Resolution 001-2000
RESOLUTION 001-2000
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A RESOLUTION OF THE MEMBERS OF THE MONROfg~.::
COUNTY INDUSTRIAL DEVELOPMENT AUTHORIT~~~
AUTHORIZING THE ISSUANCE OF THE AUTHORITY'~~~
INDUSTRIAL DEVELOPMENT REVENUE BOND, SERI~~~
2000 (WESLEY HOUSE COMMUNITY CENTER, INC'",,:'~
PROJECT) IN THE AGGREGA TE PRINCIPAL AMOUNT on: iT.
NOT EXCEEDING $1,000,000 FOR THE PURPOSE OF
PROVIDING FUNDS TO MAKE A LOAN TO WESLEY HOUSE
COMMUNITY CENTER, INC. (THE "BORROWER") TO
PROVIDE FUNDS TO FINANCE AND REFINANCE THE COST
OF ACQUISITION, RENOVATION AND RESTORATION OF A
SOCIAL SERVICE CENTER TO BE OWNED AND OPERATED
BY THE BORROWER AND TO PAY A PORTION OF THE
COSTS OF ISSUING THE BOND; APPROVING THE FORM OF
AND AUTHORIZING THE EXECUTION OF A LOAN
AGREEMENT, A BOND PURCHASE AND CONSTRUCTION
FINANCING AGREEMENT, A MORTGAGE, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT, AN
ENVIRONMENTAL INDEMNITY AGREEMENT AND AN
ASSIGNMENT OF LOAN AGREEMENT, MORTGAGE,
PROMISSORY NOTE AND OTHER COLLATERAL;
AWARDING THE SALE OF THE BOND BY A NEGOTIATED
SALE; AUTHORIZING OFFICIALS OF THE AUTHORITY TO
TAKE CERTAIN ACTION IN CONNECTION WITH THE
ISSUANCE OF THE BOND; MAKING CERTAIN OTHER
COVENANTS AND AGREEMENTS IN CONNECTION WITH
THE ISSUANCE OF THE BOND; AND PROVIDING AN
EFFECTIVE DATE.
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WHEREAS, Wesley House Community Center, Inc. (the "Borrower") has requested
Monroe County Industrial Development Authority (the "Issuer") to assist the Borrower by the
issuance by the Issuer of its Industrial Development Revenue Bond, Series 2000 (Wesley House
Community Center, Inc. Project) in an aggregate principal amount of not exceeding $1,000,000
(the "Bond ") and the loan of the proceeds of the Bond to the Borrower to provide funds to fmance
and refinance the cost of acquisition, renovation and restoration of a social service center to be
owned and operated by the Borrower and to pay a portion of the costs of issuing the Bond; and
WHEREAS, the Issuer and the Borrower have received a proposal from First Union
National Bank (together with its successors and assigns as registered owner of the Bond, the
"Bank") to purchase the Bond, in the form of a Bond Purchase and Construction Financing
Agreement to be dated the date of issuance of the ~ond (the "Bond Purchase Agreement"); and
WHEREAS, it is neces~ary and desirable to approve the form of and authorize the
execution of a Loan Agreement, a Mortgage, Assignment of Rents and Security Agreement, an
Assignment of Loan Agreement, Mortgage, Promissory Note and Other Collateral, an
Environmental Indemnity Agreement and the Bond Purchase Agreement, and to specify the
interest rate, maturity date, prepayment provisions and other details for the Bond;
NOW, THEREFORE, BE IT RESOLVED BY THE- MEMBERS OF THE MONROE
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY THAT:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution, hereinafter
called the "Resolution," is adopted pursuant to Parts II and III, Chapter 159, Florida Statutes, and
other applicable provisions of law.
SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms used in
this Resolution in capitalized form and not otherwise defined herein shall have the meanings
specified in the Loan Agreement attached hereto as Exhibit B, in the Mortgage, Assignment of
Rents and Security Agreement attached hereto as Exhibit C and/ or in the Bond Purchase
Agreement attached hereto as Exhibit D. Words importing singular number shall include the
plural number in each case and vice versa, and words importing persons shall include firms and
corporations.
SECTION 3. INTERPRETATION. Whenever in this Resolution any governmental unit
or body, including the Issuer, or any officer, director, board, department, commission, or agency
of a governmental unit or body is defined or referred to, such definition or reference shall be
deemed to include the governmental unit or body or officer, director, board, department,
commission or agency succeeding to or in whom or which is vested, the functions, rights, powers,
duties and obligations of such governmental unit or body or officer, director, board, department,
commission or agency, as the case may be, encompassed by this Resolution.
