relating to or securing the Indebtedness, and Creditor hereby consents
that, from time to time, Lender may, without notice to Creditor, and
without affecting any liability of Creditor hereunder (i) exchange,
release, sell (by foreclosure or otherwise), apply or otherwise deal with
any collateral for repayment of the Indebtedness at the election of Lender;
(ii) extend, renew or accelerate the Indebtedness in whole or in part; or
(iii) waive or fail to enforce any of its rights under any instruments
evidencing, relating to or securing the Indebtedness.
8. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of Florida and venue
shall be Broward County, Florida.
9. Effectiveness Without Borrower's Signature. If this agreement
is signed only by Creditor and not by Xxxxxxxx, this Agreement shall
nevertheless be fully effective as against Creditor in accordance with the
terms hereof even though Borrower is not a party hereto.
2
10. Limitation of Liability. Section 14 of that certain Promissory
Note in the original principal balance of $20,000,000 dated of even date
herewith made by Borrower to Lender is incorporated by this reference as if
set forth herein in its entirety.
11. WAIVER OF JURY TRIAL. XXXXXX AND EACH CREDITOR AND XXXXXXXX
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING,
BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS AND THIRD-PARTY CLAIMS)
ARISING IN CONNECTION WITH THIS GENERAL SUBORDINATION AND ASSIGNMENT, THE
OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREIN, AND ALL AND
ANY COMBINATIONS OF THE FOREGOING. EACH CREDITOR AND BORROWER HEREBY
CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE LENDER NOR THE LENDER'S
COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. EACH CREDITOR AND BORROWER ACKNOWLEDGE THAT THE
LENDER HAS BEEN INDUCED TO ENTER INTO THIS LOAN, INCLUDING THIS GENERAL
SUBORDINATION AND ASSIGNMENT, BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
IN WITNESS WHEREOF, the undersigned have executed this agreement this
19th day of May 2000.
BORROWER:
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partner,
as its sole member
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx, Vice President
3
ARVIDA/JMB PARTNERS, a Florida general
partnership
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, the general partner of ARVIDA/JMB PARTNERS, L.P., a
Delaware limited partnership, the sole member of WESTON TOWN CENTER, LLC, a
Delaware limited liability company, freely and voluntarily under authority
duly vested in him/her by said corporation on behalf of the limited
liability company. He/she is personally known to me or who has produced
___________as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
4
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXX XXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a Delaware
corporation, as general partner of ARVIDA/JMB PARTNERS, L.P., a Delaware
limited partnership, freely and voluntarily under authority duly vested in
him/her by said corporation on behalf of the limited partnership, and that
the seal affixed thereto is the true corporate seal of said corporation.
He/she is personally known to me or who has produced ______________ as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, as general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, freely and voluntarily under authority duly vested in
him/her by said corporation on behalf of the limited partnership, and that
the seal affixed thereto is the true corporate seal of said corporation.
He/she is personally known to me or who has produced __________________ as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
5
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, freely and voluntarily under authority duly vested in
him/her by said corporation on behalf of the limited partnership, and that
the seal affixed thereto is the true corporate seal of said corporation.
He/she is personally known to me or who has produced _______________ as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
6
BORROWER'S REPRESENTATIONS, WARRANTIES AND AFFIDAVIT
-----------------------------------------------------
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
WHEREAS, FIRST UNION NATIONAL BANK ("Lender"), has agreed to make a
TWENTY MILLION DOLLAR ($20,000,000) construction/mini-perm loan ("Loan") to
WESTON TOWN CENTER, LLC, a Delaware limited liability company (the
"Borrower"), evidenced by a Promissory Note in the amount of the Loan
("Note") of even date hereof secured by a Mortgage and Security Agreement
of even date hereof (the "Mortgage") on that certain real property more
particularly described therein (" Property")(the Note, Mortgage and all
other documents executed in connection therewith are hereinafter
collectively referred to as the "Loan Documents").
WHEREAS, as an inducement to make the Loan and disburse Loan proceeds
pursuant to a Loan Agreement of even date hereof, Lender requires certain
representations, warranties and agreements from Borrower as of the closing
of the Loan ("Closing") and throughout the term of the Loan.
WHEREAS, as a further inducement to make the Loan and disburse Loan
proceeds, Xxxxxx requires that Borrower acknowledge as of Closing the
receipt of certain disclosures and notices from Lender concerning the Loan.
NOW, THEREFORE, in consideration of Xxxxxx's agreement to make the
Loan, Xxxxxxx X. Xxxxxxxxx, as Vice President of Arvida/JMB Managers, Inc.,
a Delaware corporation ("General Partner"), a general partner of Arvida/JMB
Partners, a Florida general partnership ("Member"), the sole member of
Xxxxxxxx, being duly sworn, hereby makes on behalf of Borrower the
following representations and warranties to Lender, its successors and
assigns, and acknowledges on behalf of Xxxxxxxx the receipt of the
following disclosures and notices from Xxxxxx:
1. That the undersigned has knowledge of the business affairs of
Xxxxxxxx.
2. That, to the actual knowledge of the undersigned, there are no
claims, actions, suits or proceedings pending or threatened against or
affecting Borrower before any court or any governmental department or
agency which may result in any material adverse change in the financial
condition of Borrower. Borrower is not subject to any bankruptcy,
creditor's reorganization or insolvency proceeding and no such proceeding
is pending or contemplated.
3. That Borrower has good and marketable title to the Property.
That the Property is not subject to any mortgage, pledge, easement,
restriction or other encumbrance or lien of any kind (whether or not
recorded), except for the Mortgage, the lien of current taxes which are not
yet due and payable, and those matters shown as exceptions from coverage in
the Mortgagee Title Insurance Commitment covering the Mortgage. That the
Property conforms to all restrictive covenants affecting the Property.
1
4. That, to the actual knowledge of the undersigned, neither the
execution nor delivery of the Loan Documents on behalf of Borrower shall
conflict with or result in a breach of the terms, conditions or provisions
of or constitute a default under any agreement or other instrument to which
Borrower is a party or by which Borrower is bound, and that Borrower is not
a party to any contract or agreement which materially adversely affects the
value of the Property, except as follows: None.
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
5. That Borrower possesses or shall possess in the ordinary course
of business all governmental permits, approvals and licenses necessary for
the construction and development of any improvements to be constructed with
Loan proceeds, without substantial known conflicts with the rights of
others.
6. To the actual knowledge of the undersigned, that there are no
present violations (nor does the undersigned have reason to believe any
violations are forthcoming) in any material respect of any requirements of
any applicable governmental laws, codes, ordinances, rules or regulations
or restrictive covenants affecting the Property and that the Property shall
be in compliance in all material respects with all such requirements and
covenants throughout the term of the Loan.
7. That all laborers and materialmen furnishing improvements to
the Property ordered by Xxxxxxxx have been paid in full through the date
hereof and that the undersigned has no actual knowledge of any liens
against the Property or of any person, firm or corporation which is
entitled to any lien or claim of lien against the Property for work done or
materials furnished within the past ninety (90) days.
8. Except as provided in any leases of portions of the Property as
disclosed to Lender, Borrower is in possession of the Property, and there
are no leases, options, contracts, claims or interests of any kind thereon
by any other party except as disclosed in that certain Commonwealth Land
Title Insurance Commitment No. C864-794400.
9. That
(a) Borrower is not a foreign entity for purposes of United
States Income taxation;
(b) Xxxxxxxx's United States tax identification number is
00-0000000;
(c) The address of Borrower in Florida is 0000 Xxxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000 and in Illinois is 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
(d) The undersigned, on behalf of the Borrower, understands
and acknowledges that this Affidavit may be disclosed to the Internal
Revenue Service.
10. That there has been no mortgage broker involved in obtaining
the Loan.
2
11. That the Loan is an extension of credit primarily for a
business, commercial or agricultural purpose. That the proceeds of the Loan
will be used to construct a retail shopping center with second floor office
space containing approximately 147,881 net leaseable square feet (the
"Improvements") to be anchored by Publix Supermarket to be located on a
parcel of approximately 23.80 plus/minus acres at the northwest corner of
Arvida Parkway and Bonaventure Boulevard. City of Weston, Broward County,
Florida. The undersigned acknowledges on behalf of Borrower that Xxxxxx has
relied on this Affidavit in making the Loan and did not require the
execution of a Regulation Z Disclosure Statement as would be required under
federal law if the proceeds of the Loan were to be used for personal
purposes.
12. That as of the date hereof all insurance required in connection
with the Loan as required by Xxxxxx is in full force and effect with
current premiums paid and that all such insurance shall remain in full
force and effect throughout the term of the Loan.
13. That all representations and warranties made by Borrower in the
Loan Documents or in any other documents furnished to Lender by Borrower
are true and correct as of the date hereof in all material respects and are
hereby incorporated herein by reference as though set out here in full.
That in the event Borrower becomes aware that any such representations and
warranties made to Lender are no longer true and correct in any material
respect at any time during the term of the Loan, Borrower shall have the
affirmative obligation to advise Lender in writing of such fact.
IN ADDITION TO AFOREMENTIONED REPRESENTATIONS AND
WARRANTIES, XXXXXXXX XXXXXX AGREES TO BE BOUND BY THE
FOLLOWING TERMS AND ACKNOWLEDGES RECEIPT OF THE
FOLLOWING NOTICES:
14. Pursuant to the Rules of the Insurance Commissioner and
Treasurer of the State of Florida, notice is hereby given by Xxxxxx and
RMSS&R to the Borrower that a mortgagee title insurance policy is to be
issued to Lender, and that such policy does not provide title insurance
protection to the Borrower as the owner of the Property that is being
mortgaged. The Borrower acknowledges receipt of this notice and understands
that such mortgagee title insurance policy to be issued to Lender does not
provide title insurance protection to the Borrower.
15. That Xxxxxxxx agrees if requested by Xxxxxx or Xxxxx, XxXxxxxx,
Xxxxx, Xxxxxxxx & Xxxxxxx, P.A. ("RMSS&R"), as Xxxxxx's Counsel, that
Xxxxxxxx and Arvida/JMB Partners, L.P., a Delaware limited partnership (the
"Guarantor") will fully cooperate and execute and/or re-execute any
document or documents solely due to clerical errors, scrivener's errors or
relating to additional non-material matters due to receipt and review of
miscellaneous required items post closing on any or all of the closing
documentation for the Loan if deemed necessary, using reasonable judgment
of Lender and RMSS&R.
16. Borrower acknowledges that RMSS&R has represented Lender in
connection with the Loan. RMSS&R has (a) prepared certain documents
relating to the Loan, including, among other documents, the Note and
Mortgage; (b) examined such documents as RMSS&R deemed necessary
3
in connection with this transaction; and (c) supervised the closing of the
Loan. RMSS&R's fee for providing these services is stated on the Loan
Closing Statement. Xxxxxxxx acknowledges and agrees that these legal
services have been performed on behalf of Xxxxxx and NOT on behalf of
Xxxxxxxx, and RMSS&R's reasonable fees are being reimbursed to Lender by
Xxxxxxxx.
17. The Insurance Laws of Florida provide that Lender may not
require Borrower to obtain insurance from any particular agent or company
to protect the Property. Subject to the rules adopted by the Insurance
Commissioner, Xxxxxxxx has the right to place insurance on the Property
with insurance agents or companies of his choice. Lender may, however,
prescribe reasonable requirements regarding the type of insurance company
providing coverage, the adequacy of such coverage and the financial
structure and stability of the insurance agency or company providing such
coverage. Xxxxxxxx is informed of the foregoing statement and/or the rules
of the Insurance Commissioner in regard thereto, and understands its rights
and privileges and those of the Lender concerning the placement of
insurance on the Property.
(a) Borrower has selected Zurich Insurance Company and
Illinois National Insurance Company to provide liability insurance on the
Property.
(b) Borrower has selected Commonwealth Land Title Insurance
Company to provide title insurance in favor of Lender.
(c) Borrower has selected (See Exhibit A attached hereto) to
provide casualty insurance on the Property.
18. Xxxxxxxx acknowledges that this Affidavit is given as a
material inducement to Lender to lend the Loan to Borrower and as a
material inducement to Commonwealth Land Title Insurance Company to issue a
Mortgagee Title Insurance Policy in connection therewith.
19. If any of the representations and warranties made or
incorporated herein are not true and correct in all material respects at
any time during the term of the Loan within thirty (30) days after written
notice thereof shall have been given to Borrower, Lender shall have the
right to declare a material default by Borrower under the Loan and, in
addition to all other rights of the Lender, Lender shall be relieved of its
obligation to disburse any of the Loan proceeds until such representations
and warranties are cured and corrected in all material respects by Borrower
at Borrower's expense; provided, however, that in the event that such
breach is not capable of being cured within such thirty (30) day period
(despite the diligent, good-faith efforts of Borrower to effect such cure),
then provided Borrower diligently commences to cure within such thirty (30)
day period and thereafter diligently pursues the cure of such breach, then
Borrower shall have a reasonable period of time to cure such breach not to
exceed one hundred eighty (180) days after written notice was given to
Borrower of such breach (it being understood and agreed that,
notwithstanding anything contained under the Loan Documents to the
contrary, in no event shall Lender be obligated to continue to advance any
Loan proceeds to Borrower under the Loan Agreement until such time as such
breach is so cured).
