EXHIBIT (g)
CONTRACT FOR SALE AND PURCHASE
LENNAR HOMES, INC. ("Buyer") and ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP
("Seller"), hereby agree that Seller shall sell and Buyer shall buy the
following real property ("Property") upon the terms and conditions of this
Contract for Sale and Purchase ("Contract").
1. DESCRIPTION OF PROPERTY: See Paragraph 37 for the description of the
Property.
2. PURCHASE PRICE AND METHOD OF PAYMENT:
A. Purchase Price....................................$2,451,000.00
B. Initial Deposit and Additional Deposit
in accordance with Paragraph 48.......$ 490,200.00
C. Balance to close in U.S. Dollars, in cashier's check issued by
local financial institution, subject to adjustments and prorations.
3. intentionally omitted.
4. EFFECTIVE DATE: The "Effective Date" of this Contract will be the date when
the last one of the Buyer and Seller has signed this offer.
5. PLACE OF CLOSING: This transaction shall close in Palm Beach County or at
another location acceptable to the parties.
6. intentionally omitted.
7. intentionally omitted.
8. EVIDENCE OF TITLE: (A) Seller shall provide a standard title insurance
commitment ("Commitment") issued by a Florida licensed title insuror agreeing to
issue to Buyer, upon recording of the deed to Buyer, an owner's policy of title
insurance ("Policy") in the amount of the Purchase Price, subject only to those
title exceptions set forth in this Contract or which shall be discharged by
Seller at or before Closing. Seller shall pay the premium for the Policy.
(B) The Commitment shall be brought current to a date subsequent to the
Effective Date. The commitment shall show a marketable title of record in
Seller, in accordance with current title standard adopted by the Florida Bar,
subject to only those title exceptions permitted by this Contract or which shall
be discharged by Seller at or before Closing. At Closing, Seller shall convey to
Buyer a marketable title of record as described in this paragraph.
(C) Seller, at Seller's expense, shall deliver the Commitment to Buyer
within 20 days after the Effective Date. Buyer shall examine the Commitment
within 15 days after receipt thereof, and Buyer shall, within the same 15 day
period, notify Seller in writing of any title defects. If any title defects
render title unmarketable, Seller shall use diligent effort to cure such defects
(including the bringing of unnecessary lawsuits) within 90 days from receipt of
such notice. If Seller shall fail to cure such defects within the 90 day period,
Buyer shall have the option of: (1) accepting title as is; or (2) demanding a
return of the Deposit, in which case, the Deposit shall forthwith be returned to
Buyer, and Buyer and Seller shall be relieved, as to each other, of all
obligations under this Contract.
9. RESTRICTIONS AND EASEMENTS; BUILDING AND ZONING: (A) Buyer shall take title
subject to: (1) zoning restrictions imposed by governmental authority; (2)
restrictions and matters appearing on the plat, or otherwise common to the
subdivision which do not render title unmarketable or adversely affect Buyer's
intended use of the Property; (3) taxes for the year of closing; (4)
restrictions, utility easements and other matters which do not render title
unmarketable or adversely affect Buyer's use of the Property. (B) Seller
warrants that, at the time of Closing, the Property shall not be in violation of
building or zoning codes and that all approvals are consistent with the Buyer's
intended use of the Property which is the construction and sale of single family
homes. If the Property is in violation of such codes, Seller shall pay the
expenses required to bring the Property into compliance with such codes at the
time of Closing. This warranty shall not survive Closing.
10. SURVEY: Buyer, within the time allowed for delivery of the Commitment and
examination thereof, may have the Property surveyed at Buyer's expense. If the
survey shows any encroachment on the Property or that any improvements on the
Property in fact encroach on setback lines, easements, or lands of others, or
violate any restriction, Contract covenant, or applicable governmental
regulation, the same shall be treated as a title defect which renders title
unmarketable.
11. INGRESS AND EGRESS: Seller covenants and warrants that there is ingress and
egress to the Property over public roads.
12. intentionally omitted.
13. intentionally omitted.
14. POSSESSION: Seller warrants and represents that there are not parties in
possession or with a right to possession of the Property other than Seller, and
that Seller shall deliver possession of the Property to Buyer upon Closing.
15. intentionally omitted.
16. intentionally omitted.
17. intentionally omitted.
18. intentionally omitted.
19. CLOSING DOCUMENTS: Seller shall deliver to Buyer at Closing (a) statutory
warranty deed subject to matters contained in Paragraph 9.(A); (b) affidavit
attesting to the absence of liens or potential lienors known to Seller, gap
affidavit, and affidavit of possession; (c) FIRPTA affidavit or exemption
certificate as may be required to exempt Seller or any agent from the income tax
withholding requirements or Seller shall authorize Buyer to withhold the
necessary amount.
20. TITLE INSURANCE AGAINST ADVERSE MATTERS: Buyer shall receive title insurance
against adverse matters pursuant to Section 627.7841 F.S.
21. EXPENSES: State documentary stamps and surtax on deed and the cost of
recording any corrective instruments shall be paid by Seller. The cost of
recording the deed shall be paid by Buyer.
22. PRORATIONS: All prorations shall be made as of midnight of the day preceding
the Closing. Taxes shall be prorated based on the current year's tax with due
allowance being made for the maximum allowable discount. If Closing occurs on a
date when the current year's assessment is not available, then taxes shall be
prorated on the prior year's tax. However, any tax proration based on an
estimate may at the request of either party be subsequently readjusted upon
receipt of the tax xxxx, and a statement to that effect will be set forth on the
closing statement.
23. SPECIAL ASSESSMENT LIENS: Certified, confirmed and ratified special
assessment liens as of Closing are to be paid by Seller. Pending liens as of
Closing shall be assumed by Buyer, provided, however, that where the improvement
has been substantially completed as of the Effective Date, such pending lien
shall be considered as certified or ratified and Seller shall, at Closing, be
charged an amount equal to the last estimate by the public body of the
assessment for the improvements.
24. intentionally omitted.
25. PERSONS BOUND; GENDER; FLORIDA LAW: The benefits and obligations of this
Contract shall enure to and bind the respective heirs, personal representatives,
successors and assigns of the parties hereto. Whenever used, the singular shall
include the plural, the plural the singular, and the use of any gender shall
include all genders. This Contract shall be governed by the laws of the State of
Florida.
26. DEFAULT: If Buyer fails to perform this Contract within the time specified
(including the payment of the Deposit), the Deposit made, or agreed to be made
by Buyer, may be retained or recovered by or for the account of Seller as agreed
upon liquidated damages as consideration for the execution of this Contract and
in full settlement of Seller's claims, whereupon Buyer and Seller shall be
relieved, as to each other, of all obligations under this Contract; this shall
be Seller's sole remedy. If, for any reason other than failure of Seller to make
Seller's title marketable after diligent effort, Seller fails, neglects or
refuses to perform this Contract, Buyer may seek specific performance or elect
to receive the return of Buyer's Deposit without thereby waiving any action for
damages resulting from Seller's breach.
27. ATTORNEY'S FEES AND COSTS: In connection with any litigation (including all
appeals and interpleaders) involving Seller, Buyer, or broker arising out of
this Contract, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorney's fees at trial and appellate levels.
28. ASSIGNABILITY: Buyer may not assign this Contract without the written
consent of Seller except assignments to a wholly owned subsidiary of Buyer or to
Lennar Corporation.
29. TIME: Time is of the essence for all provisions of this Contract.
30. ENTIRE AGREEMENT; TYPEWRITTEN OR HANDWRITTEN PROVISIONS; NOT RECORDABLE:
This Contract, including any exhibits and riders attached, set forth the entire
agreement between Buyer and Seller and contains all the covenants, promises,
agreements, representations, conditions and understandings. Typewritten or
handwritten provisions inserted in this Contract or attached hereto as exhibits
or riders shall control all printed provisions in conflict therewith. Neither
this Contract nor any notice of it, shall be recorded in any public records.
31. RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your local public health
unit.
32. WARRANTY: Seller warrants and represents that there are no facts known to
Seller which materially affect the value or desirability of the Property which
are not readily observable by Buyer or which have not been disclosed to Buyer.
33. intentionally omitted.
34. intentionally omitted.
35. intentionally omitted.
36. intentionally omitted.
37. DESCRIPTION OF PROPERTY: The Property being sold and purchased pursuant to
this Contract is eighty-six (86) single family home lots (the "Lots") located in
the Xxxxxxx xx Xxxxx Xxxx Xxxxx, Xxxxxxx, described as Lots 1 through 86,
inclusive, in "Crestwood Xxxx 0 - Xxxx Xxxxx" according to the plat thereof
recorded or to be recorded in the Public Records of Palm Beach County, Florida.
38. INVESTIGATION PERIOD: Buyer shall have 45 days from the Effective Date to
investigate the suitability of the Property for Buyer's purposes and to procure
an environmental audit. If for any reason Buyer is dissatisfied with its
investigation, Buyer shall have the right at any time during said 45-day period
to cancel this Contract, in which event the Deposit will be refunded to Buyer
and the parties released of all rights and obligations hereunder. Buyer shall be
deemed to have waived its right of cancellation if not exercised by Buyer giving
Seller written notice thereof during such 45-day period. Seller will provide
Buyer with any documents requested by Buyer relating to the Property which are
in Seller's possession. If Buyer does not exercise its right of cancellation,
Buyer shall be deemed have agreed to purchase the Property subject only to
Seller's obligations set forth in this Contract.
39. SITE PLAN AND PLAT APPROVALS: Seller represents that Seller has received
from the Village of Royal Palm Beach site plan approval for the subdivision
described in paragraph 37. Seller agrees to obtain final plat approval within
sixty (60) days after the Effective Date and to record the plat within 30 days
after such approval. Copies of the site plan and plat are attached hereto as
Exhibit "A".