Unless the context shall clearly indicate otherwise in this Resolution: (i) references to
sections and other subdivisions, whether by number or letter or otherwise, are to the respective
or corresponding sections and subdivisions of this Resolution; (ii) the terms "herein,"
"hereunder," "hereby," "hereto," hereof," and any similar terms, refer to this Resolution only and
to this Resolution as a whole and not to any particular section or subdivision hereof; and (iii) the
term "heretofore" means before the date of adoption of this Resolution; the word "now" means
at the time of enactment of this Resolution; and the term "hereafter" means after the date of
adoption of this Resolution.
SECTION 4. FINDINGS. Upon consideration of the documents described herein and the
information presented to the Issuer at or prior to the date hereof, it is hereby ascertained,
determined and declared as follows:
A. The Project is appropriate to the needs and circumstances of, and will make a
significant contribution to the economic growth of Monroe County, Florida, will provide and
preserve gainful employment, and will serve a public purpose, consistent with Article VII, Section
10(c) of the Florida Constitution, by advancing the economic prosperity and the general welfare
of the Issuer, the State, and the people thereof, and in particular, the issuance of the Bonds is in
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the common interest of the people of Monroe County, Florida. As of the date hereof, the Borrower
has represented and shown that it is financially responsible and fully capable of and willing to
fulfill any obligations which it may incur in connection with the financing of the Project as
contemplated by this Resolution. Local government will be able to cope satisfactorily with the
impact of the Project and will be able to provide~ or cause to be provided when needed, the public
facilities, including utilities and public services, that will be necessary for the construction,
operation, repair and maintenance of the Project and on account of any increases in population or
other circumstances resulting therefrom.
B. The Issuer hereby fmds that the Loan Agreement makes adequate provision for the
operation, repair and maintenance of the Project at the expense of the Borrower and for the
payment of the principal and interest on the Bond and all other costs incurred by the Issuer in
connection with the Bond and the Project.
C. The Issuer has been advised that due to the desire to coordinate the sale of the Bond
and due to the limited market for tax-exempt obligations such as the Bond, it is in the best interest
of the Borrower to sell the Bond by negotiated sale, and the Issuer, wishing to obtain the best
interest rate on the Bond for the benefit of the Borrower, has determined to sell the Bond by
negotiated sale to the Bank, permitting the Issuer to enter such market at the most advantageous
time, rather than at a specified advertised date, and accordingly it is in the best interest of the
Issuer that a negotiated sale of the Bond be authorized.
SECTION 5. AUTHORIZATION OF BOND. For the purpose of making the Loan to
the Borrower, there is hereby authorized to be issued under this Resolution the Bond in the
aggregate principal amount of not to exceed $1,000,000 and to be designated "Monroe County
Industrial Development Authority Industrial Development Revenue Bond, Series 2000 (Wesley
House Community Center, Inc. Project) (the "Bond"). The Bond shall be issued as a fully
registered Bond, shall be dated as of the date of issuance, shall mature, shall bear interest at the
rate and shall have such other terms and conditions, and shall be in the form of, the Bond attached
hereto as Exhibit A, with such changes, alterations and corrections as may be approved by the
Chair, such approval to be conclusively presumed by the execution thereof by the Chair. The
Bond shall be issued on such date as shall be mutually agreed upon by the Bank, the Borrower and
the Chair. The Bond shall not be issued unless and until the issuance thereof shall have been
approved by the Board of County Commissioners of Monroe County, Florida pursuant to Section
125.01(1)(Z), Florida Statues. The Issuer hereby authorized and directs the Chair to execute the
Bond and to deliver the same to the Bank, upon payment of the purchase price thereof, all as
further provided in the Bond Purchase Agreement.
SECTION 6. BOND REGISTER. The Bond shall be registered as to principal and
interest in the name of First Union National Bank provided that the Bond may be transferred at
the office of the Issuer by surrender of such Bond for cancellation, accompanied by a written
instrument of transfer, in form satisfactory to the Issuer, duly executed by the registered owner
in person or by his duly authorized agent, and thereupon the Issuer will issue and deliver to the
owner thereof at his expense, in the name of the transferee or transferees, a new registered Bond,
having the same terms as the Bond so surrendered. Upon any transfer of the Bond the Issuer will
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keep or cause to be kept a bond register for the registration and transfer of ownership of the Bond,
and, upon presentation for such purpose, the Issuer shall, under such reasonable regulations as it
may prescribe, register or transfer or cause to be registered or transferred such Bond on the bond
register. In every case of a transfer of a Bond, the surrendered Bond shall be canceled by the
Issuer.