4
20. Xxxxxxxx has examined this Affidavit and it is true. correct
and complete in all material respects. Xxxxxxxx agrees to indemnify and
hold Xxxxxx harmless from and against any out-of-pocket loss, damage or
claim arising from the breach of any of the terms and provisions hereof and
arising from any of Borrower's representations and warranties being untrue
and incorrect at any time during the term of the Loan. The foregoing
indemnification and hold harmless shall survive the Closing of the Loan and
shall include all out-of-pocket costs and expenses incurred by Xxxxxx,
including, without limitation, reasonable attorneys' fees and paralegals'
fees, through all trial and appellate levels and post-judgment proceedings.
21. Section 14 of the Note is incorporated herein by this reference
as if set forth herein in its entirety.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
sworn, executed and sealed this 19th day of May, 2000.
BORROWER:
WESTON TOWN CENTER LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
its sole member
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
5
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of me limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Notary Public, State of Illinois
My Commission Expires 01/14/01
6
ASSIGNMENT OF CONSTRUCTION CONTRACTS AND PLANS
THIS ASSIGNMENT OF CONSTRUCTION CONTRACTS AND PLANS ("Assignment"),
made as of the __ day of______, 2000, by WESTON TOWN CENTER, LLC, a
Delaware limited liability company ("Borrower"), to FIRST UNION NATIONAL
BANK ("Lender").
WITNESSETH:
WHEREAS, Xxxxxxxx has executed a Construction Loan Agreement dated of
even date herewith to the Lender ("Loan Agreement") providing for a loan
("Loan") to finance the construction of a retail shopping center with
second floor office space containing approximately 147,881 net leaseable
square feet to be anchored by Publix Supermarket, with related amenities
("Improvements"), on a certain tract of land legally described on Exhibit
"A" attached hereto and made a part hereof ("Premises"); and
WHEREAS, in order to induce Xxxxxx to enter into the Loan Agreement
and as additional security for the performance of Xxxxxxxx's obligations
thereunder and under any notes, mortgages and other documents executed in
connection with the Loan and all renewals, extensions and modifications
thereof (the Loan Agreement, this Assignment and all such notes, mortgages
and other documents being herein referred to collectively as the "Loan
Documents"), Xxxxxxxx has agreed to make this Assignment; and
WHEREAS, pursuant to those certain contracts more particularly
described on Exhibit "B" attached hereto (collectively, the "Contract")
between Borrower and those general contractors referenced therein
(collectively, the "General Contractor"), the General Contractor has
prepared, or caused to be prepared, certain plans and specifications for
the construction of the Improvements (which plans and specifications,
together with all amendments thereto and modifications or supplements
thereof, and all working drawings, models and samples related thereto, are
hereinafter collectively called the "Plans");
NOW, THEREFORE, Xxxxxxxx, in consideration of the premises and
intending to be legally bound hereby, agrees as follows:
1. Borrower hereby transfers and assigns to Lender and hereby
grants to Lender a security interest under the Uniform Commercial Code in
and to the entire interest of Borrower in, to and under the Contract and
all other construction contracts relating to the construction of the
Improvements on the Premises and any and all subsequent contracts and
renewals and modifications thereof between Borrower and General Contractor
or any other contractor (the General Contractor and all other contractors
being hereinafter referred to collectively as the "Contractors") relating
to the Improvements or any other improvements being or to be erected on the
Premises (the Contract and all such other contracts, and all renewals and
modifications thereof, being hereinafter referred to collectively as the
"Contracts"), together with all the Borrower's right, title and interest in
and to, and arising from, the Plans.
2. Anything herein contained to the contrary notwithstanding, (a)
Borrower shall remain liable under the Contracts to perform all of
Borrower's obligations thereunder in accordance with and pursuant to the
terms and provisions thereof, (b) any obligation of Borrower under the
Contracts may be performed by Lender or its nominee or other assignee
without releasing Borrower therefrom (or from its other obligations under
the Contracts) and without resulting in any assumption of said
1
obligation (or of such other obligations) by Lender, and (c) Lender shall
have no obligation or liability under the Contracts by reason of or arising
out of this Assignment, nor shall Lender be required or obligated in any
manner to perform or fulfill any obligations of Borrower under or pursuant
to the Contracts, including, without limitation, Borrower's obligation to
pay the Contractors.
3. Xxxxxxxx agrees to perform and observe all of its covenants and
obligations under the Contracts in all material respects. Borrower shall
not take or omit to take any action, the taking or omission of which might
result in an alteration or impairment in any material respect of (a) the
Contracts (except for Change Orders permitted pursuant to the Loan
Agreement), (b) the Plans, (c) this Assignment, or (d) any of the rights
created by the Contracts or this Assignment. Borrower will not, except upon
the prior written consent of Lender which consent shall not be unreasonably
withheld or delayed, and upon the reasonable terms and conditions, if any,
specified in any such consent, enter into any agreement amending or
supplementing in any material respect the Contracts or the Plans (except
for Change Orders permitted pursuant to the Loan Agreement), or settle or
compromise any material claim against any Contractor arising under any of
the Contracts.
4. Borrower makes the following representations and warranties to
the Lender: (a) Borrower has not assigned or pledged, and hereby covenants
that it will not assign or pledge, so long as this Assignment shall remain
in effect, any of its right, title or interest under, in or to the
Contracts or the Plans to anyone other than Lender; (b) Borrower's right,
title and interest under, in or to the Contracts and the Plans is not now
subject to any liens, encumbrances or security interests; (c) all fees and
other sums required to be paid by Borrower as of the date hereof under the
terms of the Contracts have been paid; (d) the Contracts have not been
modified, amended or supplemented and are, in all respects, in full force
and effect and enforceable in accordance with their respective terms; and
(e) no default exists under any of the Contracts as of the date of this
Assignment.
5. Lender shall not exercise any of its rights under this
Paragraph 5 until the occurrence of an "Event of Default" under the Loan
Agreement, or under any other Loan Documents, but upon the occurrence of
any such "Event of Default" (after the expiration of any applicable grace
period, if any):
A. Borrower hereby appoints Lender, its successors and
assigns, Xxxxxxxx's true and lawful attorney-in-fact, such power being
coupled with an interest, irrevocably with full power in the name of and on
behalf of Borrower or otherwise: (a) to make, execute, complete and deliver
to any one or more of the Contractors under any of the Contracts all such
documents as Lender shall reasonably consider necessary or appropriate to
complete construction of the Improvements; (b) to make all payments to any
one or more of the Contractors as Lender shall reasonably consider
necessary or appropriate under any of the Contracts; (c) to file any claims
or take any actions or institute any proceedings which Lender may
reasonably deem to be necessary or advisable in connection with any of the
Contracts; and (d) generally, to do, execute and perform any other act,
matter or thing whatsoever that, in the reasonable opinion of Lender, ought
to be done, executed and performed in connection with any of the Contracts,
as fully as Xxxxxxxx could do personally in such situation; and
B. At Lender's option, Lender may exercise in its own name
any and all rights of Borrower under the Contracts; and
C. At Lender's option, Xxxxxx may assume the obligations of
Borrower under the Contracts; and
2
X. Xxxxxx may utilize the Plans in such manner and to such
extent as Lender may desire to assist Xxxxxx in causing the construction of
the Improvements to be completed.
6. In the event Lender exercises any of the rights granted Lender
herein or in any of the other Loan Documents with respect to the Contracts
or the Plans, any sums expended by Lender in connection with the exercise
of such rights shall be added to the indebtedness under the Loan Agreement
and secured by the mortgage encumbering the Premises executed by Borrower
in favor of Lender as security for the Loan, and by all other security
given for the payment of such indebtedness and shall bear interest at the
rate set forth in the Note executed by Xxxxxxxx in favor of Lender to
evidence the Loan that is applicable to a period when a default exists
thereunder, until paid or reimbursed to Lender.
7. The rights and remedies of Lender hereunder are cumulative and
not exclusive of any rights or remedies which it may have under any of the
other Loan Documents, at law or in equity.
8. This Assignment shall be construed and enforced in all respects
in accordance with the laws of the State of Florida.
9. Wherever contained herein and when the context so requires, the
singular shall refer to the plural and the plural to the singular. The
gender used shall be deemed to include each other gender, as appropriate.
10. This Assignment shall be binding upon Borrower and its
successors and permitted assigns, and shall inure to the benefit of Lender
and its successors and assigns.
11. Section 14 of the Note (as defined in the Loan Agreement) is
incorporated herein by this reference as if set forth herein in its
entirety.
12. XXXXXX AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS,
CROSS-CLAIMS AND THIRD-PARTY CLAIMS) ARISING IN CONNECTION WITH EACH OF
THIS ASSIGNMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
THEREIN, AND ALL AND ANY COMBINATIONS OF THE FOREGOING. BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE LENDER NOR THE LENDER'S
COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. XXXXXXXX ACKNOWLEDGES THAT THE LENDER HAS BEEN
INDUCED TO ENTER INTO THIS LOAN, INCLUDING THIS ASSIGNMENT, BY, INTER ALIA,
THE PROVISIONS OF THIS PARAGRAPH.
3
IN WITNESS WHEREOF, Xxxxxxxx has caused this Assignment to be
executed the day and year first above written.
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
its sole member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware Corporation,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
STATE OF ILLINOIS)
) ss:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of the limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
_______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
ASSIGNMENT OF ARCHITECT'S AGREEMENT
AND PLANS AND SPECIFICATIONS
-----------------------------------
For TEN DOLLARS ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, as additional
security for the performance of the obligations incurred and to be incurred
pursuant to that certain Construction Loan Agreement of even date herewith
(hereafter called "Loan Agreement") by and between WESTON TOWN CENTER, LLC,
a Delaware limited liability company (hereafter called "Borrower"), and
FIRST UNION NATIONAL BANK (hereafter called "Lender"), as the same may
hereafter be amended, the Borrower hereby grants a security interest in,
and to the extent assignable, assigns and transfers to the Lender, its
successors and assigns, all of the right, title and interest of the
Borrower in, to and under (a) those certain architectural drawings, plans
and specifications listed on Schedule I hereto relating to the development
of a retail shopping center with second floor office space containing
approximately 147,881 net leaseable square feet to be anchored by Publix
Supermarket (the "Improvements"), all of which were prepared by Xxxxxx &
Associates, Inc., Architect (hereafter called "Architect"), and any future
drawings, plans and specifications prepared by the Architect and all
amendments, modifications and supplements to any of the foregoing (all of
the foregoing being hereafter called the "Final Plans"), and (b) that
certain Agreement between Borrower and Architect dated February 17, 1999, a
true, correct and complete copy of which is attached hereto as Exhibit "A"
(hereafter called "Agreement"). In furtherance of the foregoing, the
Borrower hereby agrees that this assignment is made upon the following
terms and conditions:
1. Subject to the terms of this Agreement, the Final Plans may be
used by the Lender, its successors, assigns or designees, without charge,
for any purpose relating to the project contemplated by the Loan Agreement
(hereafter called "Project"), including, without limitation, the completion
of the construction, inspection of construction, maintenance, protection
and improvement of the Project upon the occurrence of an Event of Default,
as the case may be, by the Borrower under the Loan Agreement or under any
documents or instruments delivered pursuant thereto or in connection
therewith (hereafter called "Loan Documents").
2. The Borrower represents and warrants that the Borrower's
interest in the Agreement is not subject to any claim, set-off, lien or
encumbrance of any kind or nature and that the Agreement is in full force
and effect and has not been amended or modified in any way.
3. Neither this assignment nor any action or actions on the part
of the Lender shall constitute an assumption of any of the obligations of
the Borrower by the Lender under the Agreement, and the Borrower shall
continue to be liable for all obligations thereunder. The Borrower agrees
to protect, defend, indemnify and hold the Lender harmless from and against
any and all loss, cost, liability or expense (including, but not limited
to, attorneys' fees and expenses and paralegals' fees and expenses,
including any sales or service tax due and payable upon the attorneys' and
paralegals' expenses) resulting from any failure of the Borrower to perform
and observe, at the time and in the manner therein provided, each of the
covenants, agreements and obligations of the Borrower contained in the
Agreement.
1
4. The Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of the Borrower or
otherwise, such action as the Lender may at any time or from time to time
determine to be necessary to cure any default of the Borrower under the
Agreement and to protect the rights of the Borrower or of the Lender as the
assignee of the Borrower thereunder. The Lender shall incur no liability on
account of any action taken by it or on its behalf in good faith pursuant
to the foregoing sentence or otherwise hereunder, whether or not the same
shall prove to be improper, inadequate or invalid, in whole or in part, and
the Borrower agrees to protect, defend, indemnify and hold the Lender
harmless from and against any and all loss, cost, liability or expense
(including, but not limited to, attorneys' fees and paralegals' fees,
including any sales or service tax due and payable upon the attorneys' fees
and paralegals' fees, and expenses) in connection with any such action or
actions, provided that such action or actions do not constitute gross
negligence or wanton or willful misconduct.