40. SUBDIVISION IMPROVEMENTS/INDIAN TRAIL WATER CONTROL DISTRICT ASSESSMENTS:
Seller shall construct and pay for (i) all the subdivision improvements for the
Property shown on the plans attached hereto as Exhibits B, C, and D, (ii) any
other subdivision improvements (except house pads) and bonds required by the
Village of Royal Palm Beach as a condition of plat approval, and (iii) all
landscaping and entranceway improvements shown on the plans attached hereto as
Exhibit D. Seller agrees that all utilities, including sewer, water, electric
and telephone, will be installed to the locations on the Property as shown on
the above-described plans. Buyer understands and agrees that lots will not be
filled to grade or fully cleared, but Seller will provide sufficient clean sand
fill stockpiled on or within 2,000 feet of the Property on paved roads to fill
the lots to 8" below fixed floor. At Seller's option, payment for the
improvements described above may be provided in whole or in part from the
proceeds of bonds issued for such purpose by the Indian Trail Water Control
District ("District"), which bonds would be paid from assessments on the Lots
within the Subdivision. With respect to such assessments, Buyer agrees to
include in all lot sales contract it enters into with prospective purchasers,
immediately prior to the space reserved in the contract for the signature of the
purchaser, the following disclosure statement in boldfaced and conspicuous type
which is larger than the type in the remaining text of the contract: INDIAN
TRAIL WATER CONTROL DISTRICT IMPOSES TAXES OR ASSESSMENTS, OR BOTH TAXES AND
ASSESSMENTS, ON THIS PROPERTY THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND
ASSESSMENTS PAY THE CONSTRUCTION, OPERATION AND MAINTENANCE COSTS OF CERTAIN
PUBLIC FACILITIES OF THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF
THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO ALL OTHER TAXES AND
ASSESSMENTS PROVIDED BY LAW. Buyer consents to the District's recording in the
Public Records of Palm Beach County an assessment disclosure statement. Title to
the lots will be conveyed by Seller to Buyer subject to such assessment rights
of the District. Seller represents to Buyer that assessments for construction
debt, which will be determined at the time the bonds are issued by the District,
will not exceed $600.00 per year per lot. In the event assessments will exceed
$600.00 per year per lot, Seller will promptly notify Buyer and Buyer may either
cancel this Contract or elect to deduct from the purchase price of each lot at
time of closing an amount equal to the excess above $600.00 per year for the
remainder of the assessment term. Seller will pay the costs of any of the
improvements described above which are not paid from the District bond proceeds.
41. COMMENCEMENT AND COMPLETION OF SUBDIVISION IMPROVEMENTS: (A) Seller must use
all reasonable efforts to commence construction of the subdivision improvements,
but if for any reason Seller fails to commence construction within ninety (90)
days from the Effective Date, then Seller shall notify Buyer within seven (7)
days of such failure, and either party may then cancel this Contract by giving
written notice to the other party within thirty (30) days after such notice,
whereupon the Deposit shall be returned to Buyer and the parties shal1 be
released of all obligations and liabilities hereunder. Provided, however, Buyer
at Buyer's sole option may extend said date for commencement of construction by
up to two (2) three (3) month extentions by giving written notice to Seller,
which notice must be given within seven (7) days after the above-described
notice by Seller of failure to commence construction. If construction is not
commenced by said extended date, either party may then cancel this Contract.
(B) Seller must use all reasonable efforts to complete construction of the
subdivision improvements, but in the event that completion and acceptance by the
Village is not achieved within two hundred forty (240) days from the Effective
Date, Seller shall notify Buyer within seven (7) days of such failure, and Buyer
as its sole remedy may cancel this Contract, whereupon the Deposit shall be
returned to Buyer and the parties shall be released of all obligations and
liabilities hereunder. Provided, however, Buyer at Buyer's sole option may
extend said date for completion and acceptance of construction by up to two (2)
three (3) month extentions by giving written notice to Seller, which notice must
be given within seven (7) days after the above-described notice by Seller of
failure to complete construction. Provided further, however, if completion and
acceptance is delayed for reasons beyond delays, Seller shall have the right to
extend the applicable achievement date for a period of time equal to the
delay(s). In any event, if completion and acceptance is not achieved by August
15, 1997, this Contract shall be deemed canceled, whereupon the Deposit shall be
returned to Buyer and the parties shall be released of all obligations and
liabilities hereunder.
(C) If Buyer exercises the option herein to purchase the two model lots prior to
completion of the subdivision improvements and acceptance by the Village, and if
this Contract is thereafter canceled pursuant to paragraph (A) or (B) above,
then Seller shall purchase each model from Buyer (including the lot) for
$100,000.00 each if undecorated and $150,000.00 each if decorated.
(D) Notwithstanding the provisions of Paragraph 43 conditioning the sale of
certain lots on completion and acceptance of the subdivision improvements, Buyer
may at its option purchase and close on lots prior to the subdivision
improvements being completed and accepted by the Village of Royal Palm Beach. In
such event, the net proceeds realized by Seller from such sale (i.e., the sale
price minus the mortgage release price, normal closing expenses, and brokers'
commission) shall be held in escrow by Seller's attorney or another mutually
acceptable escrow agent, and disbursed to Seller upon the subdivision
improvements being completed and accepted by the Village.
The subdivision improvements are being financed by the District and Union Bank
of Florida. Buyer will be given a copy of the financing agreement within twenty
(20) after the Effective Date.
42. ACCESS TO THE PROPERTY: Buyer shall have the right to enter upon the
Property to perform surveys, engineering studies, inspections, and test borings.
Buyer agrees to indemnify and hold Seller harmless from and against any loss,
damage, claim, demand or liability with respect to any injury to person or
property caused by entry upon the Property by Buyer or its representatives,
agents or employees. The provisions of this paragraph shall survive this
Contract.
43. SCHEDULE OF LOT PURCHASES: The purchase price of $2,451,000.00 for the 86
lots is based upon a price of $28,500.00 for each lot. Buyer shall close on the
purchase of the lots at the aforementioned price per lot in accordance with the
following schedule:
(a) Buyer shall have the option of purchasing two (2) contiguous model
lots, namely, Lots 65 and 66 after Seller has commenced construction of the
subdivision improvements.
(b) Lots 67 through 72 and 27 through 41, within 20 days after written
evidence from Seller to Buyer that the subdivision improvements have been
completed and accepted by the Village of Royal Palm Beach.
(c) Lots 73 through 75, 42 through 52, and 15 through 21, during the
first six (6) month period following the closing on the initial 21 lots
described in (b) above.
(d) Lots 1 through 14 and 53 through 59, during the second (6) month
period following the closing on the initial 21 lots described in (b) above.
(e) Lots 60 through 64, 76 through 86, and 22 through 26, during the
third six (6) month period following the closing on the initial 21 lots
described in (b) above.
(f) The lots to be closed during each such period shall close at the
same time. If Buyer closes on more than 21 lots during any period, the excess
shall be credited against the minimum for the next succeeding period.
Buyer agrees that it shall not sell lots to another builder until
Seller has sold and conveyed all the lots in the adjoining subdivision known as
"Crestwood Unit 3 - Plat Two."
If between the Effective Date and the date that Buyer closes on the
purchase of the last of the 86 lots (or the sooner termination of this Contract
in accordance with the provisions hereof), Seller receives a written offer(s) to
purchase lots in "Crestwood Unit 3 - Plat Two" at a price below $28,500.00 per
lot, which offer Seller desires to accept, Buyer shall have a first right of
refusal to purchase such lots at the same price and upon the same terms and
conditions as contained in the offer. Seller will deliver to Buyer a copy of
such acceptable offer, and Buyer must notify Seller of its election to purchase
within five (5) days after delivery, otherwise Buyer shall be deemed to have
waived its first right of refusal with respect to said offer.
44. HOMEOWNERS ASSOCIATION: Buyer will receive the homeowners' association
documents and budget applicable to the Property, which Buyer shall review during
the investigation period. If Buyer does not exercise its right of cancellation
during the investigation period, Buyer will be deemed to have approved such
documents. Seller shall execute and record the aforesaid homeowners' association
documents in the Public Records of Palm Beach County prior to closing on the
first lots. Title to the lots will be conveyed by Seller to Buyer subject to
said recorded documents.
45. ARCHITECTURAL APPROVAL: No home may be constructed on any lot until the
plans and specifications for the home, the landscape plan, and the location of
the home on the lot have been approved in writing by Seller. Any approvals shall
be made promptly and not unreasonably withheld. Buyer will submit architectural
elevations and plans to Seller during the Investigation Period to receive an
approval for the 86 lots. Buyer's failure to comply the architectural control
restriction set forth above will entitle Seller to exercise any and all remedies
allowed in law or equity.
46. REAL ESTATE BROKER: Seller and Buyer represent and warrant to each other
that neither of them has dealt or consulted with any real estate brokers,
salesmen or finders in connection with this transaction, except RTL Realty,
whose commission shall be Seller's obligation. Seller and Buyer hereby mutually
agree to indemnify, save and hold each other harmless from and against any and
all losses, damages, claims, costs and expenses (including attorney's fees and
expenses) in any way resulting from or connected with any claims or suits for a
broker's or salesman's commission, finder's fee or other like compensation, made
or brought by any person or entity resulting from its own acts, except as
aforesaid. This provision shall survive closing.
47. NOTICES: Any notices required to be given by the terms of this Contract or
under any applicable law by either party shall be in writing and shall be either
hand-delivered or sent by certified or registered mail, postage prepaid, return
receipt requested, or sent via Federal Express or other similar courier service,
and such notice shall be deemed to have been given when postmarked, when
hand-delivered or when sent via courier service in accordance with the terms of
this paragraph. Such written notice shall be addressed as follows:
To Buyer: Lennar Homes, Inc.
00000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
with copies to
Xxxxxx Xxxxxx
000 X.X. 000 Xxxxxx
Xxxxx, Xxxxxxx 00000
Xxxx Xxxxxxx
0000 X. Xxxxx Xxxx 00
Xxxxx, Xxxxxxx 00000
To Seller: Royal Palm Beach Colony, Limited
Partnership
c/o Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx #000
Xxxxx Xxxxxx, Xxxxxxx 00000
with copy to
Xxxxxx Xxxxxxx
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000
48. DEPOSIT: Upon execution of this Contract by both parties, Buyer shall
deliver to Seller an unconditional letter of credit, effective for a period of
twenty four (24) months, in the amount of $100,000.00 representing Seller's
initial Deposit. A copy of the letter of credit is attached hereto as Exhibit
"E". Seller acknowledges receipt of the original letter of credit. Within three
business days after the end of the investigation period, if Buyer has not
elected to cancel this Contract, Buyer shall increase the letter of credit to
$490,200.00. The letter of credit will be from Universal American Mortgage
Company naming Seller as beneficiary.