SECTION 7. MUTILATED, LOST, STOLEN OR DESTROYED BOND. In case the
Bond shall become mutilated or be lost, stolen or destroyed, the Issuer shall cause to be executed
and furnished to the owner a new Bond in exchange and substitution for, and upon the cancellation
of, the mutilated Bond or in lieu of and substitution for such lost, stolen or destroyed Bond.
In every case the applicant shall furnish evidence satisfactory to the Issuer of the
destruction, theft or loss of such Bond and indemnity satisfactory to the Issuer, and the Issuer shall
charge the applicant for the issuance of such new Bond an amount sufficient to reimburse it for
any expense incurred by it in the issuance thereof.
SECTION 8. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer shall cause to
be paid, when due, the principal of and the interest on the Bond at the place, on the date and in
the manner provided herein and in the Bond according to the true intent and meaning thereof;
provided, that it is understood that the Bond is not a general obligation of the Issuer but is a
limited obligation payable solely from the Loan Payments received from or on behalf of the
Borrower. The Bond shall not be an obligation of the State of Florida or of any political
subdivision thereof, other than the Issuer (limited as aforesaid), and any and all payments of any
nature thereunder shall be payable only from amounts provided for such purpose under the Bond
Documents and not from other funds of the Issuer.
SECTION 9. COVENANT TO PERFORM. The Issuer shall faithfully perform at all
times all of its covenants, undertakings and agreements contained in this Resolution, in the Bond
or in any proceedings of the Issuer pertaining thereto. The Issuer represents that it is duly
authorized under the Constitution and laws of the State of Florida, particularly the Act, to issue
the Bond and to adopt this Resolution, and to assign the Agreement, the Mortgage and the Note
and pledge the revenues, receipts, proceeds and funds derived in respect thereof, in the manner
and to the extent herein set forth as security for the Bond; that all action on its part for the issuance
of the Bond and the adoption of this Resolution has been duly and effectively taken; and that the
Bond will be a valid and enforceable limited obligation of the Issuer according to its terms.
SECTION 10. COVENANT AS TO THE BORROWER. The Issuer covenants that it will
fulfill its obligations, and it authorizes the Bank to require the Borrower to perform the duties and
obligations of the Borrower, under the Agreement, the Mortgage and the Note. The Issuer shall
promptly notify the Bank of any actual or alleged Default of which it has actual knowledge and
shall not execute or agree to any change, amendment, modification or supplement of or to any
Bond Document, except as is provided in the Bond Documents.
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SECTION 11. ENFORCEMENT OF THE AGREEMENT. The Bank may enforce all
obligations of the Borrower, and may exercise all rights (except Unassigned Issuer's Rights) of
the Issuer under the Bond Documents whether or not the Issuer is in default hereunder.
SECTION 12. FURTHER INSTRUMENTS AND ACTIONS. At the request of the
Borrower or the Bank, the Issuer shall execute and deliver such further instruments or take such
further actions as may be reasonably required to carry out the purposes of this Resolution and the
Bond Documents.
SECTION 13. AMENDMENTS. No amendment to this Resolution shall become effective
unless and until the Borrower and the Bank shall have consented thereto in writing.
SECTION 14. EVENTS OF DEFAULT. Each of the following is hereby dermed as and
declared to be and shall constitute an "Default" hereunder:
(a) If payment of any installment of principal or interest on the Bond shall not be made
when the same shall become due and payable prior to the expiration of any applicable cure period;
or
(b) If a Default shall have occurred under the Agreement and such Default shall not
have been waived by the Bank or remedied.
SECTION 15. DECLARATION OF PRINCIPAL AND INTEREST AS DUE. Upon the
occurrence of a Default and at any time thereafter while such Default shall continue, the Bank may
by written notice to the Issuer and the Borrower declare the principal of the Bond, together with
all accrued and unpaid interest thereon, if not already due, to be due and payable immediately, and
upon any such declaration the same shall become and be due and payable immediately, anything
. in this Resolution or in the Bond contained to the contrary notwithstanding.
SECTION 16. ACTION BY BANK UPON OCCURRENCE OF DEFAULT. Upon the
occurrence of a Default and at any time thereafter while such default shall continue, then in every
such case the Bank may pursue any available remedy at law or in equity to enforce the payment
of the principal of and interest on the Bond and any covenant or agreement contained in this
Resolution, or to enforce any other legal or equitable right or remedy vested in the holder of the
Bond by this Resolution or by the Agreement or by said laws.