5. The Borrower hereby covenants and agrees:
(a) To faithfully abide by, perform and discharge in all
material respects each and every obligation, covenant and agreement of the
Borrower contained in the Agreement; to give prompt notice to the Lender of
any notice of default on the part of the Borrower with respect to the
obligations, covenants or agreements of the Borrower contained in the
Agreement, together with an accurate and complete copy of such notice; and,
at the sole cost and expense of the Borrower, to enforce or secure the
performance of each and every material obligation, covenant, condition and
agreement on the part of the Architect to be kept or performed under the
Agreement; and
(b) Unless otherwise provided in the Loan Documents, without
the prior written consent of the Lender which consent shall not be
unreasonably withheld or delayed: (i) modify, amend or change in any
material respect the Final Plans or any portion thereof; (ii) modify, amend
or change in any material respect the Agreement; (iii) tender or accept a
surrender or cancellation of the Agreement; or (iv) further assign or
create any further encumbrance or hypothecation of the Borrower's interest
under the Agreement.
6. Upon the payment in full of the obligation of the Borrower to
the Lender arising under the Loan Agreement and the Loan Documents, this
assignment shall become null and void. So long as the Borrower is not in
default in the due, prompt and complete observance and performance of each
and every covenant, agreement and obligation of the Borrower contained in
the Loan Agreement or the Loan Documents, the Borrower may, except as
therein restricted or provided otherwise, continue to receive and exercise
all of the rights, benefits and privileges under the Agreement.
7. Section 14 of the Note (as defined in the Loan Agreement) is
incorporated herein by this reference as if set forth herein in its
entirety.
8. XXXXXX AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS,
CROSS-CLAIMS AND THIRD-PARTY CLAIMS) ARISING IN CONNECTION WITH EACH
2
OF THIS ASSIGNMENT OF ARCHITECT'S AGREEMENT AND PLANS AND SPECIFICATIONS,
THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREIN, AND ALL
AND ANY COMBINATIONS OF THE FOREGOING. BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE LENDER NOR THE LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. XXXXXXXX ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO
ENTER INTO THIS LOAN, INCLUDING THIS ASSIGNMENT OF ARCHITECT'S AGREEMENT,
PLANS AND SPECIFICATIONS, BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
DATED, this 19th day of May, 2000.
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
its sole member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
3
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of the limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
_______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Xxxxxxx X. Xxxxxxx
Notary Public, State of Illinois
My Commission Expires 01/14/01
ASSIGNMENT OF ENGINEER'S AGREEMENT
AND PLANS AND SPECIFICATIONS
----------------------------------
For TEN DOLLARS ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, as additional
security for the performance of the obligations incurred and to be incurred
pursuant to that certain Construction Loan Agreement of even date herewith
(hereafter called "Loan Agreement") by and between WESTON TOWN CENTER, LLC,
a Delaware limited liability company (hereafter called "Borrower"), and
FIRST UNION NATIONAL BANK (hereafter called "Lender"), as the same may
hereafter be amended, the Borrower hereby grants a security interest in,
and to the extent assignable, assigns and transfers to the Lender, its
successors and assigns, all of the right, title and interest of the
Borrower in, to and under (a) those certain engineering drawings, plans and
specifications listed on Schedule I hereto relating to the development of a
retail shopping center with second floor office space, containing
approximately 147, net leaseable square feet to be anchored by Publix
Supermarket, (the "Improvements"), all of which were prepared by Xxxxxx
Xxxx & Associates, Inc., Engineer (hereafter called "Engineer"), and any
future drawings, plans and specifications prepared by the Engineer and all
amendments, modifications and supplements to any of the foregoing (all of
the foregoing being hereafter called the "Final Plans"), and (b) that
certain Agreement between Borrower and Engineer dated ________, 2000, a
true, correct and complete copy of which is attached hereto as Exhibit "A"
(hereafter called "Agreement"). In furtherance of the foregoing, the
Borrower hereby agrees that this assignment is made upon the following
terms and conditions:
1. The Final Plans may be used by the Lender, its successors,
assigns or designees, without charge, for any purpose relating to the
project contemplated by the Loan Agreement (hereafter called "Project"),
including, without limitation, the completion of the construction,
inspection of construction, maintenance, protection and improvement of the
Project upon the occurrence of an Event of Default, as the case may be, by
the Borrower under the Loan Agreement or under any documents or instruments
delivered pursuant thereto or in connection therewith (hereafter called
"Loan Documents").
2. The Borrower represents and warrants that the Borrower's
interest in the Agreement is not subject to any claim, set-off, lien or
encumbrance of any kind or nature and that the Agreement is in full force
and effect and has not been amended or modified in any way.
3. Neither this assignment nor any action or actions on the part
of the Lender shall constitute an assumption of any of the obligations of
the Borrower by the Lender under the Agreement, and the Borrower shall
continue to be liable for all obligations thereunder. The Borrower agrees
to protect, defend, indemnify and hold the Lender harmless from and against
any and all loss, cost, liability or expense (including, but not limited
to, attorneys' fees and expenses and paralegals' fees and expenses,
including any sales or service tax due and payable upon the attorneys' and
paralegals' expenses) resulting from any failure of the Borrower to perform
and observe, at the time and in the manner therein provided, each of the
covenants, agreements and obligations of the Borrower contained in the
Agreement.
1
4. The Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of the Borrower or
otherwise, such action as the Lender may at any time or from time to time
determine to be necessary to cure any default of the Borrower under the
Agreement and to protect the rights of the Borrower or of the Lender as the
assignee of the Borrower thereunder. The Lender shall incur no liability on
account of any action taken by it or on its behalf in good faith pursuant
to the foregoing sentence or otherwise hereunder, whether or not the same
shall prove to be improper, inadequate or invalid, in whole or in part, and
the Borrower agrees to protect, defend, indemnify and hold the Lender
harmless from and against any and all loss, cost, liability or expense
(including, but not limited to, attorneys' fees and paralegals' fees,
including any sales or service tax due and payable upon the attorneys' fees
and paralegals' fees, and expenses) in connection with any such action or
actions provided that such action or actions do not constitute gross
negligence or wanton or willful misconduct.
5. The Borrower hereby covenants and agrees:
(a) To faithfully abide by, perform and discharge in all
material respects each and every obligation, covenant and agreement of the
Borrower contained in the Agreement; to give prompt notice to the Lender of
any notice of default on the part of the Borrower with respect to the
obligations, covenants or agreements of the Borrower contained in the
Agreement, together with an accurate and complete copy of such notice; and,
at the sole cost and expense of the Borrower, to enforce or secure the
performance of each and every material obligation, covenant, condition and
agreement on the part of the Engineer to be kept or performed under the
Agreement; and
(b) Unless otherwise provided in the Loan Documents, without
the prior written consent of the Lender, which consent shall not be
unreasonably withheld or delayed: (i) modify, amend or change in any
material respect the Final Plans or any portion thereof; (ii) modify, amend
or change in any material respect the Agreement; (iii) tender or accept a
surrender or cancellation of the Agreement; or (iv) further assign or
create any further encumbrance or hypothecation of the Borrower's interest
under the Agreement.
6. Upon the payment in full of the obligation of the Borrower to
the Lender arising under the Loan Agreement and the Loan Documents, this
assignment shall become null and void. So long as the Borrower is not in
default in the due, prompt and complete observance and performance of each
and every covenant, agreement and obligation of the Borrower contained in
the Loan Agreement or the Loan Documents, the Borrower may, except as
therein restricted or provided otherwise, continue to receive and exercise
all of the rights, benefits and privileges under the Agreement.
7. Section 14 of the Note (as defined in the Loan Agreement) is
incorporated herein by this reference as if set forth herein in its
entirety.
8. XXXXXX AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS,
CROSS-CLAIMS AND THIRD-PARTY CLAIMS) ARISING IN CONNECTION WITH EACH
2
OF THIS ASSIGNMENT OF ENGINEER'S AGREEMENT AND PLANS AND SPECIFICATIONS,
THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREIN, AND ALL
AND ANY COMBINATIONS OF THE FOREGOING. BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE LENDER NOR THE LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE. THAT THE LENDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. XXXXXXXX ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO
ENTER INTO THIS LOAN, INCLUDING THIS ASSIGNMENT OF ENGINEER'S AGREEMENT,
PLANS AND SPECIFICATIONS, BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
DATED, this 19th day of May, 2000.
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
its sole member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
3
STATE OF ILLINOIS)
) SS:
COUNTY OF COOK )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
XXXXXXX X. XXXXXXXXX, the Vice President of ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, a general partner of ARVIDA/JMB PARTNERS, a Florida
general partnership, the sole member of WESTON TOWN CENTER, LLC, a Delaware
limited liability company, freely and voluntarily under authority duly
vested in him/her by said corporation on behalf of the limited liability
company, and that the seal affixed thereto is the true corporate seal of
said corporation. He/she is personally known to me or who has produced
_______________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of May, 2000.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
------------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires: [ notary public seal ]
Notary Public, State of Illinois
My Commission Expires 01/14/01
4
AGREEMENT OF GENERAL CONTRACTOR
-------------------------------
AGREEMENT OF GENERAL CONTRACTOR (the "Agreement"), dated __________, 2000
by PRECAST WALL SYSTEMS, INC., having an office at 1858 N.W. 22nd Court,
Pompano Beach, FL 33069 ("Contractor"), in favor of FIRST UNION NATIONAL
BANK ("Bank"), a national banking association, having an office at 000 Xxxx
Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"); and
B. Contractor and Owner have entered into a Contract dated
February 29, 2000 (the "Contract") providing for the construction of the
Project on the Property; and
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Contractor enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement. As the loan will inure to the benefit of
Contractor, Contractor hereby agrees to be bound by and adhere to the
disbursement terms of the Loan Agreement to be executed by Borrower at the
closing of the Loan as contained in Section 5 of the Loan Agreement
attached hereto as Exhibit "A" and made a part hereof, ("Loan Agreement")
and Contractor hereby acknowledges payment in full for all services
rendered through the date of closing of the Loan and waives all lien claims
therefor and Contractor hereby subordinates its lien on the Property to the
lien of the Bank's mortgage encumbering the Property and all other security
instruments executed by Xxxxxxxx in favor of Bank.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Contractor represents and warrants that: (i) no work was commenced
nor materials delivered to the Property prior to February 21, 2000; (ii)
all fees and other sums required to be paid as of the date hereof under the
terms of the Contract have been paid (iii) the Contract is in full force
and effect, is valid and enforceable, and has not been altered, modified or
amended; (iv) neither Contractor nor, to the best of Contractor's
knowledge, Owner are in default under any of the terms, covenants or
conditions of the Contract; (v) Contractor is not prohibited under any law,
agreement, judgment or permit from performing any of its obligations under
the Contract; (vi) no action has been brought or, to the best of
Contractor's knowledge, is threatened which in any manner is likely to
interfere with the performance of any of Contractor's obligations under the
Contract; and (vii) Contractor has full power and authority to execute and
deliver this Agreement.
1
2. AGREEMENT TO PERFORM.
Contractor consents to the assignment of the Contract by Owner to
Bank pursuant to the Loan Agreement. Contractor agrees, at the request of
Bank and without regard to any prior default of Owner under the Contract,
to continue to perform under the terms of the Contract if Bank should
notify Contractor in writing that Bank has elected to undertake to complete
or cause the completion of the Project, provided that Contractor shall be
paid in accordance with the Contract for any work, labor and material
rendered on Bank's behalf following such request. Contractor further
specifically agrees that, in the event Bank forecloses or takes over the
Project and the Property, Contractor agrees to complete all work in
accordance with the Contract for Bank as long as Bank pays Contractor for
such work in accordance with the Contract, but Bank shall not be liable for
amounts already owed to Contractor for work previously performed and drawn
for under the Construction Loan Agreement,
3. MODIFICATION AND AMENDMENTS.
Contractor agrees that, without the prior written consent of Bank:
(i) no modifications to the Contract shall be made; (ii) no changes in the
Bank approved plans, specifications, working drawings or cost breakdowns
for the Project shall be made; (iii) no changes in the nature, amounts or
payees of any disbursement request submitted to Bank shall be made; (iv)
the Contract will not be terminated; and (v) no release of the Contractor
by Owner shall be operative or effective as to Bank.
4. CONTRACTOR'S COVENANTS.
Contractor agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) to pay and discharge all liens or
claims for labor and materials furnished in connection with the
construction of the Project pursuant to the Contract; (iv) to fully
complete the Project in a good and workmanlike manner on or before the
completion date specified in the Contract, subject to any permitted delays
as set forth in the Contract; (v) that in the event any of the Loan
proceeds are disbursed under the Loan Agreement directly to Contractor,
Contractor will receive such advances as a trust fund for the work to be
performed under the Contract and Contractor will apply such sums first to
such payment before using any part of such advances for any other purpose;
(vi) that Bank shall have no liability to Contractor either under the
Contract, this Agreement, or otherwise, for any act or omission occurring
prior to such time as Bank elects in writing to assume the future
obligations of Owner under the Contract; and (vii) to furnish to Bank, upon
request, complete, current and correct lists of all subcontractors and
material suppliers of the Project.