In the event that Seller determines that Buyer is in default, Seller may convert
the Deposit into cash by drawing the funds under the letter credit. Within five
business days after receiving the funds, Seller shall give Buyer written notice
that the Deposit has been converted to cash and describing the nature of the
default. Seller agrees to keep the funds in a separate escrow account for a
period of 30 days after giving such written notice. If Buyer files and serves a
lawsuit on Seller contesting the default within said 30-day period, Seller shall
continue to hold the funds in the escrow account pending court order. If the
letter of credit will expire at any time prior to the closing on the last lots,
Buyer agrees to obtain an extension of the term of the letter of credit and
deliver proof thereof to Seller no later than 30 days before its expiration. The
parties agree that the letter of credit shall be reduced by 20 percent of the
purchase price of the lots being purchased at each takedown, and the amount of
the Deposit shall be reduced accordingly.
49. HAZARDOUS MATERIALS: Seller represents to the best of its knowledge that
there are no hazardous materials or residual contamination in, on, under or
about, the Property. Hazardous materials shall include any substances regulated
under any and all Federal, State and local statutes and laws, including case
law.
50. MORATORIUM: As condition precedent to closing, there shall be no moratorium
of any kind relating to the Property. This will include any moratoriums on water
or sewer connections, building permits, certificates of occupancy, or building
inspections. In such event the closing will be postponed for up to thirty (30)
for the moratoriums(s) to be removed, failing which this Contract shall
terminate and the parties released of all liability and obligations hereunder.
Provided, however, Buyer may elect two (2) ninety (90) day further extentions of
the closing.
51. REPRESENTATIONS AND WARRANTIES: Seller hereby warrants, covenants and
represents the following to Buyer with full knowledge that Buyer is relying upon
same in executing this Contract and performing hereunder.
A. Seller has full power and authority to make, deliver, enter into and
perform pursuant to the terms and conditions of this Contract and has taken all
necessary action to authorize the execution, delivery and performance of the
terms and conditions of this Contract and all documents to be executed and
delivered by Seller pursuant hereto. There are no actions, suits or proceedings
pending or threatened against by or affecting Seller in any court or before any
governmental agency relating to the Property, the ownership of the Property, or
Seller's ability to convey the Property.
B. This Contract and the documents to be executed and delivered by
Buyer and Seller in connection with this Contract will not breach the terms and
conditions of or cause a default in any mortgage, restrictive covenant or
easement, or any other agreement or document encumbering or affecting the
Property.
C. Seller has received no notice of any change contemplated in any
applicable laws, ordinances, or restrictions, or of a judicial or administrative
action (except those of a general application) or of any action by adjacent
landowners, which would prevent, limit or impede Buyer's use of the Property for
single family residential use.
D. Seller has received no notice of any violation or any applicable
laws, ordinances, regulations, statutes, rules and restrictions pertaining to
and affecting the Property.
E. No approval(s) or consent(s) by third parties or governmental
authorities are required in order for Seller to convey the Property as
contemplated hereby.
F. There is sewer and water available in sufficient capacity to service
the entire Property. The sewer and water lines will be of sufficient size to
service the Property.
Each of the foregoing warranties, covenants and representations shall
be true and correct at closing and shall survive the closing. In the event that
any of the warranties and representations are not correct or as represented by
Seller, and Seller fails to remedy same within thirty (30) days after written
notice from Buyer, then Buyer may, at its option, elect to cancel and terminate
this Contract, whereupon the Escrow Agent shall return the Deposit delivered to
it by Buyer and the rights and obligations of the parties each to the other with
respect to this transaction shall cease and terminate. Seller agrees to
cooperate fully with Buyer, at no cost to Seller, in its examination and
verification of Seller's warranties and representations.
52. CONDITIONS PRECEDENT TO CLOSING: Buyer's obligation to close pursuant to
this Contract is conditioned on the following:
A. No material adverse change in the condition of the Property shall
have occurred since the date of this Contract.
B. As of closing, there shall be no governmental prohibition (including
zoning restrictions or conditions) that prevents Buyer from receiving building
permits for construction of the intended improvements.
C. As of the closing, there shall be no (i) leases or other occupancy
agreements, or (ii) contracts for labor or service that affect the Property.
D. All of Seller's covenants and obligations contained in this Contract
shall have been performed by Seller, and all of Seller's warranties and
representations are true and correct and shall be true and correct at closing.
E. No condemnation proceedings or any other matters which might have a
material adverse effect on the value of the Property shall be pending or
threatened against the Property at the closing.
F. Any and all permits, licenses, or qualifications from any Federal,
State or other local governmental agencies having jurisdiction over the
Property, required for the development of the Property and construction of
Buyer's model homes shall be obtained or obtainable.
G. Seller gives to Buyer evidence that its development loan financing
is in a position to be funded and that the District Bonds have been sold and the
proceeds thereof are available to pay for the subdivision improvements required
to be constructed in accordance with paragraph 40 hereof.
H. Water and sewer shall be available to the Property pursuant to an
agreement with the governmental agencies having jurisdiction and all other
utilities shall be available to the Property.
If any of the conditions precedent to Buyer's obligation have not been
satisfied, Buyer may cancel this Agreement by notifying Seller (unless Seller
shall satisfy the condition precedent within thirty (30) days after such
notice), in which event Seller shall return the Deposit to Buyer. Buyer may
waive, at Buyer's option and in Buyer's sole discretion, any of the conditions
precedent to Buyer's obligation to close.
ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP
Date signed: By: s/xXxxxx Xxxxxx
August 12, 1996 ---------------
Xxxxx Xxxxxx, as Authorized Agent of
Xxxxx Management Company, Inc.,
Managing General Partner
LENNAR HOMES, INC.
Date signed: By: /s/Xxx Xxxxxx
August 9, 1996 -------------
Xxx Xxxxxx
Vice President
EXHIBIT (h)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of the 26th day of
June, 1995 (the "Amendment"), is made by and between Royal Palm Beach Colony,
Limited partnership, a Delaware Limited Partnership (hereinafter referred to as
"BORROWER"), and Union Bank of Florida ("Bank" or "Lender").
RECITALS
A. Borrower has applied to Bank for a future advance of $1,200,000.00
("Future Advance") to the Note secured by the Mortgage in the original principal
amount of $975,000.00 to be advanced by Bank pursuant to the terms hereof and
evidenced by notes described in the First Mortgage Modification Agreement
executed this date by the Bank and Borrower.
B. Bank is willing to make the Loan modification described above based on
the terms and conditions set forth in this Amendment.
NOW, THEREFORE for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Bank hereby agree as
follows:
2. The term "Loan" shall be in the amount of $2,175,000.00.
3. The term "Improvements" shall include the on-site infrastructure lot
improvements to be constructed with the proceeds of the Future Advance.
4. The term "Use of Proceeds" shall mean the permitted use of the Loan
proceeds under the Note as set forth in the Loan Agreement. Exhibit "C" of the
Loan Agreement shall be hereby deleted.
5. The term "Note" shall include the Future Advance Promissory Note (For
Non-Revolving Line of Credit) of even date herewith in the amount of
$1,200,000.00) and the Consolidation Promissory Note (For Non-Revolving Line of
Credit) of even date herewith in the amount of $2,175,000.00.
4. The release price as set forth in paragraph 5.26 shall be amended from
$10,000.00 to $20,000.00 per developed lot.
6. A commitment fee in the amount of $19,500.00 (two percent (2%) computed
on $975,000.00) is due from Borrower and earned upon closing of the Future
Advance whether or not any disbursements are made thereunder.
If Borrower draws Loan proceeds under the Future Advance beyond
$975,000.00 ("Excess Funding"), additional commitment fees of two percent (2%)
based on the amount of such Excess Funding shall be due and owing at the time
draws representing such Excess Funding disbursed by Lender.
7. The parties agree that the mortgagee title insurance for the Future
Advance shall be in the amount of $975,000.00 but such insurance shall be
increased and paid for by the Borrower in the event of any Excess Funding to the
Borrower up to the future advance amount of $1,200,000.00.
8. The maturity date of the Loan shall be July 1, 1997.
9. Borrower agrees to give Lender immediate written notice upon the
recording of the Plats for Phases I, II and III.
10. Borrower shall be in default under the Loan if Borrower fails to
record the Plats for Phases I, II and III prior to the date upon which such
Plats (the preliminary approved plats for such phases having been submitted to
Bank by the date of this Amendment) expire with Palm Beach County, Florida.
11.The parties hereto agree that no funding of Future Advance proceeds for
Phase I (except for the closing costs associated with the closing of the Future
Advance set forth on the Closing Statement made this date) shall be made by Bank
until Borrower has submitted to Bank all permits and necessary governmental
authorizations (including Plat recordation and site plan approval) for the
construction of the on-site infrastructure lot improvements; provided Bank with
proof that the off-site improvements constructed with the original proceeds of
the Loan have been accepted by the appropriate governmental authorities; and
provided proof that the 1994 real estate taxes have been paid for the Property.
Likewise, no funding of Future Advance proceeds for Phases II and III shall be
made by Bank until such Plats have been recorded, site plans have obtained final
approval by the governmental authorities and all of the permits and governmental
authorizations as described above have been obtained by Borrower and provided to
Bank.
12. All other terms and conditions of the Loan Agreement shall be amended
consistent with the matters set forth above.
IN WITNESS WHEREOF, Borrower and bank have executed this Amendment as of the
above written date by their respective officers all duly authorized thereunto.
Signed, sealed and delivered
in the presence of: "BORROWER"
ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
BY: XXXXX MANAGEMENT COMPANY, INC., a Florida
corporation, Managing General Partner
By: /s/Xxxxxx X. Xxxx
-----------------
Xxxxxx X.Xxxx, President
(seal)
/s/Xxxx Xxxxxx
-------------------
Xxxx Xxxxxx
/s/Xxxxxx Xxxxxxx
-------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
"LENDER"
Union Bank of Florida
/s/Xxxx Xxxxxx
------------------- BY: /s/Xxxx Xxxxxx, Sr.