In the enforcement of any remedy under this Resolution the Bank shall be entitled to sue
for, enforce payment of and receive any and all amounts then or during any Default becoming,
and at any time remaining, due from the Issuer and unpaid for principal, interest or otherwise
under any of the provisions of this Resolution or of the Bond, together with any and all costs and
expenses of collection and of all proceedings hereunder and under such Bond, without prejudice
to any other right or remedy of the Bank, and to recover and enforce judgment or decree for any
portion of such amounts remaining unpaid, with interest, costs and expenses, and to collect in any
manner provided by law, the moneys adjudged or decreed to be payable.
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SECTION 17. DISCHARGE OF BOND. If the Issuer or the Borrower shall pay and
discharge the entire indebtedness on the Bond by fully paying or causing to be paid the principal
of and -interest on the Bond, as and when the same become due and payable and if the Issuer or
the Borrower shall also payor provide for the payment of all other sums payable hereunder by the
. Issuer or the Borrower, then and in that case this Resolution shall cease, determine and become
null and v.oid as to the Bond.
SECTION 18. LIMITED LIABILITY OF ISSUER. Anything in this Resolution or the
Bond Documents to the contrary notwithstanding, the performance by the Issuer of all duties and
obligations imposed upon it hereby, the exercise by it of all powers granted to it hereunder, the
carrying out of all covenants, agreements and promises made by it hereunder, and the liability of
the Issuer for all warranties and other covenants hereunder, shall be limited solely to the Loan
Payments and other revenues and receipts derived from the Bond Documents, and the Issuer shall
not be required to effectuate any of its duties, obligations, powers or covenants hereunder except
to the extent of such Loan Payments and other revenues and receipts.
SECTION 19. NO PERSONAL LIABILITY. No recourse under or upon any obligation,
covenant or agreement contained in this Resolution, the Bond, any other Bond Document or under
any judgment obtained against the Issuer or Monroe County, Florida (the "County"), or by the
enforcement of any assessment or by legal or equitable proceeding by virtue of any constitution
or statute or otherwise or under any circumstances, under or independent of this Resolution, shall
be had against any member, agent, employee or officer, as such, past, present or future, of the
Issuer or County, either directly or through the Issuer or County, or otherwise, for the payment
for or to the Issuer or County or any receiver thereof, or for or to the holder of the Bond or
otherwise of any sum that may be due and unpaid by the Issuer or County upon the Bond. Any
and all personal liability of every nature, whether at common law or in equity, or by statute or by
constitution or otherwise, of any member or officer, as such, to respond by reason of any act or
omission on his part or otherwise, for the payment for or to the Issuer or County or any receiver
thereof, or for or to the holder of the Bond or otherwise, of any sum that may remain due and
unpaid upon the Bond is hereby expressly waived and released as a condition of and in
consideration for the execution of this Resolution and the issuance of the Bond.
SECTION 20. BOND NOT A DEBT OF STATE OR ISSUER. None of the State of
Florida, the County, any political subdivision thereof, or the Issuer shall in any event be liable for
the payment of the principal of or interest on the Bond, except that the Issuer shall be liable to pay
from the special sources as herein established and provided. The Bond issued hereunder shall
never constitute an indebtedness of the State of Florida or of any political subdivision of the State
of Florida or of the County or Issuer within the meaning of any state constitutional provisions or
statutory limitation and shall never constitute or give rise to the pecuniary liability of the State of
Florida or any political subdivision thereof, the County or of the Issuer or a charge against their
general credit. The holder of the Bond shall not have the right to compel any exercise of the ad
valorem taxing power of the State of Florida or of any political subdivision of said State to pay
the Bond or the interest thereon.
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SECTION 21. LAWS GOVERNING. This Resolution shall be governed exclusively by
the provisions hereof and by the applicable laws of the State of Florida.
SECTION 22. THE BOND DOCUMENTS. The Agreement, the Mortgage, the Bond
Purchase Agreement, the Assignment and the Environmental Indemnity, respectively, in the forms
thereof attached hereto as Exhibits B through F, respectively, with such changes, alterations and
corrections as may be approved by the Chair, such approval to be conclusively presumed by the
execution thereof by the Chair, are hereby approved by the Issuer, and the Issuer hereby
authorizes and directs the Chair to execute such Bond Documents, simultaneous with the issuance
of the Bond, and to deliver the Bond Documents to the Borrower all of the provisions of which,
when executed and delivered by the Issuer as authorized herein, shall be deemed to be a part of
this Resolution as fully and to the same extent as if incorporated verbatim herein. It is not
necessary for the seal of the Issuer to be impressed upon any Bond Document.