Contractor further covenants and agrees that the Project will be
completed in accordance with the plans and specifications for the Project
approved by Bank ("Plans and Specifications"), the list of which is
attached to the Contract, and that in addition to all affidavits, partial
releases and other documents and papers required to be furnished by
Contractor under the Contract and the Florida Mechanics' Lien Law,
Contractor, at the time of final payment, will furnish a full and complete
release of lien of Contractor and of every person who performed work, labor
or services or supplied materials covered by the Contract to the Property.
Requisitions for draws will be submitted on an AIA form as designated by
the Contract, accompanied by such certifications and other evidence of
payment of obligations as Bank may require. Contractor will not stop work
under the Contract for any reason without giving Bank at least seven (7)
days prior written notice.
Contractor agrees that each subcontract executed between Contractor
and a subcontractor performing work on the Project shall include a
provision whereby the subcontractor agrees that (i) if
2
Contractor defaults under the subcontract, the subcontractor will, before
exercising any remedy, give Borrower and Bank written notice specifying the
default and the steps necessary to cure same, and Borrower and/or Bank
shall have the right (but not the obligation) within thirty (30) days after
receipt of such notice to cure such default or cause it to be cured; and
(ii) following a default by Contractor under the subcontract, at the
request of Borrower and/or Bank, the subcontractor will continue
performance under the subcontract in accordance with its terms, or will
enter into a new subcontract with a contractor to be approved by Borrower
and Bank upon substantially the same terms and conditions as the original
subcontract, so long as subcontractor shall be paid in accordance with the
subcontract or such new subcontract for all work, labor and materials
furnished in connection therewith. Contractor further agrees to furnish
Bank simultaneously with draw requests a copy of each fully executed
subcontract that has been signed within the preceding thirty (30) day
period.
Contractor acknowledges that Bank may have no means of determining in
due course when Contractor may claim a default under the Contract with
Borrower. Therefore, Contractor agrees that it shall not claim a breach
entitling it to rescind or terminate its performance under the Contract nor
will it claim any right to additional consideration, time or performance,
unless Contractor shall have given written notice to Bank of such breach at
the same time and in the same manner as notice is given to Owner, with the
same opportunity to cure, and provided further that Contractor is
compensated in accordance with the Contract for all services performed for
during such cure period. No claim by Contractor of rescission or of default
or of any right or remedy under the Contract shall be binding upon Bank in
the absence of receipt of such notice by Bank, and, upon the curing of any
such default or breach (whether cured by Borrower or Bank), Contractor
shall continue to perform its obligations under the Contract, which shall
be performed to or for the benefit of Bank, if Bank is then acting pursuant
to its rights under this document.
5. INSPECTION OF PROJECT.
Contractor will permit Bank or its agents at any time (i) to enter
upon and inspect the work or construction at the Project and (ii) in the
event that any mechanics' or materialmen's liens are filed against the
Project, or other questions are raised concerning Contractor's performance
relating to the Project, to examine such portions of Contractor's books and
records as relate to the Project or the Contract, as Bank or its agents may
require.
6. SUBORDINATION.
Contractor further agrees that any present or future lien rights
Contractor may have shall be subject and subordinate at all times to the
lien of Bank's mortgage on the Property, as the same may be hereafter
modified, spread, supplemented, extended or otherwise altered.
7. MISCELLANEOUS.
7.1 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
7.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
7.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
3
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Contractor has signed and sealed this agreement
as of the day and year first above written.
CONTRACTOR
PRECAST WALL SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
--------------------
Title: Vice President
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
AGREEMENT OF GENERAL CONTRACTOR
-------------------------------
AGREEMENT OF GENERAL CONTRACTOR (the "Agreement"), dated ________,
2000 by FLORIDA SEWER & WATER, INC., having an office at 00000 XX 0xx Xx.,
Xxx. 000, Xxxxxxx, XX 00000 ("Contractor"), in favor of FIRST UNION
NATIONAL BANK ("Bank"), a national banking association, having an office at
000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"); and
B. Contractor and Owner have entered into a Contract dated
January 21, 2000 (the "Contract") providing for the construction of the
Project on the Property; and
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Contractor enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement. As the loan will inure to the benefit of
Contractor, Contractor hereby agrees to be bound by and adhere to the
disbursement terms of the Loan Agreement to be executed by Borrower at the
closing of the Loan as contained in Section 5 of the Loan Agreement
attached hereto as Exhibit "A" and made a part hereof, ("Loan Agreement")
and Contractor hereby acknowledges payment in full for all services
rendered through the date of closing of the Loan and waives all lien claims
therefor and Contractor hereby subordinates its lien on the Property to the
lien of the Bank's mortgage encumbering the Property and all other security
instruments executed by Xxxxxxxx in favor of Bank.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Contractor represents and warrants that (i) no work was commenced nor
materials delivered to the Property prior to _________, 2000; (ii) all fees
and other sums required to be paid as of the date hereof under the terms of
the Contract have been paid (iii) the Contract is in full force and effect,
is valid and enforceable, and has not been altered, modified or amended;
(iv) neither Contractor nor, to the best of Contractor's knowledge, Owner
are in default under any of the terms, covenants or conditions of the
Contract; (v) Contractor is not prohibited under any law, agreement,
judgment or permit from performing any of its obligations under the
Contract; (vi) no action has been brought or, to the best of Contractor's
knowledge, is threatened which in any manner is likely to interfere with
the performance of any of Contractor's obligations under the Contract; and
(vii) Contractor has full power and authority to execute and deliver this
Agreement.
1
2. AGREEMENT TO PERFORM.
Contractor consents to the assignment of the Contract by Owner to
Bank pursuant to the Loan Agreement. Contractor agrees, at the request of
Bank and without regard to any prior default of Owner under the Contract,
to continue to perform under the terms of the Contract if Bank should
notify Contractor in writing that Bank has elected to undertake to complete
or cause the completion of the Project, provided that Contractor shall be
paid in accordance with the Contract for any work, labor and material
rendered on Bank's behalf following such request. Contractor further
specifically agrees that, in the event Bank forecloses or takes over the
Project and the Property, Contractor agrees to complete all work in
accordance with the Contract for Bank as long as Bank pays Contractor for
such work in accordance with the Contract, but Bank shall not be liable for
amounts already owed to Contractor for work previously performed and drawn
for under the Construction Loan Agreement,
3. MODIFICATION AND AMENDMENTS.
Contractor agrees that, without the prior written consent of Bank:
(i) no modifications to the Contract shall be made; (ii) no changes in the
Bank approved plans, specifications, working drawings or cost breakdowns
for the Project shall be made; (iii) no changes in the nature, amounts or
payees of any disbursement request submitted to Bank shall be made; (iv)
the Contract will not be terminated; and (v) no release of the Contractor
by Owner shall be operative or effective as to Bank.
4. CONTRACTOR'S COVENANTS.
Contractor agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) to pay and discharge all liens or
claims for labor and materials furnished in connection with the
construction of the Project pursuant to the Contract; (iv) to fully
complete the Project in a good and workmanlike manner on or before the
completion date specified in the Contract, subject to any permitted delays
as set forth in the Contract; (v) that in the event any of the Loan
proceeds are disbursed under the Loan Agreement directly to Contractor,
Contractor will receive such advances as a trust fund for the work to be
performed under the Contract and Contractor will apply such sums first to
such payment before using any part of such advances for any other purpose;
(vi) that Bank shall have no liability to Contractor either under the
Contract, this Agreement, or otherwise, for any act or omission occurring
prior to such time as Bank elects in writing to assume the future
obligations of Owner under the Contract; and (vii) to furnish to Bank, upon
request, complete, current and correct lists of all subcontractors and
material suppliers of the Project.
Contractor further covenants and agrees that the Project will be
completed in accordance with the plans and specifications for the Project
approved by Bank ("Plans and Specifications"), the list of which is
attached to the Contract, and that in addition to all affidavits, partial
releases and other documents and papers required to be furnished by
Contractor under the Contract and the Florida Mechanics' Lien Law,
Contractor, at the time of final payment, will furnish a full and complete
release of lien of Contractor and of every person who performed work, labor
or services or supplied materials covered by the Contract to the Property.
Requisitions for draws will be submitted on an AIA form as designated by
the Contract, accompanied by such certifications and other evidence of
payment of obligations as Bank may require. Contractor will not stop work
under the Contract for any reason without giving Bank at least seven (7)
days prior written notice.
Contractor agrees that each subcontract executed between Contractor
and a subcontractor performing work on the Project shall include a
provision whereby the subcontractor agrees that (i) if
2
Contractor defaults under the subcontract, the subcontractor will, before
exercising any remedy, give Borrower and Bank written notice specifying the
default and the steps necessary to cure same, and Borrower and/or Bank
shall have the right (but not the obligation) within thirty (30) days after
receipt of such notice to cure such default or cause it to be cured; and
(ii) following a default by Contractor under the subcontract, at the
request of Borrower and/or Bank, the subcontractor will continue
performance under the subcontract in accordance with its terms, or will
enter into a new subcontract with a contractor to be approved by Borrower
and Bank upon substantially the same terms and conditions as the original
subcontract, so long as subcontractor shall be paid in accordance with the
subcontract or such new subcontract for all work, labor and materials
furnished in connection therewith. Contractor further agrees to furnish
Bank simultaneously with draw requests a copy of each fully executed
subcontract that has been signed within the preceding thirty (30) day
period.
Contractor acknowledges that Bank may have no means of determining in
due course when Contractor may claim a default under the Contract with
Borrower. Therefore, Contractor agrees that it shall not claim a breach
entitling it to rescind or terminate its performance under the Contract nor
will it claim any right to additional consideration, time or performance,
unless Contractor shall have given written notice to Bank of such breach at
the same time and in the same manner as notice is given to Owner, with the
same opportunity to cure, and provided further that Contractor is
compensated in accordance with the Contract for all services performed for
during such cure period. No claim by Contractor of rescission or of default
or of any right or remedy under the Contract shall be binding upon Bank in
the absence of receipt of such notice by Bank, and, upon the curing of any
such default or breach (whether cured by Borrower or Bank), Contractor
shall continue to perform its obligations under the Contract, which shall
be performed to or for the benefit of Bank, if Bank is then acting pursuant
to its rights under this document.
5. INSPECTION OF PROJECT.
Contractor will permit Bank or its agents at any time (i) to enter
upon and inspect the work or construction at the Project and (ii) in the
event that any mechanics' or materialmen's liens are filed against the
Project, or other questions are raised concerning Contractor's performance
relating to the Project, to examine such portions of Contractor's books and
records as relate to the Project or the Contract, as Bank or its agents may
require.
6. SUBORDINATION.
Contractor further agrees that any present or future lien rights
Contractor may have shall be subject and subordinate at all times to the
lien of Bank's mortgage on the Property, as the same may be hereafter
modified, spread, supplemented, extended or otherwise altered.
7. MISCELLANEOUS.
7.1 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
7.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
7.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
3
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Contractor has signed and sealed this agreement
as of the day and year first above written.
CONTRACTOR
FLORIDA SEWER & WATER, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
--------------------
Title: Vice President
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
AGREEMENT OF GENERAL CONTRACTOR
-------------------------------
AGREEMENT OF GENERAL CONTRACTOR (the "Agreement"), dated __________,
2000 by XXXXX & COMPANY, INC., having an office at 0000 Xxxxxx Xxxx, 0xx
Xxxxx, Xxxx Xxxxxxxxxx, XX 00000 ("Contractor"), in favor of FIRST UNION
NATIONAL BANK ("Bank"), a national banking association, having an office at
000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as 'The Shoppes of
Town Center (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"); and
B. Contractor and Owner have entered into a Contract dated
February 28, 2000 (the "Contract") providing for the construction of the
Project on the Property; and
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Contractor enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement. As the loan will inure to the benefit of
Contractor, Contractor hereby agrees to be bound by and adhere to the
disbursement terms of the Loan Agreement to be executed by Borrower at the
closing of the Loan as contained in Section 5 of the Loan Agreement
attached hereto as Exhibit 'A" and made a part hereof, ("Loan Agreement")
and Contractor hereby acknowledges payment in full for all services
rendered through the date of closing of the Loan and waives all lien claims
therefor and Contractor hereby subordinates its lien on the Property to the
lien of the Bank's mortgage encumbering the Property and all other security
instruments executed by Xxxxxxxx in favor of Bank.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Contractor represents and warrants that: (i) no work was commenced
nor materials delivered to the Property prior to _________, 2000; (ii) all
fees and other sums required to be paid as of the date hereof under the
terms of the Contract have been paid (iii) the Contract is in full force
and effect, is valid and enforceable, and has not been altered, modified or
amended; (iv) neither Contractor nor, to the best of Contractor's
knowledge, Owner are in default under any of the terms, covenants or
conditions of the Contract; (v) Contractor is not prohibited under any law,
agreement, judgment or permit from performing any of its obligations under
the Contract; (vi) no action has been brought or, to the best of
Contractor's knowledge, is threatened which in any manner is likely to
interfere with the performance of any of Contractor's obligations under the
Contract; and (vii) Contractor has full power and authority to execute and
deliver this Agreement.