Xxxx Xxxxxx -------------------
Xxxx Xxxxxx, Sr. Vice President
/s/Xxxxxx Xxxxxxx
-------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Prepared by:
Xxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx/BM
Xxxxx 0000
Xxx Xxxx Xxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
000-000-0000
FIRST MORTGAGE MODIFICATION AGREEMENT
THIS AGREEMENT is made this 26th day of June, 1995 by and between Royal
Palm Beach Colony, Limited Partnership, a Delaware Limited Partnership, whose
address is 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to
as "Borrower") and Union Bank of Florida, with its offices at 0000 Xxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower executed a Promissory Note ("Note") in favor of Lender
dated October 6, 1994 in the original principal amount of $975.000.00 which Note
was secured by a Real Estate Mortgage, Assignment and Security Agreement of even
date therewith ("Mortgage") given by Borrower in favor of Lender recorded in
Official Records Book 9464, at Page 1619, of the Public Records of Palm Beach
County, Florida, encumbering the property described therein ("Property"):
WHEREAS, the Loan is additionally secured by certain other documents
including but not limited to UCC-1 Financing Statement(s), filed in the Public
Records of Palm Beach County, Florida and with the Secretary of State of Florida
(jointly and severally referred to as the "Loan Documents or "Security
Documents"); and
WHEREAS, the Note, Mortgage and Security Documents are further subject to
an unrecorded Loan Agreement ("Loan Agreement") dated October 6, 1994; and
WHEREAS, the principal balance that is outstanding under the Loan as of
the date hereof is $975,000.00 plus accrued interest thereon; and
WHEREAS, Borrower represents to Lender that it is the fee simple owner of
the Property described in the Mortgage; and that there are no inferior mortgages
or other liens or encumbrances now outstanding against the Property except as
permitted by the terms of the Loan Agreement, and that the lien of said Mortgage
held by Lender is a valid first subsisting lien on the Property.
WHEREAS, the parties hereto desire to increase the amount of the Note and
Mortgage by $1,200,000.00 such that the total secured under such Loan would be
$2,175,000.00 and to modify certain terms and conditions of the Loan Agreement;
and
NOW, THEREFORE, in consideration of these premises, TEN AND NO/100 DOLLARS
($10.00) and the mutual covenants contained herein, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein
by reference.
2. The outstanding principal balance of the Loan as of the date of this
Agreement is $975,000.00.
3. The Borrower this date has executed a Future Advance Promissory Note
(For Non-Revolving Line of Credit) in the amount of S1,200,000.00, and a
Consolidation Promissory Note (For Revolving Line of Credit) in the amount of
$2,175,000.00, evidencing the total indebtedness under the Loan which shall be
secured by the Mortgage and Security Documents. [The foregoing notes hereinafter
included in the term "Note".]
4. Borrower and Lender have this date executed a First Amendment to Loan
Agreement which shall be incorporated by reference into the Loan Agreement and
the Security Documents.
5. The maturity date of the Loan shall be extended to July 1, 1997.
6. The Maximum Possible Principal Debt, including future advances, which
may be secured by the Mortgage shall be increased from $1,950,000.00 to two (2)
times the amount of the indebtedness secured thereby.
7. All of the Property shall remain in all respects subject to the lien,
charge and encumbrance of said Mortgage in favor of Lender, and nothing herein
contained, and nothing done pursuant hereto, shall affect or be construed to
affect the lien, charge or encumbrance of, or warranties title in, or conveyance
affected by said Mortgage, or the priority thereof over other liens, charges or
encumbrances or conveyances, or to release or affect the liability of any party
or parties who may now or hereafter be liable under or on account of said
Mortgage, or the Note secured thereby; nor shall anything herein contained or
done in pursuance hereof affect or be construed to affect any other security or
instrument, if any, held by Lender as security for or evidence of the aforesaid
indebtedness.
8. The Borrower hereby ratifies and re-affirms all of the terms and
conditions of the Note, Mortgage, Security Documents and Loan Agreement as
modified herein, and Borrower does hereby acknowledge, certify, affirm and
represent with full knowledge that Lender is acting in reliance thereon in the
execution of this Agreement; that there are no claims, offsets, breaches of any
agreement, document or writing relating directly or indirectly to the loan
evidenced by the Note; no matter, item or thing that would diminish or reduce
the amount owed under the Note; or any action or causes or action by the
Borrower or any person dealing with the Borrower against Lender directly or
indirectly relating to the loan evidenced by the Note and the Borrower affirms
there is no offset or defense as to the indebtedness owed as of this date and
that Borrower is not in default of the Note, Mortgage, Security Documents or
Loan Agreement as of this date. Borrower further acknowledges that all
representations and warranties made by the Borrower in the loan documents remain
true and correct as of this date.
9. Borrower agrees to pay all fees and costs related to the recording of
this Agreement and as set forth by Lender.
10. Except as modified herein, the Mortgage, Security Documents and Loan
Agreement shall remain in full force and effect according to their terms and if
there is any conflict in the terms of this Agreement and the aforedescribed
documents, the terms of this Agreement shall apply.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first set forth above.
Signed, sealed and delivered
in the presence of: "BORROWER"
ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
BY: XXXXX MANAGEMENT COMPANY, INC., a Florida
corporation, Managing General Partner
By: /s/Xxxxxx X. Xxxx
-----------------
Xxxxxx X.Xxxx, President
(seal)
-------------------
Printed Name:
-------------------
Printed Name:
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
"LENDER"
Union Bank of Florida
------------------- BY: /s/Xxxx Xxxxxx, Sr.
Printed Name: -------------------
Xxxx Xxxxxx, Sr. Vice President
-------------------
Printed Name:
Address: 0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(seal)
STATE OF FLORIDA
COUNTY OF :ss
The foregoing instrument was acknowledged before me this _ day of , 1995 by
Xxxxxx X. Xxxx as President of XXXXX MANAGEMENT COMPANY, INC. a Florida
corporation, as Managing General Partner of ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited Partnership, on behalf of the Limited
Partnership. He is known to me or has produced a _____________as identification.
----------------------
Notary Public
(Seal)
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this ______ day of
___________, 1995 by Xxxx Xxxxxx, Sr. Vice President of Union Bank of Florida on
behalf of the Bank. He is known to me or has produced a Florida driver's license
as identification.
Notary Public (Seal)
Borrower's Taxpayer
Identification No. 00-0000000
CONSOLIDATED PROMISSORY NOTE
(For Non-Revolving Line of Credit)
$2,175,000.00 May _ , 0000
Xxxx Xxxxxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP, a
Delaware Limited Partnership, (sometimes hereinafter referred to as the
"undersigned" or the "Borrower"), promises to pay to the order of Union Bank of
Florida, or any subsequent holder of this note ("Bank") at its principal offices
located at Plantation, Florida (or at such other place or places as Bank may
designate) the principal sum of Two Million one Hundred Seventy Five Thousand
and No/100 Dollars ($2,175,000.00) or so much thereof as may be from time to
time outstanding, plus interest thereon at the Rate hereinafter defined, all in
accordance with the terms and conditions of this Promissory Note (the "Note")
and in accordance with the Loan Agreement dated October 6, 1994, as amended, by
and between Borrower and Bank (the "Loan Agreement"). This Note is secured by a
Real Estate Mortgage, Assignment, and Security Agreement dated October 6, 1994
filed for record in the public records of Palm Beach County, Florida, as amended
(the "Mortgage"), UCC Financing Statements filed for record in the public
records of Palm Beach County, Florida, and in the Office of the Secretary of
State of the State of Florida (the "Financing Statements"), and other written
agreements by and between Borrower and Bank. The Mortgage and such other
agreements are hereinafter referred to collectively as the "Security Documents".
Terms used herein but not otherwise defined hereunder are defined as set forth
in the Security Documents or the Loan Agreement. All of the terms, definitions,
conditions and covenants of the Loan Agreement and the Security Documents are
expressly made a part of this Note by reference in the same manner and with the
same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Loan Agreement and the
Security Documents. Subject to the terms and conditions of this Note and the
Security Documents, Bank shall advance funds to Borrower pursuant to the terms
of the Loan Agreement.
l. Prime Rate. For purposes hereof, "Prime Rate" means the highest
fluctuating rate of interest per annum as published by the "Wall Street
Journal."
2. Interest. The outstanding Loan principal balance shall bear interest at
a variable rate per annum equal to the Prime Rate plus two percent (2.0%). The
interest rate hereunder shall be adjusted daily in accordance with fluctuations
in the Prime Rate. Interest shall be computed on the basis of a daily amount of
interest accruing on the daily outstanding principal balance during a 360-day
year multiplied by the actual number of days the principal is outstanding during
such applicable interest period.
3. Payment of Interest. Interest accrued in accordance with this Note
shall be due and payable monthly, in arrears, on the first day of each month
immediately following the calendar month for which said interest has accrued.
All accrued but unpaid interest shall be due and payable in full on the Maturity
Date, as defined in Paragraph 6 below.
All payments of principal and interest shall be made in lawful currency of
the United States of America which shall be legal tender in payment of all
debts, public and private, at the time of payment.
4. Prepayment. This Note may be prepaid in whole or in part at any time
without fee, premium or penalty. Any partial prepayment shall be applied in
accordance with paragraph 10 below and shall not postpone the due date of any
subsequent periodic installments or the Maturity Date, or change the amount of
such installments due, unless Bank shall otherwise agree in writing.
5. Late Charges. Should Borrower fail to pay the installments of
interest or principal (if applicable) on any due date provided for herein, then
Borrower further promises to pay a late payment charge equal to five percent
(5%) of the amount of the unpaid installment as liquidated compensation to Bank
for the extra expense to Bank to process and administer the late payment,
Borrower agreeing, by execution hereof, that any other measure of compensation
for a late payment is speculative and impossible to compute. This provision for
late charges shall not be deemed to extend the time for payment or be a "grace
period" or "cure period" that gives Borrower a right to cure a Default or
Default Condition. Imposition of late charges is not contingent upon the giving
of any notice or lapse of any cure period provided for in the Mortgage and shall
not be deemed a waiver of any right or remedy of Bank, including without
limitation, acceleration of this Note.
6. Maturity Date. The then outstanding principal balance plus all accrued
but unpaid interest shall be due and payable on July 1, 1997 (the "Maturity
Date").
7. Default. Any failure of Borrower to comply with any term, covenant, or
condition of this Note, including without limitation, Borrower's failure to pay
principal, interest, or expenses when same shall become due, or the existence of
any Default Condition or Default under the Security Documents or Loan Agreement
shall be deemed, at the option of Bank, a Default under this Note.
a. Acceleration. Upon the occurrence of a Default hereunder or under the
terms of any one or more of the Security Documents or the Loan Agreement, Bank
may declare the then outstanding principal and all accrued but unpaid interest
immediately due and payable and upon acceleration and thereafter this Note shall
bear interest at the Default Rate, hereinafter defined, until all indebtedness
evidenced hereby and secured by the Security Documents has been paid in full.
Further, in the event of such acceleration, the Loan, and all other indebtedness
of Borrower to Bank arising out of or in connection with the Loan shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by Borrower.