SECTION 23. SALE OF BOND: EXECUTION AND DELIVERY OF THE BOND
PURCHASE AGREEMENT. The Bond is hereby awarded to the Bank upon the terms and
conditions set forth in the Bond Purchase Agreement, a copy of which is attached hereto as
Exhibit D. Prior to the execution of the Bond Purchase Agreement the Bank shall file with the
. Issuer the disclosure and truth.;.in-bonding statements required by Section 218.385, Florida
Statutes, and competitive bidding for the Bond is hereby waived.
SECTION 24. NO THIRD PARTY BENEFICIARIES. Except as herein or in the
documents herein mentioned otherwise expressly provided, nothing in this Resolution or in such
documents, express or implied, is intended or shall be construed to confer upon any Person other
than the Issuer, the Bank and the Borrower any right, remedy or claim, legal or equitable, under
and by reason of this Resolution or any provision hereof or of such documents; this Resolution and
such documents being intended to be and being for the sole and exclusive benefit of such parties.
SECTION 25. PREREQUISITES PERFORMED. All acts, conditions and prerequisites
relating to the passage of this Resolution and required by the Constitution or laws of the State of
Florida to happen, exist and be performed precedent to and in the passage hereof have happened,
exist and have been performed as so required.
SECTION 26. GENERAL AUTHORITY. The Chair and the other officers and
employees of the Issuer are hereby authorized to do all acts and things required of them by this
Resolution and the other Bond Documents or desirable or consistent with the requirements hereof
or thereof, for the full punctual and complete performance of all terms, covenants and agreements
contained in the Bond, this Resolution and the other Bond Documents.
SECTION 27. RESOLUTION CONSTITUTES A CONTRACT. The Issuer covenants
and agrees that this Resolution shall constitute a contract between the Issuer and the holders from
time to time of the Bond and that all covenants and agreements set forth herein and in the Bond
Documents and to be performed by the Issuer shall be for the benefit and security of the holder
of the Bond.
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SECTION 28. SEVERABILITY. If anyone or more of the covenants, agreements, or
provisions contained herein or in the Bond shall be held contrary to any express provisions of law
or contrary to the policy of express law, though not expressly prohibited, or against public policy,
or shall for any reason whatsoever be held invalid, then such covenants, agreements, or provisions
shall be null and void and shall be deemed separable from the remaining covenants, agreements,
or provisions hereof and thereof and shall in no way affect the validity of any of the other
provisions of this Resolution or of the Bond.
SECTION 29. COVENANT REGARDING TAX STATUS OF BOND. The Issuer
covenants that it will not knowingly take any action, or knowingly fail to take any action, and will
not fail to take any action reasonably requested by the Bank or the Borrower, and will not take any
action which the Bank or the Borrower reasonably requests it not to take, if any such action or
failure to take action would adversely affect the exclusion from gross income of interest on the
Bond for federal income tax purposes.
SECTION 30. NOTICES. Any notice, request, complaint, demand, communication or
other paper given under or with respect to any Bond Document shall be sufficiently given and shall
be deemed given when delivered or mailed by registered or certified mail to the Notice Address
of the Issuer.
SECTION 31. REPEALER. All resolutions or ordinances or parts thereof of the Issuer
in conflict with the provisions herein contained are, to the extent of any such conflict, hereby
superseded and repealed.
SECTION 32. EFFECTIVE DATE. This Resolution shall take effect immediately upon
its passage and adoption.
SECTION 33. LIMITED APPROVAL. The approval given herein shall not be construed
as (i) an endorsement of the creditworthiness of the Borrower or the financial viability of the
Project, (ii) a recommendation to any prospective purchaser of the Bond, (iii) an evaluation of the
likelihood of the repayment of the debt service on the Bond, or (iv) an approval of any necessary
re-zoning applications nor for any other regulatory permits relating to the Project and the Issuer
shall not be construed by reason of its adoption of this resolution to have made any such
endorsement, fmding or recommendation or to have waived any of the County's or Issuer's rights
or estopping the County or the Issuer from asserting any rights or responsibilities it may have in
that regard.
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PASSED AND ADOPTED by the Monroe County Industrial Development Authority of
Monroe County, Florida, at a regular meeting of said Board held on June 14,2000.