1
2. AGREEMENT TO PERFORM.
Contractor consents to the assignment of the Contract by Owner to
Bank pursuant to the Loan Agreement. Contractor agrees, at the request of
Bank and without regard to any prior default of Owner under the Contract,
to continue to perform under the terms of the Contract if Bank should
notify Contractor in writing that Bank has elected to undertake to complete
or cause the completion of the Project, provided that Contractor shall be
paid in accordance with the Contract for any work, labor and material
rendered on Bank's behalf following such request. Contractor further
specifically agrees that, in the event Bank forecloses or takes over the
Project and the Property, Contractor agrees to complete all work in
accordance with the Contract for Bank as long as Bank pays Contractor for
such work in accordance with the Contract, but Bank shall not be liable for
amounts already owed to Contractor for work previously performed and drawn
for under the Construction Loan Agreement,
3. MODIFICATION AND AMENDMENTS.
Contractor agrees that, without the prior written consent of Bank:
(i) no modifications to the Contract shall be made; (ii) no changes in the
Bank approved plans, specifications, working drawings or cost breakdowns
for the Project shall be made; (iii) no changes in the nature, amounts or
payees of any disbursement request submitted to Bank shall be made; (iv)
the Contract will not be terminated; and (v) no release of the Contractor
by Owner shall be operative or effective as to Bank.
4. CONTRACTOR'S COVENANTS.
Contractor agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) to pay and discharge all liens or
claims for labor and materials furnished in connection with the
construction of the Project pursuant to the Contract; (iv) to fully
complete the Project in a good and workmanlike manner on or before the
completion date specified in the Contract, subject to any permitted delays
as set forth in the Contract; (v) that in the event any of the Loan
proceeds are disbursed under the Loan Agreement directly to Contractor,
Contractor will receive such advances as a trust fund for the work to be
performed under the Contract and Contractor will apply such sums first to
such payment before using any part of such advances for any other purpose;
(vi) that Bank shall have no liability to Contractor either under the
Contract, this Agreement, or otherwise, for any act or omission occurring
prior to such time as Bank elects in writing to assume the future
obligations of Owner under the Contract; and (vii) to furnish to Bank, upon
request, complete, current and correct lists of all subcontractors and
material suppliers of the Project.
Contractor further covenants and agrees that the Project will be
completed in accordance with the plans and specifications for the Project
approved by Bank ("Plans and Specifications"), the list of which is
attached to the Contract, and that in addition to all affidavits, partial
releases and other documents and papers required to be furnished by
Contractor under the Contract and the Florida Mechanics' Lien Law,
Contractor, at the time of final payment, will furnish a full and complete
release of lien of Contractor and of every person who performed work, labor
or services or supplied materials covered by the Contract to the Property.
Requisitions for draws will be submitted on an AIA form as designated by
the Contract, accompanied by such certifications and other evidence of
payment of obligations as Bank may require. Contractor will not stop work
under the Contract for any reason without giving Bank at least seven (7)
days prior written notice.
Contractor agrees that each subcontract executed between Contractor
and a subcontractor performing work on the Project shall include a
provision whereby the subcontractor agrees that (i) if
2
Contractor defaults under the subcontract, the subcontractor will, before
exercising any remedy, give Borrower and Bank written notice specifying the
default and the steps necessary to cure same, and Borrower and/or Bank
shall have the right (but not the obligation) within thirty (30) days after
receipt of such notice to cure such default or cause it to be cured; and
(ii) following a default by Contractor under the subcontract, at the
request of Borrower and/or Bank, the subcontractor will continue
performance under the subcontract in accordance with its terms, or will
enter into a new subcontract with a contractor to be approved by Borrower
and Bank upon substantially the same terms and conditions as the original
subcontract, so long as subcontractor shall be paid in accordance with the
subcontract or such new subcontract for all work, labor and materials
furnished in connection therewith. Contractor further agrees to furnish
Bank simultaneously with draw requests a copy of each fully executed
subcontract that has been signed within the preceding thirty (30) day
period.
Contractor acknowledges that Bank may have no means of determining in
due course when Contractor may claim a default under the Contract with
Borrower. Therefore, Contractor agrees that it shall not claim a breach
entitling it to rescind or terminate its performance under the Contract nor
will it claim any right to additional consideration, time or performance,
unless Contractor shall have given written notice to Bank of such breach at
the same time and in the same manner as notice is given to Owner, with the
same opportunity to cure, and provided further that Contractor is
compensated in accordance with the Contract for all services performed for
during such cure period. No claim by Contractor of rescission or of default
or of any right or remedy under the Contract shall be binding upon Bank in
the absence of receipt of such notice by Bank, and, upon the curing of any
such default or breach (whether cured by Borrower or Bank), Contractor
shall continue to perform its obligations under the Contract, which shall
be performed to or for the benefit of Bank, if Bank is then acting pursuant
to its rights under this document.
5. INSPECTION OF PROJECT.
Contractor will permit Bank or its agents at any time (i) to enter
upon and inspect the work or construction at the Project and (ii) in the
event that any mechanics' or materialmen's liens are filed against the
Project, or other questions are raised concerning Contractor's performance
relating to the Project, to examine such portions of Contractor's books and
records as relate to the Project or the Contract, as Bank or its agents may
require.
6. SUBORDINATION.
Contractor further agrees that any present or future lien rights
Contractor may have shall be subject and subordinate at all times to the
lien of Bank's mortgage on the Property, as the same may be hereafter
modified, spread, supplemented, extended or otherwise altered.
7. MISCELLANEOUS.
7.1 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
7.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
7.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
3
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Contractor has signed and sealed this agreement
as of the day and year first above written.
CONTRACTOR
XXXXX & COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
--------------------
Title: President
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
AGREEMENT OF GENERAL CONTRACTOR
-------------------------------
AGREEMENT OF GENERAL CONTRACTOR (the "Agreement"), dated __________,
2000 by XXXXXXX XXXX, INC., a Florida corporation, having an office at 0000
X.X. Boca Raton Blvd., Xxx. 000, Xxxx Xxxxx, XX 00000 ("Contractor"), in
favor of FIRST UNION NATIONAL BANK ("Bank"), a national banking
association, having an office at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"); and
B. Contractor and Owner have entered into a Contract dated
April 5, 2000 (the "Contract") providing for the construction of the
Project on the Property; and (East Retail Bldg.)
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Contractor enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement. As the loan will inure to the benefit of
Contractor, Contractor hereby agrees to be bound by and adhere to the
disbursement terms of the Loan Agreement to be executed by Borrower at the
closing of the Loan as contained in Section 5 of the Loan Agreement
attached hereto as Exhibit "A" and made a part hereof, ("Loan Agreement")
and Contractor hereby acknowledges payment in full for all sen/ices
rendered through the date of closing of the Loan and waives all lien claims
therefor and Contractor hereby subordinates its lien on the Property to the
lien of the Bank's mortgage encumbering the Property and all other security
instruments executed by Borrower in favor of Bank.
AGREEMENT
---------
NOW THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Contractor represents and warrants that: (i) no work was commenced
nor materials delivered to the Property prior to _________, 2000; (ii) all
fees and other sums required to be paid as of the date hereof under the
terms of the Contract have been paid (iii) the Contract is in full force
and effect, is valid and enforceable, and has not been altered, modified or
amended; (iv) neither Contractor nor, to the best of Contractor's
knowledge, Owner are in default under any of the terms, covenants or
conditions of the Contract; (v) Contractor is not prohibited under any law,
agreement, judgment or permit from performing any of its obligations under
the Contract (vi) no action has been brought or, to the best of
Contractor's knowledge, is threatened which in any manner is likely to
interfere with the performance of any of Contractor's obligations under the
Contract; and (vii) Contractor has full power and authority to execute and
deliver this Agreement.
1
2. AGREEMENT TO PERFORM.
Contractor consents to the assignment of the Contract by Owner to
Bank pursuant to the Loan Agreement. Contractor agrees, at the request of
Bank and without regard to any prior default of Owner under the Contract,
to continue to perform under the terms of the Contract if Bank should
notify Contractor in writing that Bank has elected to undertake to complete
or cause the completion of the Project, provided that Contractor shall be
paid in accordance with the Contract for any work, labor and material
rendered on Bank's behalf following such request. Contractor further
specifically agrees that, in the event Bank forecloses or takes over the
Project and the Property, Contractor agrees to complete all work in
accordance with the Contract for Bank as long as Bank pays Contractor for
such work in accordance with the Contract, but Bank shall not be liable for
amounts already owed to Contractor for work previously performed and drawn
for under the Construction Loan Agreement,
3. MODIFICATION AND AMENDMENTS.
Contractor agrees that, without the prior written consent of Bank:
(i) no modifications to the Contract shall be made; (ii) no changes in the
Bank approved plans, specifications, working drawings or cost breakdowns
for the Project shall be made; (iii) no changes in the nature, amounts or
payees of any disbursement request submitted to Bank shall be made; (iv)
the Contract will not be terminated; and (v) no release of the Contractor
by Owner shall be operative or effective as to Bank.
4. CONTRACTOR'S COVENANTS.
Contractor agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) to pay and discharge all liens or
claims for labor and materials furnished in connection with the
construction of the Project pursuant to the Contract; (iv) to fully
complete the Project in a good and workmanlike manner on or before the
completion date specified in the Contract, subject to any permitted delays
as set forth in the Contract; (v) that in the event any of the Loan
proceeds are disbursed under the Loan Agreement directly to Contractor,
Contractor will receive such advances as a trust fund for the work to be
performed under the Contract and Contractor will apply such sums first to
such payment before using any part of such advances for any other purpose;
(vi) that Bank shall have no liability to Contractor either under the
Contract, this Agreement, or otherwise, for any act or omission occurring
prior to such time as Bank elects in writing to assume the future
obligations of Owner under the Contract; and (vii) to furnish to Bank, upon
request, complete, current and correct lists of all subcontractors and
material suppliers of the Project.
Contractor further covenants and agrees that the Project will be
completed in accordance with the plans and specifications for the Project
approved by Bank ("Plans and Specifications"), the list of which is
attached to the Contract, and that in addition to all affidavits, partial
releases and other documents and papers required to be furnished by
Contractor under the Contract and the Florida Mechanics' Lien Law,
Contractor, at the time of final payment, will furnish a full and complete
release of lien of Contractor and of every person who performed work, labor
or services or supplied materials covered by the Contract to the Property.
Requisitions for draws will be submitted on an AIA form as designated by
the Contract, accompanied by such certifications and other evidence of
payment of obligations as Bank may require. Contractor will not stop work
under the Contract for any reason without giving Bank at least seven (7)
days prior written notice.
Contractor agrees that each subcontract executed between Contractor
and a subcontractor performing work on the Project shall include a
provision whereby the subcontractor agrees that (i) if
2
Contractor defaults under the subcontract, the subcontractor will, before
exercising any remedy, give Borrower and Bank written notice specifying the
default and the steps necessary to cure same, and Borrower and/or Bank
shall have the right (but not the obligation) within thirty (30) days after
receipt of such notice to cure such default or cause it to be cured; and
(ii) following a default by Contractor under the subcontract, at the
request of Borrower and/or Bank, the subcontractor will continue
performance under the subcontract in accordance with its terms, or will
enter into a new subcontract with a contractor to be approved by Borrower
and Bank upon substantially the same terms and conditions as the original
subcontract, so long as subcontractor shall be paid in accordance with the
subcontract or such new subcontract for all work, labor and materials
furnished in connection therewith. Contractor further agrees to furnish
Bank simultaneously with draw requests a copy of each fully executed
subcontract that has been signed within the preceding thirty (30) day
period.
Contractor acknowledges that Bank may have no means of determining in
due course when Contractor may claim a default under the Contract with
Borrower. Therefore, Contractor agrees that it shall not claim a breach
entitling it to rescind or terminate its performance under the Contract nor
will it claim any right to additional consideration, time or performance,
unless Contractor shall have given written notice to Bank of such breach at
the same time and in the same manner as notice is given to Owner, with the
same opportunity to cure, and provided further that Contractor is
compensated in accordance with the Contract for all services performed for
during such cure period. No claim by Contractor of rescission or of default
or of any right or remedy under the Contract shall be binding upon Bank in
the absence of receipt of such notice by Bank, and, upon the curing of any
such default or breach (whether cured by Borrower or Bank), Contractor
shall continue to perform its obligations under the Contract, which shall
be performed to or for the benefit of Bank, if Bank is then acting pursuant
to its rights under this document.
5. INSPECTION OF PROJECT.
Contractor will permit Bank or its agents at any time (i) to enter
upon and inspect the work or construction at the Project and (ii) in the
event that any mechanics' or materialmen's liens are filed against the
Project, or other questions are raised concerning Contractor's performance
relating to the Project, to examine such portions of Contractor's books and
records as relate to the Project or the Contract, as Bank or its agents may
require.
6. SUBORDINATION.
Contractor further agrees that any present or future lien rights
Contractor may have shall be subject and subordinate at all times to the
lien of Bank's mortgage on the Property, as the same may be hereafter
modified, spread, supplemented, extended or otherwise altered.