9. Default Rate. After default or maturity or upon acceleration, and
thereafter, the unpaid indebtedness then evidenced by this Note and due under
and secured by the Security Documents shall bear interest at a fixed rate equal
to the maximum rate then permitted under applicable law.
10. Application of Payments. A11 sums received by Bank for application to
the Loan may be applied by Bank to late charges, expenses, costs, interest,
principal, and other amounts owing to Bank in connection with the Loan in the
order selected by Bank in its sole discretion.
11. Expenses. In the event this Note is not paid when due on any stated or
accelerated maturity date, or should it be necessary for Bank to enforce any
other of its rights under the Loan Documents, Borrower will pay to Bank, in
addition to principal, interest and other charges due hereunder or under the
other Loan Documents, all costs of collection or enforcement, including
reasonable attorneys' fees, paralegals' fees, legal assistants' fees, costs and
expenses, whether incurred with respect to collection, litigation, bankruptcy
proceedings, interpretation, dispute, negotiation, trial, appeal, defense of
actions instituted by a third party against Bank arising out of or related to
the Loan, enforcement of any judgment based on this Note, or otherwise, whether
or not a suit to collect such amounts or to enforce such rights is brought or,
if brought, is prosecuted to judgment.
12. Waiver. A11 persons now or at any time liable for payment of this
Note, whether directly or indirectly, including without limitation any
Guarantor, hereby waive presentment, protest, notice of protest and dishonor.
The undersigned expressly consents to any extensions and renewals, in whole or
in part, to the release of any or all Guarantors or co-makers and any collateral
security or portions thereof, given to secure this Note, and all delays in time
of payment or other performance which Bank may grant, in its sole discretion, at
any time and from time to time without limitation all without any notice or
further consent of Borrower, and any such grant by Bank shall not be deemed a
waiver of any subsequent delay or any of Bank's rights hereunder or under any of
the other Loan Documents.
13. Usury. In no event shall this or any other provision herein or in the
Loan Agreement or Security Documents, permit the collection of any interest
which would be usurious under the law governing this transaction. If any such
interest in excess of the maximum rate allowable under applicable law has been
collected, Borrower agrees that the amount of interest collected above the
maximum rate permitted by applicable law, together with interest thereon at the
rate required by applicable law, shall be refunded to Borrower, and Borrower
agrees to accept such refund, or, at Borrower's option, such refund shall be
applied as a principal payment hereunder.
14. Modification. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
changes, modifications, or discharges is sought.
15. Applicable Law. This Note shall be governed by and construed in
accordance with the laws of the State of Florida.
16. Notices. All notices or other communications required or permitted to
be given pursuant to the provisions of this Note shall be given in accordance
with the notice provisions of the Loan Agreement.
17. Successors and Assigns. As used herein, the terms "Borrower" and
"Bank" shall be deemed to include their respective heirs, personal
representatives, successors and assigns.
18. Severability. In the event any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal, or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operates or would prospectively operate to invalidate
this Note, then and in any of those events, only such provision or provisions
shall be deemed null and void and shall not affect any other provision of this
Note. The remaining provisions of this Note shall remain operative and in full
force and effect and shall in no way be affected, prejudiced, or disturbed
thereby. In the event any provisions of this Note are inconsistent with the
provisions of the Loan Agreement, the Security Documents, or any other
agreements or documents executed in connection with this Note, this Note shall
control.
19. Captions: Pronouns. Captions are for reference only and in no way
limit the terms of this Note. The pronouns used in this instrument shall be
construed as masculine, feminine, or neuter as the occasion may require. Use of
the singular includes the plural, and vice versa.
20. Business Day. Any reference herein or in the Loan Agreement or
Security Documents to a day or business day shall be deemed to refer to a
banking day which shall be a day on which Bank is open for the transaction of
business, excluding any national holidays, and any performance which would
otherwise be required on a day other than a banking day shall be timely
performed in such instance, if performed on the next succeeding banking day.
Notwithstanding such timely performance, interest shall continue to accrue
hereunder until such payment or performance has been made.
21. WAIVER OF TRIAL BY JURY: THE PARTIES (INCLUDING ANY GENERAL PARTNER(S)
OF THE BORROWER) HEREBY MUTUALLY AGREE THAT NEITHER PARTY, NOR ANY PARTNER,
ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF WHOM
ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY INSTRUMENT EVIDENCING, SECURING, OR
RELATING TO THE INDEBTEDNESS AND OTHER OBLIGATIONS EVIDENCED HEREBY, ANY RELATED
AGREE- MENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS EVIDENCED
HEREBY OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY
OF THEM. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH
A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS
NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
THE PARTIES WITH BANK, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
BANK HAS IN NO WAY AGREED WITH OR REPRESENTED TO ANY OF THE PARTIES THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. THE
WAIVER CONTAINED HEREIN IS IRREVOCABLE AND CONSTITUTES A KNOWING AND VOLUNTARY
WAIVER.
22. This Note is a consolidation of that certain Promissory Note (For
Non-Revolving Line of Credit) dated October 6, 1994 in the original principal
amount of Nine Hundred Seventy Five Thousand and No/100 Dollars ($975,000.00)
upon which full documentary stamps were paid and affixed to the Real Estate
Mortgage, Assignment and Security Agreement securing same and that certain
Future Advance Promissory Note (For Non-Revolving Line of Credit) of even date
herewith in the original principal amount of One Million Two Hundred Thousand
and No/100 Dollars ($1,200,000.00) upon which full documentary stamps were paid
and affixed to the First Mortgage Modification Agreement securing same.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as
of the day and year first above written.
ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
BY: XXXXX MANAGEMENT COMPANY, INC.,
a Florida corporation, Managing
General Partner
By:/s/Xxxxxx X. Xxxx
-----------------
Xxxxxx X.Xxxx, President
(seal)
Borrower's Taxpayer
Identification No. 00-0000000
FUTURE ADVANCE PROMISSORY NOTE
(For Non-Revolving Line of Credit)
$1,200,000.00 __________, 0000
Xxxx Xxxxxxxxxx Xxxxxxx
FOR VALUE RECEIVED, ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP, a
Delaware Limited Partnership, (sometimes hereinafter referred to as the
"undersigned" or the "Borrower"), promises to pay to the order of Union Bank of
Florida, or any subsequent holder of this note ("Bank") at its principal offices
located at Plantation, Florida (or at such other place or places as Bank may
designate) the principal sum of One Million Two Hundred Thousand and No/100
Dollars ($1,200,000.00) or so much thereof as may be from time to time
outstanding, plus interest thereon at the Rate hereinafter defined, all in
accordance with the terms and conditions of this Promissory Note (the "Note")
and in accordance with the Loan Agreement dated October 6, 1994, as amended, by
and between Borrower and Bank (the "Loan Agreement"). This Note is secured by a
Real Estate Mortgage, Assignment, and Security Agreement dated October 6, 1994,
filed for record in the public records of Palm Beach County, Florida, as amended
(the "Mortgage"), UCC Financing Statements filed for record in the public
records of Palm Beach County, Florida, and in the Office of the Secretary of
State of the State of Florida (the "Financing Statements"), and other written
agreements by and between Borrower and Bank. The Mortgage and such other
agreements are hereinafter referred to collectively as the "Security Documents~.
Terms used herein but not otherwise defined hereunder are defined as set forth
in the Security Documents or the Loan Agreement. All of the terms, definitions,
conditions and covenants of the Loan Agreement and the Security Documents are
expressly made a part of this Note by reference in the same manner and with the
same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Loan Agreement and the
Security Documents. Subject to the terms and conditions of this Note and the
Security Documents, Bank shall advance funds to Borrower pursuant to the terms
of the Loan Agreement.
1. Prime Rate. For purposes hereof, "Prime Rate" means the highest
fluctuating rate of interest per annum as published by the "Wall Street
Journal".
2. Interest. The outstanding Loan principal balance shall bear interest at
a variable rate per annum equal to the Prime Rate plus two percent (2.0%). The
interest rate hereunder shall be adjusted daily in accordance with fluctuations
in the Prime Rate. Interest shall be computed on the basis of a daily amount of
interest accruing on the daily outstanding principal balance during a 360-day
year multiplied by the actual number of days the principal is outstanding during
such applicable interest period.
3. Payment of Interest. Interest accrued in accordance with this Note
shall be due and payable monthly, in arrears, on the first day of each month
immediately following the calendar month for which said interest has accrued.
All accrued but unpaid interest shall be due and payable in full on the Maturity
Date, as defined in Paragraph 6 below.
All payments of principal and interest shall be made in lawful currency of
the United States of America which shall be legal tender in payment of all
debts, public and private, at the time of payment.
4. Prepayment. This Note may be prepaid in whole or in part at any time
without fee, premium or penalty. Any partial prepayment shall be applied in
accordance with paragraph 10 below and shall not postpone the due date of any
subsequent periodic installments or the Maturity Date, or change the amount of
such installments due, unless Bank shall otherwise agree in writing.
5. Late Charges. Should Borrower fail to pay the installments of interest
or principal (if applicable) on any due date provided for herein, then Borrower
further promises to pay a late payment charge equal to five percent (5%) of the
amount of the unpaid installment as liquidated compensation to Bank for the
extra expense to Bank to process and administer the late payment, Borrower
agreeing, by execution hereof, that any other measure of compensation for a late
payment is speculative and impossible to compute. This provision for late
charges shall not be deemed to extend the time for payment or be a "grace
period" or "cure period" that gives Borrower a right to cure a Default or
Default Condition. Imposition of late charges is not contingent upon the giving
of any notice or lapse of any cure period provided for in the Mortgage and shall
not be deemed a waiver of any right or remedy of Bank, including without
limitation, acceleration of this Note.
6. Maturity Date. The then outstanding principal balance plus all accrued
but unpaid interest shall be due and payable on July 1, 1997 (the "Maturity
Date").
7. Default. Any failure of Borrower to comply with any term, covenant, or
condition of this Note, including without limitation, Borrower's failure to pay
principal, interest, or expenses when same shall become due, or the existence of
any Default Condition or Default under the Security Documents or Loan Agreement
shall be deemed, at the option of Bank, a Default under this Note.
8. Acceleration. Upon the occurrence of a Default hereunder or under the
terms of any one or more of the Security Documents or the Loan Agreement, Bank
may declare the then outstanding principal and all accrued but unpaid interest
immediately due and payable and upon acceleration and thereafter this Note shall
bear interest at the Default Rate, hereinafter defined, until all indebtedness
evidenced hereby and secured by the Security Documents has been paid in full.