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EXHIBIT A
FORM OF BOND
$1,000,000
MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BOND, SERIES 2000
(WESLEY HOUSE COMMUNITY CENTER, INC. PROJECT)
June _, 2000
$1,000,000.00
Monroe County Industrial Development Authority, an "authority" within the meaning of
Chapter 159, Part III, Florida Statutes (the "Issuer"), for value received, hereby promises to pay
to First Union National Bank (together with its successors and assigns as registered owner hereof,
the "Bank"), but solely from the sources as hereafter provided and not otherwise, the principal
sum of $1,000,000.00 or such lesser amount as shall have been Advanced pursuant to the herein
described Bond Purchase Agreement and shall be outstanding hereunder, and to pay interest on
the principal sum outstanding hereunder from the date hereof, but solely from the sources as
hereafter provided and not otherwise, at the rate per annum set forth below (as the same may be
adjusted, the "Interest Rate on the Bond"), payable in arrears monthly on the fifteenth day of each
month, beginning 15, 2000, until payment of such principal sum in full.
Subject to adjustment as herein provided, the Interest Rate on the Bond will be for each
Interest Period (hereinafter defined), the LIBOR-Based Rate (hereinafter defined). "Interest
Period" means each period commencing on the first day (or if not a Business Day, the next day
which is a Business Day) of each month and ending on, but not including, the first day (or if not
a Business Day, the next day which is a Business Day) of the next month, provided that the first
Interest Period shall commence on _, 2000 and end on , 2000. The Interest
Rate on the Bond will be calculated on the basis of a 360-day year for the actual number of days
elapsed.
"LffiOR-Based Rate" means, for each Interest Period, a rate per annum (rounded
upwards, if necessary, to the next higher 1/100 of 1 %) determined pursuant to the following
formula:
LIBOR-Based Rate = (0.6770 x Adjusted LIBOR (hereinafter defmed)) + 1.52325 %
A. "Adjusted LffiOR" means, for each Interest Period, a rate per annum determined
pursuant to the following formula: Adjusted LIBOR = LIBOR Base Rate x (1.00 - Eurodollar
Reserve Percentage).
B. "LIBOR Base Rate" means, for each Interest Period, the rate per annum at which,
in the opinion of the Bank, United States Dollars in the amount of $1,000,000 would be offered
to the Bank for settlement in the London interbank market at approximately 11 :00 a.m. London
time, two (2) London banking days prior to the first day of such Interest Period, for a maturity
of 30 days.
c. "Eurodollar Reserve Percentage" means, for each Interest Period, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100 of 1 %) which
is in effect on the day two London banking days preceding the fIrst day of such Interest Period as
prescribed by the Federal Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency reserves) for the
Bank in respect of Eurocurrency liabilities or any similar category of liabilities.
The Issuer hereby agrees to reimburse the Bank, solely from funds provided by the
Borrower, for any loss or expense which may arise or be attributable to the Bank's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or maintain the extension
of credit represented by this Bond (i) as a consequence of any failure by the Issuer to make any
payment when due of any amount due hereunder bearing interest at the LillOR-Based Rate, or (ii)
due to any payment or prepayment of principal hereof bearing interest at the LIBOR-Based Rate
on a date other than the last day of an Interest Period. The amount of such loss or expense shall
be determined, in the Bank's sole discretion, based upon the assumption that the Bank funded
100 % of the extension of credit represented by this Bond in the London interbank market and
using any reasonable attribution or averaging methods which the Bank deems appropriate and
practical. The Bank's calculations of any such loss or expense shall be furnished to the Issuer and
the Borrower (defined below), and shall be conclusively presumed to be correct, save for manifest
error.