7. MISCELLANEOUS.
7.1 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
7.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
7.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
3
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Contractor has signed and sealed this agreement
as of the day and year first above written.
CONTRACTOR
XXXXXXX XXXX, INC., a Florida corporation
By: /s/ Xxx Xxxx
--------------------
Name: Xxx Xxxx
--------------------
Title: Vice President
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
AGREEMENT OF GENERAL CONTRACTOR
-------------------------------
AGREEMENT OF GENERAL CONTRACTOR (the "Agreement"), dated ___________,
2000 by XXXXXXX XXXX, INC., a Florida corporation, having an office at 0000
X.X. Boca Raton Blvd., Xxx. 000, Xxxx Xxxxx, XX 00000 ("Contractor"), in
favor of FIRST UNION NATIONAL BANK ("Bank"), a national banking
association, having an office at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"); and
B. Contractor and Owner have entered into a Contract dated
April 5, 2000 (the "Contract") providing for the construction of the
Project on the Property; and (West Retail Bldg)
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Contractor enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement. As the loan will inure to the benefit of
Contractor, Contractor hereby agrees to be bound by and adhere to the
disbursement terms of the Loan Agreement to be executed by Borrower at the
closing of the Loan as contained in Section 5 of the Loan Agreement
attached hereto as Exhibit "A" and made a part hereof, ("Loan Agreement")
and Contractor hereby acknowledges payment in full for all services
rendered through the date of closing of the Loan and waives all lien claims
therefor and Contractor hereby subordinates its lien on the Property to the
lien of the Bank's mortgage encumbering the Property and all other security
instruments executed by Xxxxxxxx in favor of Bank.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Contractor represents and warrants that: (i) no work was commenced
nor materials delivered to the Property prior to _________, 2000; (ii) all
fees and other sums required to be paid as of the date hereof under the
terms of the Contract have been paid (iii) the Contract is in full force
and effect, is valid and enforceable, and has not been altered, modified or
amended; (iv) neither Contractor nor, to the best of Contractor's
knowledge, Owner are in default under any of the terms, covenants or
conditions of the Contract; (v) Contractor is not prohibited under any law,
agreement, judgment or permit from performing any of its obligations under
the Contract; (vi) no action has been brought or, to the best of
Contractor's knowledge, is threatened which in any manner is likely to
interfere with the performance of any of Contractor's obligations under the
Contract; and (vii) Contractor has full power and authority to execute and
deliver this Agreement.
1
2. AGREEMENT TO PERFORM.
Contractor consents to the assignment of the Contract by Owner to
Bank pursuant to the Loan Agreement. Contractor agrees, at the request of
Bank and without regard to any prior default of Owner under the Contract,
to continue to perform under the terms of the Contract if Bank should
notify Contractor in writing that Bank has elected to undertake to complete
or cause the completion of the Project, provided that Contractor shall be
paid in accordance with the Contract for any work, labor and material
rendered on Bank's behalf following such request. Contractor further
specifically agrees that, in the event Bank forecloses or takes over the
Project and the Property, Contractor agrees to complete all work in
accordance with the Contract for Bank as long as Bank pays Contractor for
such work in accordance with the Contract, but Bank shall not be liable for
amounts already owed to Contractor for work previously performed and drawn
for under the Construction Loan Agreement,
3. MODIFICATION AND AMENDMENTS.
Contractor agrees that, without the prior written consent of Bank:
(i) no modifications to the Contract shall be made; (ii) no changes in the
Bank approved plans, specifications, working drawings or cost breakdowns
for the Project shall be made; (iii) no changes in the nature, amounts or
payees of any disbursement request submitted to Bank shall be made; (iv)
the Contract will not be terminated; and (v) no release of the Contractor
by Owner shall be operative or effective as to Bank.
4. CONTRACTOR'S COVENANTS.
Contractor agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) to pay and discharge all liens or
claims for labor and materials furnished in connection with the
construction of the Project pursuant to the Contract; (iv) to fully
complete the Project in a good and workmanlike manner on or before the
completion date specified in the Contract, subject to any permitted delays
as set forth in the Contract; (v) that in the event any of the Loan
proceeds are disbursed under the Loan Agreement directly to Contractor,
Contractor will receive such advances as a trust fund for the work to be
performed under the Contract and Contractor will apply such sums first to
such payment before using any part of such advances for any other purpose;
(vi) that Bank shall have no liability to Contractor either under the
Contract, this Agreement, or otherwise, for any act or omission occurring
prior to such time as Bank elects in writing to assume the future
obligations of Owner under the Contract; and (vii) to furnish to Bank, upon
request, complete, current and correct lists of all subcontractors and
material suppliers of the Project.
Contractor further covenants and agrees that the Project will be
completed in accordance with the plans and specifications for the Project
approved by Bank ("Plans and Specifications"), the list of which is
attached to the Contract, and that in addition to all affidavits, partial
releases and other documents and papers required to be furnished by
Contractor under the Contract and the Florida Mechanics' Lien Law,
Contractor, at the time of final payment, will furnish a full and complete
release of lien of Contractor and of every person who performed work, labor
or services or supplied materials covered by the Contract to the Property.
Requisitions for draws will be submitted on an AIA form as designated by
the Contract, accompanied by such certifications and other evidence of
payment of obligations as Bank may require. Contractor will not stop work
under the Contract for any reason without giving Bank at least seven (7)
days prior written notice.
Contractor agrees that each subcontract executed between Contractor
and a subcontractor performing work on the Project shall include a
provision whereby the subcontractor agrees that (i) if
2
Contractor defaults under the subcontract, the subcontractor will, before
exercising any remedy, give Borrower and Bank written notice specifying the
default and the steps necessary to cure same, and Borrower and/or Bank
shall have the right (but not the obligation) within thirty (30) days after
receipt of such notice to cure such default or cause it to be cured; and
(ii) following a default by Contractor under the subcontract, at the
request of Borrower and/or Bank, the subcontractor will continue
performance under the subcontract in accordance with its terms, or will
enter into a new subcontract with a contractor to be approved by Borrower
and Bank upon substantially the same terms and conditions as the original
subcontract, so long as subcontractor shall be paid in accordance with the
subcontract or such new subcontract for all work, labor and materials
furnished in connection therewith. Contractor further agrees to furnish
Bank simultaneously with draw requests a copy of each fully executed
subcontract that has been signed within the preceding thirty (30) day
period.
Contractor acknowledges that Bank may have no means of determining in
due course when Contractor may claim a default under the Contract with
Borrower. Therefore, Contractor agrees that it shall not claim a breach
entitling it to rescind or terminate its performance under the Contract nor
will it claim any right to additional consideration, time or performance,
unless Contractor shall have given written notice to Bank of such breach at
the same time and in the same manner as notice is given to Owner, with the
same opportunity to cure, and provided further that Contractor is
compensated in accordance with the Contract for all services performed for
during such cure period. No claim by Contractor of rescission or of default
or of any right or remedy under the Contract shall be binding upon Bank in
the absence of receipt of such notice by Bank, and, upon the curing of any
such default or breach (whether cured by Borrower or Bank), Contractor
shall continue to perform its obligations under the Contract, which shall
be performed to or for the benefit of Bank, if Bank is then acting pursuant
to its rights under this document.
5. INSPECTION OF PROJECT.
Contractor will permit Bank or its agents at any time (i) to enter
upon and inspect the work or construction at the Project and (ii) in the
event that any mechanics' or materialmen's liens are filed against the
Project, or other questions are raised concerning Contractor's performance
relating to the Project, to examine such portions of Contractor's books and
records as relate to the Project or the Contract, as Bank or its agents may
require.
6. SUBORDINATION.
Contractor further agrees that any present or future lien rights
Contractor may have shall be subject and subordinate at all times to the
lien of Bank's mortgage on the Property, as the same may be hereafter
modified, spread, supplemented, extended or otherwise altered.
7. MISCELLANEOUS.
7.1 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
7.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
7.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
3
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Contractor has signed and sealed this agreement
as of the day and year first above written.
CONTRACTOR
XXXXXXX XXXX, INC., a Florida corporation
By: /s/ Xxx Xxxx
--------------------
Name: Xxx Xxxx
--------------------
Title: Vice President
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
ARCHITECT'S CERTIFICATE AND AGREEMENT
-------------------------------------
ARCHITECT'S CERTIFICATE AND AGREEMENT (the "Agreement"), dated
____________, 2000, by XXXXXX & ASSOCIATES, INC., having an office at 000
Xxxxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 ("Architect") in
favor of FIRST UNION NATIONAL BANK ("Bank"), a national banking
association, having an office at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Bank"), a national banking association
having an office at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 ("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center" (the "Project") on certain premises located at the northwest
corner of Arvida Parkway and Bonaventure Boulevard, Broward County, Florida
(the "Property"), and
B. Architect has (i) prepared the plans and specifications
identified on Schedule A attached hereto (the "Plans and Specifications")
for use in connection with the construction of the Project, and (ii)
entered into a contract with Owner dated February 17, 2000 (the "Contract")
providing for certain design and construction observation services relating
to the Project; and
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Architect enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
2. CERTIFICATE. [ Architect stipulates and bank agrees and releases
Architect's plans and specifications from conditions should underlined
(designated by all cap) and will look to civil engineer's and other
disciplines' plans and specifications for such certifications. ]
Architect represents and warrants that [ to the best of his know-
ledge ]; (i) the Project, upon completion in accordance with the Plans and
Specifications, and its contemplated use will comply with all applicable
building, ], ENVIRONMENTAL, LANDMARK, HEALTH and handicap access,
SUBDIVISION AND ZONING CODES, LAWS, ORDINANCES, AND REGULATIONS IMPOSED BY
ALL GOVERNMENTAL authorities having jurisdiction over the Project and the
Property, AND WILL COMPLY WITH ALL COVENANTS, CONDITIONS, EASEMENTS AND
RESTRICTIONS AFFECTING THE PROPERTY; (ii) all permits, licenses and other
approvals (with the exception of certificates of occupancy) required for
the construction and operation of the Project in accordance with the Plans
and Specifications have been [ or are in the process of being ] obtained
from all appropriate governmental and private authorities and agencies;
(iii) ALL ELECTRICITY, GAS, WATER, SEWAGE DISPOSAL AND OTHER UTILITIES
REQUIRED FOR THE USE AND OPERATION OF THE PROJECT WILL BE AVAILABLE UPON
COMPLETION OF THE PROJECT IN ACCORDANCE WITH THE PLANS AND SPECIFICATIONS
WITHOUT THE NECESSITY OF ANY OFF-SITE OR ON-SITE IMPROVEMENTS OTHER THAN
THOSE CONTAINED IN THE PLANS AND SPECIFICATIONS; (iv) [ strikeout ]; (v)
the Contract is in full force and effect, is valid and enforceable, and has
not been altered, modified or amended; (vi) neither Architect nor, to the
best of Architect's knowledge, Owner are in default under any of the terms,
covenants or conditions of the
1
Contract; (vii) Architect is not prohibited under any law, agreement,
judgment or permit from performing any of its obligations under the
Contract; (viii) no action has been brought or, to the best of Architect's
knowledge, threatened which in any manner is likely to interfere with the
performance of any of Architect's obligations under the Contract; and (ix)
Architect has full power and authority to execute and deliver this
Agreement.
2. AGREEMENT TO PERFORM.
Architect consents to the assignment of the Contract and the Plans
and Specifications by Owner to Bank pursuant to the Loan Agreement.
Architect agrees, at the request of Bank and without regard to any prior
default of Owner under the Contract, to continue to perform under the terms
of the Contract if Bank should notify Architect in writing that Bank has
elected to undertake to complete or cause the completion of the Project;
provided that Architect shall be paid in accordance with the Contract for
any work, labor and material rendered on Bank's behalf following such
request.
3. USE OF PLANS.
Architect agrees that Bank and its agents shall have the right to
possess and use all the Plans and Specifications, the ideas, designs and
concepts contained therein, and all modifications thereof, in connection
with the completion of the Project, without payment of any additional fees
or charges for such use.
4. ARCHITECT'S COVENANTS. [ Architect stipulates and bank agrees that
Architect's fees are being paid on an "on going" basis in accordance with
his contract with owner; architect agrees to "partial release" for fees
paid as stipulation in underlined ______ (designated by all cap). ]
Architect agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) not to modify or amend the Contract
without the prior written consent of Bank; (iv) that Bank shall have no
liability to Architect either under the Contract, this Agreement, or
otherwise, for any act or omission occurring prior to such time as Bank
elects in writing to assume the future obligations of Owner under the
Contract; and (v) THAT ALL ARCHITECT'S FEES DUE THROUGH THE DATE HEREOF
HAVE BEEN PAID, WAIVED OR OTHERWISE DISCHARGED, SO THAT ARCHITECT WILL
CLAIM NO LIEN THEREFOR. No claim by Architect of rescission or of default
or of any right or remedy under Architect's Agreement shall be binding upon
Lender in the absence of such notice, and, upon the curing of any such
default or breach (whether cured by Borrower or Lender), Architect shall
continue to perform its obligations under Architect's Agreement, which
shall be performed to or for the benefit of Lender, if Lender is then
acting pursuant to rights granted pursuant to this document.