Further, in the event of such acceleration, the Loan, and all other indebtedness
of Borrower to Bank arising out of or in connection with the Loan shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by Borrower.
9. Default Rate. After default or maturity or upon acceleration, and
thereafter, the unpaid indebtedness then evidenced by this Note and due under
and secured by the Security Documents shall bear interest at a fixed rate equal
to the maximum rate then permitted under applicable law.
10. Application of Payments. All sums received by Bank for application to
the Loan may be applied by Bank to late charges, expenses, costs, interest,
principal, and other amounts owing to Bank in connection with the Loan in the
order selected by Bank in its sole discretion.
11. Expenses. In the event this Note is not paid when due on any stated or
accelerated maturity date, or should it be necessary for Bank to enforce any
other of its rights under the Loan Documents, Borrower will pay to Bank, in
addition to principal, interest and other charges due hereunder or under the
other Loan Documents, all costs of collection or enforcement, including
reasonable attorneys' fees, paralegals' fees, legal assistants' fees, costs and
expenses, whether incurred with respect to collection, litigation, bankruptcy
proceedings, interpretation, dispute, negotiation, trial, appeal, defense of
actions instituted by a third party against Bank arising out of or related to
the Loan, enforcement of any judgment based on this Note, or otherwise, whether
or not a suit to collect such amounts or to enforce such rights is brought or,
if brought, is prosecuted to judgment.
12. Waiver. A11 persons now or at any time liable for payment of this
Note, whether directly or indirectly, including without limitation any
Guarantor, hereby waive presentment, protest, notice of protest and dishonor.
The undersigned expressly consents to any extensions and renewals, in whole or
in part, to the release of any or all Guarantors or co-makers and any collateral
security or portions thereof, given to secure this Note, and all delays in time
of payment or other performance which Bank may grant, in its sole discretion, at
any time and from time to time without limitation all without any notice or
further consent of Borrower, and any such grant by Bank shall not be deemed a
waiver of any subsequent delay or any of Bank's rights hereunder or under any of
the other Loan Documents.
13. Usury. In no event shall this or any other provision herein or in the
Loan Agreement or Security Documents, permit the collection of any interest
which would be usurious under the law governing this transaction. If any such
interest in excess of the maximum rate allowable under applicable law has been
collected, Borrower agrees that the amount of interest collected above the
maximum rate permitted by applicable law, together with interest thereon at the
rate required by applicable law, shall be refunded to Borrower, and Borrower
agrees to accept such refund, or, at Borrower's option, such refund shall be
applied as a principal payment hereunder.
14. Modification. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
changes, modifications, or discharges is sought.
15. Applicable Law. This Note shall be governed by and construed in
accordance with the laws of the State of Florida.
16. Notices. All notices or other communications required or permitted to
be given pursuant to the provisions of this Note shall be given in accordance
with the notice provisions of the Loan Agreement.
17. Successors and Assigns. As used herein, the terms "Borrower" and
"Bank" shall be deemed to include their respective heirs, personal
representatives, successors and assigns.
18. Severability. In the event any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal, or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operates or would prospectively operate to invalidate
this Note, then and in any of those events, only such provision or provisions
shall be deemed null and void and shall not affect any other provision of this
Note. The remaining provisions of this Note shall remain operative and in full
force and effect and shall in no way be affected, prejudiced, or disturbed
thereby. In the event any provisions of this Note are inconsistent with the
provisions of the Loan Agreement, the Security Documents, or any other
agreements or documents executed in connection with this Note, this Note shall
control.
19. Captions: Pronouns. Captions are for reference only and in no way
limit the terms of this Note. The pronouns used in this instrument shall be
construed as masculine, feminine, or neuter as the occasion may require. Use of
the singular includes the plural, and vice versa.
20. Business Day. Any reference herein or in the Loan Agreement or
Security Documents to a day or business day shall be deemed to refer to a
banking day which shall be a day on which Bank is open for the transaction of
business, excluding any national holidays, and any performance which would
otherwise be required on a day other than a banking day shall be timely
performed in such instance, if performed on the next succeeding banking day.
Notwithstanding such timely performance, interest shall continue to accrue
hereunder until such payment or performance has been made.
21. WAIVER OF TRIAL BY JURY: THE PARTIES (INCLUDING ANY GENERAL PARTNER(S)
OF THE BORROWER) HEREBY MUTUALLY AGREE THAT NEITHER PARTY, NOR ANY PARTNER,
ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF WHOM
ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY INSTRUMENT EVIDENCING, SECURING, OR
RELATING TO THE INDEBTEDNESS AND OTHER 0BLIGATIONS EVIDENCED HEREBY, ANY RELATED
AGREE- MENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS EVIDENCED
HEREBY OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY
OF THEM. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH
A JURY TRIAL HAS SEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS
NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
THE PARTIES WITH BANK, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
BANK HAS IN NO WAY AGREED WITH OR REPRESENTED TO ANY OF THE PARTIES THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. THE
WAIVER CONTAINED HEREIN IS IRREVOCABLE AND CONSTITUTES A KNOWING AND VOLUNTARY
WAIVER.
22. This Note represents a future advance to that certain Promissory Note
(For Non-Revolving Line of Credit) dated October 6, 1994 in the original
principal amount of Nine Hundred Seventy Five Thousand and No/100 Dollars
($975,000.00) upon which full documentary stamps were paid and affixed to the
Real Estate Mortgage, Assignment and Security Agreement securing same.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as
of the day and year first above written.
ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
BY: XXXXX MANAGEMENT COMPANY, INC.,
a Florida corporation, Managing
General Partner
By:/s/Xxxxxx X. Xxxx
-----------------
Xxxxxx X. Xxxx, President
(seal)
Documentary Stamps in the amount of
$4,200.00 have been paid and
affixed to the First Mortgage
Modification Agreement securing this
Note.
EXHIBIT 4(i)
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT, dated as of the day of October,
1996 (the "Amendment"), is made by and between Royal Palm Beach Colony, Limited
partnership, a Delaware Limited Partnership (hereinafter referred to as
"BORROWER"), and Union Bank of Florida
("Bank" or "Lender").
RECITALS
A. Borrower has applied to Bank for a future advance of $550,000.00
("Future Advance") to the Loan secured by the Mortgage and Loan Documents in the
current principal amount of $2,175,000.00 to be advanced by Bank pursuant to the
terms hereof and evidenced by note and "L/C" described herein and in the Second
Mortgage Modification Agreement executed this date by the Bank and Borrower.
B. Bank is willing to make the Loan modification described above based
on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Bank hereby agree as
follows:
1. The term "Loan" shall be in the amount of $2,625,000.00 which
represents the sum of the renewal of the outstanding principal balance of
1,212,412.55 and the current availability under the Loan ($862,587.45) plus the
Future Advance described herein.
2. The "Use of Proceeds" for the Future Advance set forth herein shall
be attached as Exhibit "A" hereto and incorporated by reference herein.
3. The term "Note" shall be collectively the Renewal Promissory Note
(For Non-Revolving Line of Credit)in the amount of $1,212,412.55, the Future
Advance Promissory Note (For Non-Revolving Line of Credit) in the amount of
$1,412,587.45 and the Consolidation Promissory Note in the amount of
$2,625,000.00, all of even date herewith which Note shall be secured by the
Mortgage and Loan Documents.
4. A commitment fee in the amount of (i) $10,375.00 [one half of one
percent (.05%) computed on the Loan amount as of the First Amendment to Loan
Agreement - $2,075,000.00] is due from Borrower for the renewal of the existing
Loan until January 31, 1998; and (ii) $11,000.00 [two percent (2%)] computed on
$550,000.00] is due from Borrower and earned upon closing of the Future Advance
whether or not any disbursements are made thereunder.
5. The amount advanced to date under the Note is $1,212,412.55 leaving
a balance of $862,587.45 available for disbursement under this non-revolving
Loan facility. This balance, plus the Future Advance, results in a total of
$1,412,587.45 available for disbursement effective upon this date. Of this total
amount $950,000.00 will be allocated for the issuance of an Irrevocable
(Documentary) Letter of Credit ("L/C") for the benefit of Indian Trail Water
Control District to fund the remaining costs of Borrower's infrastructure
development of Phases II and III of Crestwood Unit #3 (the "Project") after
Borrower's use of bond proceeds derived from the sale of special assessment
revenue bonds issued by ITWCD for the Project ("Bond Offering") with the
remaining available Loan balance to be disbursed to the Borrower per the Use of
Proceeds as and when requested by Borrower for so long as Borrower is not in
default under the Loan.
A. The L/C shall be (i) for a term of no more than one (1)
year; (ii) shall be in a form and have attached as exhibits a requisition form
and draw schedule approved by Bank;(iii) shall be secured by the Mortgage and
the existing collateral for the Loan; and (iv) shall be delivered by Bank to
ITWCD upon the successful closing of the Bond Offering. To the extent that any
amounts outstanding under the Loan during the term of the Note or the L/C exceed
sixty percent (60%) of the value of the Bank's collateral ("Value"), as
determined by Bank's appraisal, Bank at its sole discretion shall require
sufficient additional collateral to regain the sixty percent (60%) Loan-to-Value
such as the following:
i) Cash security in a form acceptable to Bank; and/or
ii) Additional real estate collateral of same loan-to-
Value acceptable to Bank in Bank's sole discretion.
B. In the event the current appraised value of the collateral
(as determined by an appraiser acceptable to Bank) for the Loan becomes
decreased such that the Loan-to Value is less than sixty percent (60%), the
Borrower shall be required to provided Bank with additional collateral as set
forth in items (i) and (ii) above in this section.
C. Bank shall have received opinions of counsel for the
issuing entity and such other parties as Bank may require, a copy of the Bond
Offering documentation and such other documentation and agreements as Bank may
reasonably require upon review of the foregoing.
D. Any uncured Default by Borrower under the Bond Offering
documents shall be a Default under the Loan.
E. Bank shall have approved of the final form and content of
the Agreement between ITWCD and Borrower for the development of the Project.
6. The parties agree that the mortgagee title insurance issued in favor
of Bank shall at all times during the Loan be in an amount of at least the
outstanding indebtedness under the Loan.
7. The maturity date of the Loan shall be January 31, 1998.
8. Bank agrees to waive any and all pre-sale requirements for lots in
Phase I which were a condition to funding Loan Proceeds for Phase II and III.
9. All other terms and conditions of the Loan Agreement shall be
amended consistent with the matters set forth above.