If, after the date hereof, the introduction of, or any change in, any applicable law or in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by the Bank with
any request or directive (whether or not having the force of law) of such governmental authority,
central bank or comparable agency:
(A) shall subject the Bank to any tax, duty or other charge with respect to this Bond or
shall change the basis of taxation of payments to the Bank of the principal of or interest on this
Bond or any other amounts due in respect thereof (except for changes in the rate of tax on the
overall net income of the Bank imposed by any applicable jurisdiction in which the Bank's
principal executive office or lending office is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation,
any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by the Bank or shall impose on
the Bank or the foreign exchange and interbank markets any other condition affecting this Bond;
and the result of any of the foregoing is to increase the cost to the Bank of maintaining the
LIBOR-Based Rate or to reduce the amount of any sum received or receivable by the Bank under
this Bond in respect of interest at the LillOR-Based Rate, then the Bank shall promptly notify the
Issuer and the Borrower of such fact and demand compensation therefor and, within fifteen (15)
days after such notice by the Bank, the Issuer agrees to pay to the Bank, solely from funds
provided by the Borrower, for such additional amount or amounts as will compensate the Bank
for such increased cost or reduction. The Bank will promptly notify the Issuer and the Borrower
of any event of which it has knowledge which will entitle the Bank to compensation pursuant to
this paragraph; provided, however, that the Bank shall incur no liability whatsoever to the Issuer
or the Borrower in the event it fails to do so. The amount of such compensation shall be
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determined, in Bank's sole discretion, based upon the assumption that the Bank funded 100% of
the extension of credit evidenced by this Bond in the London interbank market, and using any
reasonable attribution or averaging methods which the Bank deems appropriate and practical. A
certificate of the Bank setting forth the basis for determining such additional amount or amounts
necessary to compensate the Bank shall be conclusively presumed to be correct, save for manifest
error.
If, at any time, the Bank shall determine that, by reason of circumstances affecting the
foreign exchange and interbank markets generally, deposits in eurodollars in the applicable
amounts are not being offered to the Bank, then the Bank shall promptly give notice thereof to the
Issuer and the Borrower. Thereafter, until the Bank notifies the Issuer and the Borrower that such
circumstances no longer exist, the obligation of the Bank to make the LffiOR-Based Rate available
to the Issuer shall be suspended, and the Federal Funds-Based Rate shall be the Interest Rate on
the Bond. "Federal Funds-Based Rate" shall mean the rate quoted by the Bank from time to time
as its then current rate for Federal Funds, plus 1/2 %, to be adjusted daily.
If, after the date hereof, the introduction of, or any change in, any applicable law or in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by the Bank with
any request or directive (whether or not having the force of law) of any such governmental
authority, central bank or comparable agency, shall make it unlawful or impossible for the Bank
to honor its obligations hereunder to make or maintain any LIBOR-Based Rate, the Bank shall
promptly give notice thereof to the Issuer and the Borrower. Thereafter, until the Bank notifies
the Issuer and the Borrower that such circumstances no longer exist, (A) the obligations of the
Bank to make available the LIBOR-Based Rate shall be suspended and thereafter the Federal
Funds-Based Rate shall be the Interest Rate on the Bond, and (B) if Bank may not lawfully
continue to maintain a LffiOR-Based Rate, the LffiOR-Based Rate shall immediately be converted
to the Federal Funds-Based Rate until such time as the Bank determines it again can offer the
LIBOR-Based Rate.
If at any time after the date hereof there should be any change in the maximum statutory
rate of Federal income tax, exclusive of additions to tax through incremental rate increases to
recapture the benefit of lower tax brackets applicable to the taxable income in excess of
$18,333,333 of the Bank (the "Bank Tax Rate"), then the LIBOR-Based Rate (or the Federal
Funds-Based Rate, if applicable), for so long as there shall not have occurred a Determination of
Taxability, shall be adjusted, effective as of the effective date of any such change in the Bank Tax
Rate, by multiplying the LIBOR-Based Rate (or the Federal Funds-Based Rate, if applicable) by
a fraction, the denominator of which is one hundred percent (100%) minus the Bank Tax Rate in
effect upon the date hereof (i.e. 35%), and the numerator of which is one hundred percent (100%)
minus the Bank Tax Rate after giving effect to such change.
So long as there shall not have occurred a Determination of Taxability, and any portion of
the principal amount of this Bond, or interest hereon, remains unpaid, if (i) any law, rule,
regulation or executive order is enacted or promulgated by any public body or governmental
agency which changes the basis of taxation of payments to any holder or former holder of principal
3
or interest payable pursuant to this Bond, including, without limitation, the imposition of any
excise tax or surcharge thereon, but excluding changes in the rates of tax applicable to the overall
net income of any such holder or former holder, or (ii) as a result of action by any public body
or governmental agency, any payment is required to be made by, or any federal, state or local
income tax deduction or allowance is denied to, any holder or former holder of this Bond by
reason of the ownership of, borrowing money to invest in, or receiving principal or interest from
this Bond, the Issuer will reimburse, solely from funds provided by the Borrower, each such
holder and former holder for any loss, cost, charge or reasonable expense with respect to any such
change, payment or loss of deduction or allowance.