5. RETENTION OF FINAL PLANS.
Architect agrees that upon completion of the Project, Bank may retain
such sets of the Plans and Specifications as may be necessary for the
operation, management, maintenance or repair of the Project, provided that
in no event may the Plans and Specifications be used for the construction
of any buildings or improvements other than those which comprise the
Project without Architect's prior written consent.
6. MISCELLANEOUS.
6.1. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
6.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
2
6.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date
first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its
address by giving written notice to the other party as specified herein.
6.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Architect has signed and sealed this agreement as
of the day and year first above written.
ARCHITECT
XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxx Xx.
------------------------------
Name: Xxxx Xxxxxx Xx.
------------------------------
Title: President
------------------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
3
ENGINEER'S AGREEMENT
--------------------
AGREEMENT OF ENGINEER (the "Agreement"), dated ___________, 2000, by
XXXXXX XXXX & ASSOCIATES, INC., having an office at 0000 X. Xxxxxxx Xxxx,
Xxx. 000, Xxxxxxxx Xxxxx, XX 00000 ("Engineer"), in favor of FIRST UNION
NATIONAL BANK ("Bank"), a national banking association, having an office at
000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Bank").
BACKGROUND
----------
A. Bank, pursuant to the terms and conditions of a Loan Agreement
between WESTON TOWN CENTER, LLC, a Delaware limited liability company
("Owner") and Bank (the "Loan Agreement"), will be providing financing for
the construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be known as "The Shoppes of
Town Center" (the "Project") on certain premises located on the northwest
corner of Arvida Parkway and Bonaventure Boulevard, City of Weston, Broward
County, Florida (the "Property"); and
B. Engineer has (i) prepared the plans and specifications
identified on Schedule A attached hereto (the "Plans and Specifications")
for use in connection with the construction of the Project, and (ii)
entered into a contract with Owner dated May 16, 2000 (the "Contract")
providing for certain design and construction observation services relating
to the Project; and
C. It is a condition to Bank's making the loan described in the
Loan Agreement (the "Loan") that Engineer enter into this Agreement, on
which Agreement Bank will be relying in disbursing proceeds of the Loan
pursuant to the Loan Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CONTRACT.
Engineer represents and warrants that: (i) the Contract is in full
force and effect, is valid and enforceable, and has not been altered,
modified or amended; (ii) neither Engineer nor, to the best of Engineer's
knowledge, Owner are in default under any of the terms, covenants or
conditions of the Contract; (iii) Engineer is not prohibited under any law,
agreement, judgment or permit from performing any of its obligations under
the Contract; (iv) no action has been brought or, to the best of Engineer's
knowledge, is threatened which in any manner is likely to interfere with
the performance of any of Engineer's obligations under the Contract; and
(v) Engineer has full power and authority to execute and
1
deliver this Agreement.
[REST OF PAGE BLANK]
2
2. AGREEMENT TO PERFORM.
Engineer consents to the assignment of the Contract and the Plans and
Specifications by Owner to Bank pursuant to the Loan Agreement. Engineer
agrees, at the request of Bank and without regard to any prior default of
Owner under the Contract, to continue to perform under the terms of the
Contract if Bank should notify Engineer in writing that Bank has elected to
undertake to complete or cause the completion of the Project; provided that
Engineer shall be paid in accordance with the Contract for any work, labor
and material rendered on Bank's behalf following such request.
3. USE OF PLANS.
Engineer agrees that Bank and its agents shall have the right to
possess and use all the Plans and Specifications, the ideas, designs and
concepts contained therein, and all modifications thereof, in connection
with the completion of the Project, without payment of any additional fees
or charges for such use.
4. ENGINEER'S COVENANTS.
Engineer agrees: (i) to give Bank prompt written notice at Bank's
address as set forth above of any defaults by Owner under the Contract and
to give Bank, at the sole option of Bank, the right (but not the
obligation) to cure any defaults by Owner under the Contract for a period
of thirty (30) days after receipt by Bank of notice of such default; (ii)
not to assign its rights and obligations under the Contract without the
prior written consent of Bank; (iii) not to modify or amend the Contract
without the prior written consent of Bank; (iv) that Bank shall have no
liability to Engineer either under the Contract, this Agreement, or
otherwise, for any act or omission occurring prior to such time as Bank
elects in writing to assume the future obligations of Owner under the
Contract; and (v) that all Engineer's fees due through the date hereof have
been paid, waived or otherwise discharged so that Engineer will claim no
lien therefor.
5. RETENTION OF FINAL PLANS.
Engineer agrees that upon completion of the Project, Bank may retain
such sets of the Plans and Specifications as may be necessary for the
operation, management, maintenance or repair of the Project, provided that
in no event may the Plans and Specifications be used for the construction
of any buildings or improvements other than those which comprise the
Project without Engineer's prior written consent.
6. MISCELLANEOUS.
6.1. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
6.2. Modifications. This Agreement may not be supplemented, amended
or modified unless set forth in writing and signed by the parties hereto.
6.3. Notices. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand delivery, (b)
first class mail (postage prepaid), or (c) reliable overnight commercial
courier (charges prepaid) to the addresses listed in this Agreement. Notice
shall be deemed
3
to have been given and received: (i) if by hand delivery, upon delivery;
(ii) if by mail, three (3) calendar days after the date first deposited in
the United States mail; and (iii) if by overnight courier, on the date
scheduled for delivery. A party may change its address by giving written
notice to the other party as specified herein.
6.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without reference to conflict of laws principles.
IN WITNESS WHEREOF, Xxxxxxxx has signed and sealed this agreement as
of the day and year first above written.
ENGINEER
XXXXXX XXXX & ASSOCIATES, INC.
By: /s/ Xxx X. Xxxxxxx
--------------------
Name: Xxx X. Xxxxxxx, P.E.
--------------------
Title: V.P. Engineering
--------------------
[ CORPORATE SEAL ]
DESCRIPTION AND ADDRESS OF PROJECT:
Construction of a retail shopping center with second floor office space
containing approximately 147,881 net leaseable square feet to be anchored
by Publix Supermarket (the "Improvements") to be located on a parcel of
approximately 23.80 plus/minus acres on certain premises located on the
northwest corner of Arvida Parkway and Bonaventure Boulevard, City of
Weston, Broward County, Florida.
4
DISBURSEMENT AGREEMENT
Commitment No. C*864-79440
Policy No. ____________________
Escrow No. 13211A
Date: May 19, 2000
ARTICLE I
---------
PARTIES AND ADDRESSES AND TELEPHONES
------------------------------------
1.01 DISBURSING AGENT: GOLD COAST TITLE - WEST ("Disbursing Agent")
1.02 BORROWER: WESTON TOWN CENTER, LLC, A Florida limited liability
company ("Borrower")
1.03 GENERAL CONTRACTOR: See Schedule I attached hereto.
("General Contractor")
1.04 LENDER: FIRST UNION NATIONAL BANK ("Lender")
Ninth Floor
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
1.05 EXHIBITS: The following exhibits are attached to and made a
part of this Agreement "A", "B", "C", "D", "E", "F" and "G".
ARTICLE II
----------
DEFINITIONS
-----------
2.01 The "Property" is the land legally described in the commitment
to insure and/or policy enumerated above and improvements presently affixed
thereto.
2.02 The "Project" is the land as defined in 2.01 and the
improvements to be constructed pursuant to the Loan Agreement, and related
documents, between Borrower and Lender and to be paid for from the funds
allocated pursuant to this Agreement.
ARTICLE III
-----------
PURPOSE
-------
3.01 Lender has agreed to make to Borrower a construction loan in
the amount of $20,000,000 to construct a retail shopping center with second
floor office space consisting of a total of 147,881 +/- net leaseable
square feet to be anchored by a Publix Supermarket to be located on a
parcel of approximately 23.80 plus/minus acres at the northwest corner of
Arvida Parkway and Bonaventure Boulevard, City of Weston, Broward County,
Florida. The Loan is to be secured by a Mortgage and other security
documents (hereinafter referred to as the "Mortgage") on said Project.
3.02 For the benefit of Lender, Disbursing Agent has been requested
to issue, through an Agent in good standing, its commitment and/or policy
insuring that the lien of the Mortgage has priority over all liens,
instruments, or other matters as appear in the public records, except as
disclosed in the commitment and/or policy.
1
3.03 Disbursing Agent has been further requested to perform certain
construction services in connection with disbursement of the allocated
development and construction loan funds. Said services shall consist of
one or more of the following:
(1) Title searches and endorsements.
(2) Receipt and examination of construction documentation
such as lien waivers, requisitions, etc., related to
construction loan fundings.
(3) Disbursement of site development and construction
loan funds.
ARTICLE IV
----------
INSPECTION AND DOCUMENTATION
----------------------------
4.01 Disbursing Agent has the right, but not the obligation, and
solely for its own protection, to make such inspections as it deems
advisable. Lender, Borrower and Contractor especially acknowledge that
they do not and shall not rely on any inspections which Disbursing Agent
may make pursuant hereto.
4.02 Borrower and Contractor agree to facilitate said inspections
and Project meetings; that they will freely disclose, without limitation,
all aspects of any work, labor or materials furnished. And, at the request
of Disbursing Agent, present all contracts, change orders, affidavits, lien
waivers and paid bills as may be required for Disbursing Agent to perform
its services.
4.03 Disbursing Agent shall rely on documentation received to the
same extent as Borrower is entitled to rely on the same.
ARTICLE V
---------
SERVICES
--------
5.01 SEARCHES AND ENDORSEMENTS
Prior to each funding of construction loan proceeds, Disbursing Agent
shall make a search of the public records of the county in which the
Mortgage is recorded and inform Xxxxxx of any new matters that appear of
record since the date of the policy or the prior title search. After funds
have been advanced, Disbursing Agent will issue an endorsement to the title
policy (Exhibit "D") increasing the insurance coverage to an amount equal
to the sum of all prior fundings and the current funding. Disbursing Agent
shall certify to Lender that the insurance in force has been increased to
equal the disbursed balance under the loan and there have been no
instruments filed of record which in any way disturb the priority of the
lien of the Mortgage, except as noted and agreed by Xxxxxx.
5.02 RECEIPT AND EXAMINATION OF DOCUMENTS
Prior to each funding, Disbursing Agent shall receive and examine the
following documentation:
(1) Necessary affidavits, statements, waivers of lien
and other documentation from Borrower pursuant to
Chapter 713 of the Florida Statutes relating to
Xxxxxxxx's responsibilities, all as set forth in
the Payment System Schedule (Exhibit "C).
(2) Necessary requisitions, statements, waivers of lien
and other documentation from Contractor pursuant to
Chapter 713 of the Florida Statutes relating to
Contractor's responsibilities, all as set forth in
the Payment System Schedule (Exhibit "C).
2
5.03 DISBURSEMENT OF FUNDS
Disbursing Agent, if requested as part of this Agreement, will make
disbursements of the loan proceeds in accordance with the Project
Disbursement Schedule (Exhibit "B") and with the procedures set forth in
Payment System Schedule (Exhibit "C").
ARTICLE VI
----------
LIMITATIONS OF LIABILITY
------------------------
6.01 Disbursing Agent is not obligated to act except in accord with
the terms and conditions of this Agreement. Disbursing Agent will be
liable only for its failure to fulfill its obligations under the terms of
this Agreement and any liability based on implied covenants or agreements
is hereby expressly disclaimed. Without waiving any other courses of action
available to it, Disbursing Agent will have fulfilled its obligation under
this Agreement as to any claim which is founded on an alleged mechanic's
lien for which it may be liable due to its failure to perform its duties
under this Agreement by either bonding of the claim of lien in accord with
Section 713.24 of the Florida Statutes or by issuing an endorsement to said
policy affirmatively insuring against the enforcement or attempted
enforcement of said lien.
6.02 Disbursing Agent shall have no responsibility:
(1) to see that the Project is constructed in accord with
the plans and specifications;
(2) to see that the Project contemplated under this
Agreement will be completed or that sufficient funds
are available for completion;
(3) for determining the adequacy or appropriateness of
design, engineering details or architectural features
of the Project;
(4) for mechanics' liens or claims of lien by contractors,
subcontractors or materialmen not disclosed to Disbursing
Agent by the Requisition and Sworn Statement of
Contractor and Requisition and Sworn Statement of
Xxxxxxxx referred to in Exhibit "C";
(5) for claims which may be founded in Waivers of Lien
and/or paid invoices submitted to it (except where
Xxxxxx required Disbursing Agent to disburse directly
to the parties set forth in Contractor's Requisition
and Sworn Statement) which has been forged or otherwise
wrongfully procured, nor where such document was executed
by a person lacking authority to execute same;
(6) to Borrower for any claims that the disbursement made
under this Agreement may not be proper payments as same
may be required under the provisions of Florida
Construction Lien Law (Chapter 713);
(7) to confirm that Borrower and Contractor are in compliance
with the terms of any agreement with Lender, including,
but not limited to, promissory notes, mortgages, deeds
of trust, construction loan agreements or commitments,
nor shall Disbursing Agent be responsible for failure
of either party to perform under such agreement.