IN WITNESS WHEREOF, Borrower and Bank have executed this Amendment as
of the above written date by their respective officers all duly authorized
thereunto.
Signed, sealed and delivered
in the presence of: "BORROWER"
ROYAL PALM BEACH COLONY, LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
BY: XXXXX MANAGEMENT COMPANY, INC.,
a Florida corporation, Managing
General Partner
-------------------------------
By: Xxxxx Xxxxxx, Authorized Agent
(seal)
--------------------------- Address: 0000 Xxxxx Xxxxx Xxxxx
Printed Name: Xxxxxxxxx, XX 00000
---------------------------
Printed Name:
"LENDER"
Union Bank of Florida
___________________________ BY: ---------------------------(Seal)
Printed Name: Xxxx X. Xxxxxxxx, President
--------------------------- Address: 0000 Xxxxx Xxxx Xxxxxx Xxxx
Printed Name: Xxxxxxxxxx, XX 00000
EXHIBIT 4(j)
MORTGAGE
THIS MORTGAGE, executed this _____ day of ___________________, 1996,
between ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP, a Florida limited
partnership, whose address is 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX 00000,
hereinafter referred to as the "MORTGAGOR" and CROSSROADS ASSOCIATES, LTD., a
Florida limited partnership, whose address is 0000 Xxxxxxx Xxxxxx, Xx.
Xxxxxxxxxx, XX 00000, its successors and assigns, hereinafter referred to as the
"MORTGAGEE."
(The term "MORTGAGOR" as used in every instance shall include the Mortgagor's
heirs, executors, administrators, successors, legal representatives and assigns,
either voluntary or by an act of the parties, or involuntary by operation of
law, and shall denote the single and/or plural, the masculine and/or feminine,
and natural and/or artificial persons whenever and wherever the context so
requires or admits.)
W I T N E S S E T H:
THAT for good and valuable consideration, and to secure the payment of
the promissory note (the "Note") as hereinafter described, together with
interest thereon, the MORTGAGOR grants, bargains, sells, and conveys to the
MORTGAGEE in fee simple, the following described real property (the "Property")
of which the MORTGAGOR is now seized and possessed, and in actual possession,
situate in the County of Palm Beach, State of Florida, to wit:
SEE EXHIBIT "A" ATTACHED HERETO
TOGETHER with all buildings and improvements now or hereafter situated
on the Property.
AND TOGETHER with the tenements, hereditaments, easements and
appurtenances thereunto belonging, and the rents, issues, and profits hereof.
TO HAVE AND TO HOLD the same unto the said MORTGAGEE, in fee simple.
The MORTGAGOR hereby covenants with the MORTGAGEE that the MORTGAGOR is
indefeasibly seized with the absolute and fee simple title to said property, and
has full power and lawful authority to sell, convey, transfer and mortgage the
same; that it shall be lawful at any time hereafter for the MORTGAGEE to
peaceably and quietly enter upon, have, hold and enjoy said Property, and every
part thereof; that the Property is free and discharged from all liens,
encumbrances and claims of any kind, including taxes and assessments, except
taxes for the current year that are not yet due and payable; that the MORTGAGOR
will make, at MORTGAGOR'S expense, to MORTGAGEE such other and further
assurances to perfect the fee simple title to said Property in the MORTGAGEE as
may hereafter be required; and, that
MORTGAGOR hereby fully warrants unto the MORTGAGEE the title to said
Property and will defend the same against the lawful claims and demands of all
persons whomsoever.
NOW, THEREFORE, the conditions of this Mortgage are such that if the
MORTGAGOR shall pay unto the MORTGAGEE the indebtedness evidenced by the Note of
even date herewith, made by the MORTGAGOR and payable to the MORTGAGEE in the
original principal sum of $300,000.00, together with interest as therein stated,
and shall perform, comply with and abide by each and every stipulation,
agreement, condition and covenant contained in this Mortgage and in the Note
secured hereby, then this Mortgage and the estate hereby created shall cease and
be null and void.
AND, the MORTGAGOR does hereby further covenant and agree as follows:
1. To perform and comply with every covenant contained in the Note and
this Mortgage.
2. To pay all and singular the principal and interest and other sums of
money payable by virtue of said Note and this Mortgage, or either, promptly on
the days respectively the same become severally due.
3. To pay, before becoming delinquent, all obligations, encumbrances,
taxes, assessments, paving, sidewalk, sanitary and other assessments, levies or
liens, now or hereafter levied or imposed upon or against the mortgaged
property, and to exhibit to the MORTGAGEE, before such taxes, assessments,
liens, and encumbrances become delinquent, the official receipts for payment
thereof. If the same, or any part hereof, are not paid before becoming
delinquent, the MORTGAGEE may at any time pay the same with accrued interest and
charges, if any, without waiving or affecting MORTGAGEE'S option to foreclose
this Mortgage, or any right hereunder. Every payment so made shall bear interest
from the date thereof at the highest rate authorized by law, but if there is at
the time of default no maximum lawful rate, then at the rate of 18% per annum,
and all such payments with interest shall be secured by the lien hereof.
4. If all or any part of the Property or an interest therein is sold,
transferred or conveyed, all the sums secured by this Mortgage shall be
immediately due and payable.
5. In the event any judgment or mechanic's lien is filed against the
mortgaged Property and is not discharged or removed within thirty (30) days, or
in the event that any legal proceeding is initiated against the mortgaged
Property and is not dismissed or otherwise terminated within thirty (30) days
from the date of filing of such legal proceedings, the MORTGAGEE at its option
may accelerate the entire indebtedness secured by this Mortgage and demand
payment in full.
6. To pay all costs, fees, charges and expenses of every kind,
including the cost of an abstract of title to said Property or a title insurance
policy, found to be convenient or expedient in connection with any suit for the
foreclosure of this Mortgage, and also including reasonable attorneys' fees
incurred or expended at any time by the MORTGAGEE because of the failure of the
MORTGAGOR to perform, comply with and abide by any of the covenants, conditions
and stipulations of the Note, or this Mortgage, or in the foreclosure of this
Mortgage and in collecting the amount secured hereby with or without legal
proceedings, and to reimburse the MORTGAGEE for every payment made or incurred
for any such purpose with interest from date of every such payment at the
highest rate permitted by law, but if there is at the time of default no maximum
lawful rate, then at the rate of 18% per annum, and such payments and
obligations, with interest therein as aforesaid, shall be secured by the lien of
this Mortgage.
7. To permit, commit or suffer no waste and at all times keep the
Property in a state of good repair and condition.
8. MORTGAGOR shall not further encumber the Property without the prior
written consent of the MORTGAGEE.
9. No waiver of any covenant herein or in the obligation secured hereby
shall at any time hereafter be held to be a waiver of any of the other terms
hereof or of the Note secured hereby, or future waiver of the same covenant.
10. In order to accelerate the maturity of the indebtedness hereby
secured because of the failure of the MORTGAGOR to pay any tax assessment,
liability, obligation or encumbrances upon said property as herein provided, it
shall not be necessary nor requisite that the MORTGAGEE shall first pay the
same.
11. If the MORTGAGOR shall fail for a period of fifteen (15) days to
fully and promptly to pay the amounts required to be paid by the Note hereby
secured or the interest therein specified or any of the sums of money herein
referred to or hereby and promptly to perform, each and every of the terms and
covenants contained herein, then, without notice or demand, the aggregate sum
mentioned in said Note, less previous payments, if any, and any and all sums
mentioned herein or secured hereby shall become due and payable forthwith at the
option of the MORTGAGEE and the MORTGAGEE shall be entitled thereupon without
notice or demand to institute suit to enforce the rights of the MORTGAGEE
hereunder or under the Note. In the event of any default or breach on the part
of the MORTGAGOR hereunder or under the Note, the MORTGAGEE shall have the
option to enforce payment of all sums secured hereby either by suit upon the
Note or by foreclosure of this Mortgage, and one action shall not be a bar to or
waiver of the MORTGAGEE'S right to institute or maintain the other, provided
said MORTGAGEE shall have only one payment of the indebtedness.
12. In the event that the MORTGAGOR shall (a) consent to the
appointment of a receiver, trustee, or liquidator of all or a substantial part
of the MORTGAGOR'S assets, or (b) be adjudicated a bankrupt, or insolvent, or
file a voluntary petition in bankruptcy, or admit in writing its inability to
pay its debts as they mature, or (c) make a general assignment for the benefit
of creditors, or (d) file a petition or answer seeking reorganization or
arrangement with creditors, or to take advantage of any insolvency law, or (e)
file an answer admitting the material allegations of a petition filed against
the MORTGAGOR in any bankruptcy, reorganization or insolvency proceeding, or (f)
action shall be taken by the MORTGAGOR for the purpose of affecting any of the
foregoing, or (g) any order, judgment or decree shall be entered upon an
application of a creditor of MORTGAGOR by a court of competent jurisdiction
approving a petition seeking appointment of a receiver or trustee of all or a
substantial part of the MORTGAGOR'S assets and such order, judgment or decree
shall continue unstayed and in effect for any period of thirty (30) consecutive
days, the MORTGAGEE may declare the Note hereby secured forthwith due and
payable, whereas the principal of and the interest accrued on the Note and all
other sums hereby secured shall become forthwith due and payable as if all of
the said sums of money were originally stipulated to be paid on such day; and
thereupon the MORTGAGEE without notice or demand may prosecute a suit at law
and/or in equity as if all monies secured hereby had matured prior to its
institution.
13. The MORTGAGEE, or any person authorized by the MORTGAGEE, shall
have the right to enter upon and inspect the Property at all reasonable times.
14. It is agreed that nothing in the Note or this Mortgage shall
operate to require the MORTGAGOR to pay interest at a rate greater than the
maximum lawful rate of interest allowable from time to time under the laws of
the State of Florida or the United States of America, whichever is higher, or
unlimited, or to make any payment or to do any act contrary to law. If any
clauses or provisions herein would operate to invalidate this Mortgage or the
Note in whole or in part, such clauses or provisions only shall be considered
invalid, and the remainder of this Mortgage shall remain operative and in full
force and effect.
15. If all or any part of the Property shall be damaged or taken
through condemnation (which terms when used in this Mortgage shall include any
damage or taking by any governmental authority, and any transfer by private sale
in lieu thereof), either temporarily or permanently, the entire indebtedness
secured hereby shall at the option of the MORTGAGEE, become immediately due and
payable. The MORTGAGEE shall be entitled to all compensation awards, and other
payments or relief therefor and is hereby authorized, at its option, to
commence, appear in and prosecute, in its own or the MORTGAGOR'S name, any
action or proceeding relating to any condemnation, and to settle or compromise
any claim in connection therewith. All such compensation is hereby assigned by
the MORTGAGOR to the MORTGAGEE, who, after deducting therefrom all its expenses,
including attorneys' fees, may release any monies so received by it without
affecting the lien of this Mortgage or may apply the same in such manner as the
MORTGAGEE shall determine, to the reduction of the sums secured hereby, and any
balance of such monies then remaining shall be paid to the MORTGAGOR. MORTGAGOR
agrees to execute such further assignments of any compensation, awards, damages,
claims, rights of action and proceeds as the Mortgage may require.
16. MORTGAGOR will procure and maintain for the benefit of the
MORTGAGEE during the life of this Mortgage a standard ALTA Mortgagee Policy,
which shall be issued by a title insurance company approved by MORTGAGEE or its
counsel. Such policy shall provide coverage for the full principal amount of the
loan evidenced by the Note secured hereby, together with such affirmative
coverage and such reinsurance or coinsurance as MORTGAGEE or its counsel shall
reasonably require, and shall not contain any title exceptions not approved by
MORTGAGEE or its counsel. Such mortgagee title policy shall insure all of the
Property described on Exhibit "A".
17. MORTGAGOR agrees (to the full extent permitted by law) that in case
of an event of default, neither MORTGAGOR nor anyone claiming by, through or
under it, shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now or hereafter in
force, to prevent or hinder the enforcement or foreclosure of this Mortgage or
the final and absolute sale of the mortgaged Property or the final and absolute
possession of the mortgaged Property by the purchasers in foreclosure, and the
MORTGAGOR, for itself and for all who may at any time claim through or under it,
hereby waives (to the full extent that it may lawfully do so) the benefit of all
such laws and any and all right to have the assets comprising the mortgaged
Property marshalled upon any foreclosure and the MORTGAGOR agrees that the
mortgaged Property may be sold in its entirety.
18. (a) MORTGAGOR hereby represents that neither the MORTGAGOR nor any
other person has ever used the mortgaged Property as a storage facility for any
"Hazardous Substances" used in the ordinary course of the MORTGAGOR's business.
(b) MORTGAGOR hereby agrees to indemnify the MORTGAGEE and hold
MORTGAGEE harmless from and against any and all losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, cost of any settlement or judgement or claims of any and every kind
whatsoever paid incurred or suffered by, or asserted against, the MORTGAGEE by
any person or entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or release from the
mortgaged Property of any Hazardous Substance (including, without limitation,
any losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, cost of any settlement or
judgement or claims asserted or arising under the Comprehensive Environmental
Response, Compensation and Liability Act, any so called federal, state or local
"Superfund"or "Superlien" laws, statutes, law, ordinance, code, rule,
regulation, order or decree regulating, with respect to or imposing liability,
including strict liability, substances or standards of conduct concerning any
Hazardous Substances) and, regardless of whether within the control of the
MORTGAGEE.
(c) For purposes of this Mortgage, "Hazardous Substances" shall
mean and include asbestos, asbestos-containing materials and those elements or
compounds which are contained in the list of hazardous substances adopted by the
U.S. Environmental Protection Agency (EPA) and the list of toxic pollutants
designated by Congress or the EPA or defined by any other Federal, state or
local statute, law or ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material as now
or at any time hereunder in effect.
(d) If the MORTGAGOR receives any notice of (i) the happening of
any material event involving the spill, release, leak, seepage, discharge or
cleanup of any Hazardous Substance on the Property or in connection with the
MORTGAGOR'S operations thereon or (ii) any complaint, order, citation or
material notice with regard to air emissions, water discharges, or any other
environmental, health or safety matter affecting the MORTGAGOR (an
"Environmental Complaint") from any person or entity (including without
limitation the EPA) then the MORTGAGOR shall immediately notify the MORTGAGEE
orally and in writing of said notice.
(e) MORTGAGEE shall have the right but not the obligation, and
without limitation of the MORTGAGEE's rights under this Mortgage to enter onto
the Property or to take such other actions as it deems necessary or advisable to
cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any
such Hazardous Substance or Environmental Complaint following receipt of any
notice from any person or entity (including without limitation the EPA)
asserting the existence of any Hazardous Substance or an Environmental Complaint
pertaining to the Property or any part thereof which, if true, could result in
an order, suit or other action against MORTGAGOR and/or which, in the sole
opinion of MORTGAGEE, could jeopardize its security under this Mortgage. All
reasonable costs and expenses incurred by MORTGAGEE in the exercise of any such
rights shall be secured by this Mortgage and shall be payable by MORTGAGOR upon
demand.
(f) MORTGAGEE shall have the right, in its sole discretion, 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 satisfactory to MORTGAGEE, of the
Property, hazardous waste management practices and/or hazardous waste disposal
sites used by MORTGAGOR. Said audit and/or risk assessment must be by an
environmental consultant satisfactory to MORTGAGEE. Should MORTGAGOR fail to
perform said environmental audit or risk assessment within 30 days of
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 costs and expenses incurred by MORTGAGEE in the
exercise of such rights shall be secured by this Mortgage and shall be payable
by MORTGAGOR upon demand or charged to MORTGAGOR'S loan balance at the
discretion of MORTGAGEE.
(g) Any breach of any warranty, representation or agreement
contained in this Section shall be an event of default hereunder and shall
entitle MORTGAGEE to exercise any and all remedies provided in this Mortgage, or
otherwise permitted by law.
19. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE AND ANY
DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF MORTGAGOR. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE'S MAKING THE LOAN SECURED
HEREBY.
20. MORTGAGOR agrees that time is of the essence hereof in connection
with all obligations of MORTGAGOR in this Mortgage or in the Note.
21. Whenever in this Mortgage one of the parties is named or referred
to, the successors and/or assigns of such party shall be included and the
covenants and agreements contained herein shall bind and inure to their
respective successors and assigns.
IN WITNESS WHEREOF, the MORTGAGOR has executed this Mortgage as of the
date and year first set forth above.
Signed in the presence of: ROYAL PALM BEACH COLONY,
LIMITED PARTNERSHIP
-------------------------------------
(Signature of Witness) By: XXXXX MANAGEMENT COMPANY, INC.,
a Florida corporation, as Managing
_____________________________________ General Partner
(Print Name of Witness)
_____________________________________ By: /s/Xxxxxx Xxxxx
---------------
(Signature of Witness) Xxxxxx Xxxxx, President
-------------------------------------
(Print Name of Witness)
[NOTARIAL ACKNOWLEDGMENT ON FOLLOWING PAGE]
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 13th day of
June, 1996, by Xxxxxx Xxxxx, as President of Xxxxx Management Company, Inc., a
Florida corporation, on behalf of said corporation, and who did/did not take an
oath and who is personally known to me or who has produced driver's license as
identification.
-------------------------------
Notary Public, State of Florida
This Instrument Prepared by:
XXXXX X. XXXXX, P.A.
XXXXX X. XXXXX, ESQ.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Phone No. (000) 000-0000)
EXHIBIT 4(k)
PROMISSORY NOTE
$300,000.00 ___________________, 0000
Xx. Xxxxxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP, a
Delaware limited partnership, promises to pay to the order of CROSSROADS
ASSOCIATES, LTD. a Florida limited partnership, at its principal office located
in St. Petersburg, Florida (or such other place as the holder may designate) the
principal sum of Three Hundred Thousand Dollars and 00/100 ($300,000.00), plus
interest thereon from date at the Rate hereinafter defined.
For purposes hereof, "Prime Rate" means the highest fluctuating rate of
interest per annum as published by the Wall Street Journal. The outstanding loan
principal balance shall bear interest at a variable rate per annum equal to the
Prime Rate plus two percent (2.0% ) (the "Rate"). The Rate shall be adjusted
daily in accordance with fluctuations in the Prime Rate. Interest shall be
computed on the basis of a daily amount of interest accruing on the daily
outstanding principal balance during a 360 day year compounded daily, for the
actual number of days the principal is outstanding during such applicable
interest period.
The then outstanding principal balance of this Promissory Note, plus
all accrued but unpaid interest, shall be due and payable on October 31, 1996,
or earlier upon the sale, transfer or other conveyance of all or any part of the
property securing this Promissory Note (the "Maturity Date").
Should Maker fail to pay the installments of interest on any due date
provided for herein, then Maker further promises to pay a late payment charge
equal to four percent (4%) of the amount of the unpaid installment.
After default or maturity or upon acceleration, and thereafter, the
unpaid indebtedness then evidenced by this Promissory Note shall bear interest
at a fixed rate equal to the maximum rate then permitted by applicable law, or
if there shall be no maximum rate then at the rate of eighteen percent (18%) per
annum.
In no event shall this Promissory Note permit the collection of any
interest which would be usurious under the law governing this transaction. If
any such interest in excess of the maximum rate allowable under applicable law
has been collected, Maker agrees that the amount of interest collected above the
maximum rate permitted by applicable law, together with interest thereon at the
rate required by applicable law, shall be refunded to Maker, and Maker agrees to
accept such refund.
This Promissory Note may be prepaid in whole or in part at any time
without penalty.
Anyone now or at any time liable for payment of this Promissory Note,
whether directly or indirectly, hereby waives presentment, protest, notice of
protest and dishonor.
Maker further agrees to pay all costs of collection, including without
limitation a reasonable attorney's fee, in case the principal of this Promissory
Note or any installment of interest thereon is not paid when due, or in case it
becomes necessary to protect the security hereof, whether suit be brought or
not.
This Promissory Note is secured by a first mortgage of even date
herewith encumbering certain property in the State of Florida, and is to be
construed and enforced according to the laws of the State of Florida; upon
default in the payment of principal and/or interest when due, the whole sum of
principal and interest remaining unpaid shall, at the option of the holder,
become immediately due and payable.
MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY DOCUMENT EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF MAKER, GUARANTORS OR HOLDER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER'S MAKING THE LOAN EVIDENCED
HEREBY.
IN WITNESS WHEREOF, Maker has caused this Promissory Note to be duly
executed as of the day and year first above written.
ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP
By: XXXXX MANAGEMENT COMPANY, INC., a
Florida corporation,
Managing General Partner
By: /s/Xxxxxx Xxxxx
---------------
Xxxxxx Xxxxx, President
[Corporate Seal]
Attest: _____________________________
Secretary