6.03. Disbursing Agent will not be liable for loss or impairment of
any funds, which are in the course of collection or on deposit with any
bank, due to bank failure, insolvency or suspension.
3
ARTICLE VII
-----------
GENERAL CONDITIONS
------------------
7.01 Disbursing Agent will execute this Agreement only on the
condition that the Construction Mortgage to Lender will be recorded prior
to the recording of the Notice of Commencement pursuant to the Florida
Construction Lien Law (Chapter 713).
7.02 Disbursing Agent shall be required to obtain or review any
statement or waiver of lien from any party shown in Contractor's and
Xxxxxxxx's Requisitions and Sworn Statements or, where Disbursing Agent has
received a Notice to Owner for any supplier or subcontractor not shown in
documentation received.
7.03 Disbursing Agent agrees that all title insurance coverage,
including that against mechanics' and materialmen's liens, is afforded only
by the aforementioned Mortgagee Title Policy with subsequent endorsements
and that no insurance is afforded by this Agreement.
7.04 All parties agree that this Agreement does not create a
partnership, trust relationship, agency relationship, third-party
beneficiary relationship or any other legal relationship other than that of
independent contracting parties.
7.05 Proceeds of the loan shall be funded as allocated and agreed by
Xxxxxxxx and Xxxxxx, as shown in the Project Disbursement Schedule (Exhibit
"B"). These allocations shall be changed only by request of Borrower and
upon written approval of Lender. Should Borrower's Requisition not reflect
increases or changes in costs of construction as specifically allocated,
especially items such as extras, change orders or contracts with new
contractors and/or suppliers, Disbursing Agent shall have no liability to
Borrower, Contractor or Lender for any consequences resulting therefrom.
7.06 Borrower warrants to Disbursing Agent that the funds allocated
for construction are as of the date hereof, ample to complete the Project.
Contractor warrants to Disbursing Agent that the amount of his contract
with Xxxxxxxx is sufficient to complete the work contemplated therein.
While Disbursing Agent has no liability for sufficiency of funds to
complete the Project, it is unwilling to enter into this Agreement where
the funds are inadequate to complete construction, due to the possibility
of litigation and its related costs and expenses.
7.07 If Lender determines, after review of documentation, that funds
available are not sufficient to complete construction, Disbursing Agent
will not be obligated to disburse funds (if performing that service) until
advised in writing by Xxxxxx as to making that a stipulated disbursement.
7.08 Borrower and Contractor covenant and agree to promptly file
notice to contest any mechanic's lien which may be recorded as provided
under Section 713.22(2) of the Florida Statutes as same relates to
mechanics' liens and will immediately pay for and secure the necessary
recordable satisfaction of lien or will transfer any lien filed on the
property to surety or cash bond as further provided by Section 713.24 of
the Florida Statutes, time being of the essence in this Agreement.
7.09 Disbursing Agent may need to communicate directly with a party
or parties named in the Contractor's and Xxxxxxxx's Statements or who have
given a Notice to Owner. Both Borrower and Contractor authorize Disbursing
Agent to make such contact and inquiries and authorize those parties to
furnish any information requested.
7.10 In consideration of, among other things, Disbursing Agent
entering into this Agreement, Contractor, for himself and for his heirs,
successors, assigns and administrators, hereby agrees to indemnify and hold
Disbursing Agent harmless from any and all losses, cases, damages, expenses
and liabilities, including attorneys' fees, which Disbursing Agent may
incur under the aforementioned commitment or policy and endorsements
thereto, arising form any mechanic's or materialman's lien for labor,
services or material furnished pursuant to Contractor's Construction
Contract with Borrower, or from any erroneous information which Contractor
may have provided Disbursing Agent, or from the breach of any warranty or
covenant or any misrepresentation made by Contractor to Disbursing Agent.
4
and hold Disbursing Agent harmless from any and all losses, cases, damages,
expenses and liabilities, including attorneys' fees, which Disbursing Agent
may incur under the aforementioned commitment or policy and endorsements
thereto, arising form any mechanic's or materialman's lien for labor,
services or material furnished pursuant to Contractor's Construction
Contract with Borrower, or from any erroneous information which Contractor
may have provided Disbursing Agent, or from the breach of any warranty or
covenant or any misrepresentation made by Contractor to Disbursing Agent.
7.11 Because Contractor is an agent of Borrower for purposes of the
construction of the Project, Borrower shall be responsible to Disbursing
Agent for the performance of Contractor's obligations in connection with
the indemnification obligations set forth above. In addition, and in
consideration of, among other things, Disbursing Agent's entering into this
Agreement, Borrower, for itself and for its heirs, successors, assigns and
administrators, hereby agrees to indemnify and hold Disbursing Agent
harmless from any and all losses, costs, damages, expenses and liabilities,
including attorneys' fees, which Disbursing Agent may incur because of
mechanics' liens and materialmen 's liens under said commitment or policy
and endorsements thereto or under this Agreement, or from the breach of any
warranty or covenant or any misrepresentation made to Disbursing Agent by
Borrower.
7.12 Nothing contained in this Agreement shall in any way limit or
diminish the obligations of Borrower or Contractor nor the rights of Lender
as may be contained in the Construction Loan Agreement or any loan
documents related thereto. Disbursing Agent has no responsibility for
determining whether Borrower or Contractor is in full compliance with the
terms of any agreement with Lender or the failure of either party to
perform under such agreements. The funding of any loan proceeds by Lender,
without qualification, unless otherwise made known to Disbursing Agent,
shall be deemed as Disbursing Agent's authorization to proceed to perform
its services and disburse any funds under this Agreement.
7.13 In consideration of, among other things, Disbursing Agent
entering into this Agreement, Disbursing Agent will be paid a fee or fees
by Borrower and such fees must be deemed to have been earned at the time(s)
they we billed and no refund of any fees will be made by Disbursing Agent
in the event this Agreement is terminated. Fees shall be based on services
involved for fundings per the Project Disbursement Schedule attached hereto
as Exhibit "B" Disbursing Agent shall be paid a fee of $125.00 per
disbursement.
BORROWER:
WESTON TOWN CENTER, LLC,
a Delaware limited liability company
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, its sole member
By: ARVIDA/JMB MANAGERS, INC., a
Delaware corporation, its general
partner
By: /s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
5
GENERAL CONTRACTOR:
Xxxxxxx Xxxx, Inc.
By: /s/ Xxxx Xxxxxx
--------------------
Name: Xxxx Xxxxxx
Title: Project Manager
LENDER:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx, V.P.
DISBURSING AGENT:
GOLD COAST TITLE - WEST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------
Title: Manager
--------------------
[ notary public seal ]
/s/ Xxxxx X. Xxx
--------------------
Xxxxx X. Xxx
Dated: 5-18-00
My Commission #CC850026
Expires June 27, 2003
6
FIRST UNION
First Union National Bank
Commercial Real Estate
FL6001
000 Xxxx Xxxxxxx Xxxxxxxxx
0xx Xxxxx
Xx. Lauderdale, FL 33301
May 19, 2000
HAND DELIVERY
-------------
Weston Town Center, LLC
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Re: First Union National Bank ("Lender") to Weston Town
Center, LLC, a Delaware limited liability company
("Borrower") $20,000,000 Construction/Mini-Perm Loan
for "The Shoppes of Town Center"
Dear Xx. Xxxxxxx
This letter shall acknowledge that as of the above date, certain
matters and documents required by the Lender as a condition to making the
above-referenced Loan have not been provided by the Borrower. Such matters
are as follows:
1. Revision to Publix Lease adjusting "[Construction No.]
Commencement Date [by June 19, 2000]."
2. [ Four 1st pages from agreements of General Contractor with
"Blanks" Filled in (by June 19 2000) ]
The Lender has made the Loan to the Borrower on the above date,
notwithstanding the fact that the above-listed matters and documents have
not been provided to the Lender, upon the condition that the Borrower shall
deliver all of the above items in form and content satisfactory to the
Lender on or before the respective dates noted. Other than the Loan
proceeds disbursed as shown on the Closing Statement and other than
disbursements under the Interest Reserve Allocation, no Loan proceeds shall
be disbursed until Lender has completed its Front-End Review and Borrower
has complied with any reasonable requests of Lender for further back-up
required during the course of its Front-End Review. Lender shall use its
best efforts to complete its Front-End Review by May 31, 2000. In the event
that the Borrower fails to deliver the above items in satisfactory form on
or before the respective dates noted, Lender shall have the right, in its
sole discretion, to declare the Loan in default and in such event, to
exercise any and all of the remedies provided to the Lender under any of
the loan documents executed in connection with the Loan.
Weston Town Center, LLC
May 19, 2000
Page 2
Please acknowledge your consent to the terms of this letter by
signing below.
Very truly yours,
First Union National Bank
By: /s/ Xxxxx X. Xxxxxx
Its: Vice President
Date: May 19, 2000
ACKNOWLEDGED AND AGREED TO:
BORROWER:
WESTON TOWN CENTER, LLC, a
Delaware limited liability company
By: ARVIDA/JMB PARTNERS, a
Florida general partnership, its
managing member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
FIRST UNION
First Union National Bank
Commercial Real Estate
FL6001
000 Xxxx Xxxxxxx Xxxxxxxxx
0xx Xxxxx
Xx. Lauderdale, FL 33301
July 25, 2000
2 PAGES
VIA FAX AND U.S. MAIL
---------------------
000-000-0000
------------
Weston Town Center, LLC
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Re: First Union National Bank ("Lender") to Weston Town Center,
LLC, a Delaware limited liability company ("Borrower")
$20,000,000 Construction/Mini-Perm Loan for "The Shoppes
of Town Center"
Dear Xx. Xxxxxxx:
This letter shall acknowledge that as of the above date, certain
matters and documents required by the Lender as a condition to making the
above-referenced Loan have not been provided by the Borrower. Such matters
are as follows:
1. The date for the revision to Publix Lease adjusting
"Construction Commencement Date" is hereby extended to
August 14, 2000.
2. The date for the four (4) first pages of the General
Contractor's Agreement with the "blanks" filled in is hereby
also extended to August 14, 2000.
The Lender has made the Loan to the Borrower on May 19,2000,
notwithstanding the fact that the above-listed matters and documents had
not been provided to the Lender, upon the condition that the Borrower shall
deliver all of the above items in form and content satisfactory to the
Lender on or before the respective dates noted. Lender shall have the
right, in its sole discretion, to declare the Loan in default and in such
event, to exercise any and all of the remedies provided to the Lender under
any of the loan documents executed in connection with the Loan.
Please acknowledge your consent to the terms of this letter by
signing below.
Very truly yours,
First Union National Bank
By: /s/ Xxxxxx Xxxx
Its: Senior Vice President
Date: July 25, 2000
Weston Town Center, LLC
July 25, 2000
Page 2
ACKNOWLEDGED AND AGREED TO:
BORROWER:
WESTON TOWN CENTER, LLC, a
Delaware limited liability company
By: ARVIDA/JMB PARTNERS, a
Florida general partnership, its
managing member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title:
cc: Xxxxx X. Xxxxxx, Esq.
FIRST UNION
First Union National Bank
Commercial Real Estate
FL6001
000 Xxxx Xxxxxxx Xxxxxxxxx
0xx Xxxxx
Xx. Lauderdale, FL 33301
June 21, 2000
VIA UPS OVERNIGHT 000-000-0000
------------------------------
Weston Town Center, LLC
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X Xxxxxxx
Re: First Union National Bank ("Lender") to Weston Town Center,
LLC, a Delaware limited liability company ("Borrower")
$20,000,000 Construction/Mini-Perm Loan for "The Shoppes
of Town Center"
Dear Xx. Xxxxxxx:
This letter shall acknowledge that as of the above date, certain
matters and documents required by the Lender as a condition to making the
above-referenced Loan have not been provided by the Borrower. Such matters
are as follows:
1. The date for the revision to Publix Lease adjusting
"Construction Commencement Date" is hereby extended to
July 17, 2000.
2. The date for the four (4) first pages of the General
Contractor's Agreement with the "blanks" filled in is
hereby also extended to July 17, 2000.
The Lender has made the Loan to the Borrower on May 19, 2000,
notwithstanding the fact that the above-listed matters and documents had
not been provided to the Lender, upon the condition that the Borrower shall
deliver all of the above items in form and content satisfactory to the
Lender on or before the respective dates noted. Lender shall have the
right, in its sole discretion, to declare the Loan in default and in such
event, to exercise any and all of the remedies provided to the Lender under
any of the loan documents executed in connection with the Loan.
Please acknowledge your consent to the terms of this letter by
signing below.
Very truly yours,
First Union National Bank
By: /s/ Xxxxxx Xxxx
Its: Senior Vice President
Date: June 21, 2000
Weston Town Center, LLC
June 21, 2000
Page 2
ACKNOWLEDGED AND AGREED TO:
BORROWER:
WESTON TOWN CENTER, LLC, a
Delaware limited liability company
By: ARVIDA/JMB PARTNERS, a
Florida general partnership, its
managing member
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