If, on May 31, 2001, the outstanding principal balance hereof shall be more than
$775,000.00, then on May 31, 2001 an installment of principal shall be due hereon in such amount
as shall reduce the outstanding principal balance hereof to $775,000.00. Thereafter, the principal
amount of this Bond shall be payable in monthly installments, due on June 15, 2001 and on the
fifteenth day of each month thereafter (each such date, a "Principal Payment Date"), in the
amounts determined pursuant to the next sentence, and all remaining principal, together with
accrued and unpaid interest thereon, shall be unconditionally due and payable on June 15,2011
(the "Maturity Date") (hereinafter defined). Each monthly principal payment shall be in the
amount determined by the Bank in the following manner: the Bank shall prepare or cause to be
prepared and provided to the Issuer and the Borrower (hereinafter defined) an amortization
schedule providing for repayment of the principal amount outstanding hereunder as of May 31,
2001, based upon the Assumed Rate (hereinafter defined) as of that date, and providing for
monthly payments of principal of and accrued interest hereon on the Principal Payment Dates in
such amounts as shall be determined by generating an amortization schedule providing for
approximately equal monthly payments of principal and interest through and including the June
15, 2021, with the resulting amounts being the amount of principal to be paid on each of the
Principal Payment Dates through and including May 15, 2011; the amount of the monthly
principal payment shall thereupon be fixed, notwithstanding subsequent changes in the Interest
Rate on the Bond, but subject to adjustment in the event of prepayment of principal hereof as
hereinafter described.
If the Borrower shall have, on or before May 31, 2001 entered into one or more Interest
Rate Protection Agreements with the Bank, whereby the Borrower is the fixed rate payor and the
Bank is the floating rate payor, having a notional amount or amounts equal (in the aggregate) to
the principal amount outstanding on this Bond, then the Assumed Rate shall be (for each principal
amount equal to each notional amount) the fixed rate(s) payable by the Borrower, otherwise the
Assumed Rate shall be the Interest Rate on the Bond as of May 31, 2001.
The principal of and interest on this Bond is payable in any coin or currency of the United
States of America which at the time of such payment is legal tender for public and private debts,
at such place as the registered owner hereof may designate to the Issuer and the Borrower
(hereinafter defined) in writing. Except as provided herein with respect to prepayments, all
payments by the Issuer pursuant to this Bond shall apply first to accrued interest, then to other
charges due the Bank, and the balance thereof shall apply to the principal sum due.
4
Upon the occurrence of a Determination of Taxability (hereinafter defined), the Interest
Rate on the Bond shall be adjusted to a rate per annum equal to 147.7% of the interest rate
otherwise borne hereby, as adjusted from time to time (the "Adjusted Interest Ratetl) calculated
on the basis of a 360-day year and the actual number of days elapsed, as of and from the date such
determination would be applicable with respect to this Bond (the "Accrual Datetl) and (i) the Issuer
shall, from the sources hereinafter provided and not otherwise, immediately pay.to the registered
owner hereof, or any former registered owner hereof, as may be appropriately allocated, an
amount equal to the sum of (1) the difference between (A) the total interest that would have
accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to the date of the
Determination of Taxability, and (B) the actual interest paid by the Issuer on this Bond from the
Accrual Date to the date of Determination of Taxability, but then only to the extent such owner
or owners include (through amended tax return, agreement with the Internal Revenue Service or
otherwise) such actual interest in such owner's or owners' gross income for federal income tax
purposes, and (2) any loss, cost, charge or expense suffered by such owner and/or former owner
arising out of the Determination of Taxability, including without limitation amounts of interest and
penalties required to be paid as a result of any additional state and federal income taxes by such
owner and former owner arising as a result of such Determination of Taxability; and (ii) from and
after the Determination of Taxability, this Bond shall continue to bear interest at the Adjusted
Interest Rate for the period such determination continues to be applicable with respect to this
Bond. The adjustment provided for in this paragraph shall survive the payment of this Bond until
the expiration of the statute of limitations under which the interest on this Bond could be required
to be included in the gross income of the registered owner thereof for federal income taxes
purposes.
As used in this Bond,
(1) "Code" means the Internal Revenue Code of 1986, as amended; and
(2) "Determination of Taxability" shall be defmed as and shall be deemed to have
occurred on the first to occur of the following:
(a) on that date when the Bank notifies the Borrower that it has received a written
opinion of Bond Counsel to the effect that an Event of Taxability shall have
occurred unless, within two years after receipt by the Borrower of such notification
from the Bank, the Borrower shall obtain and deliver to the Bank a favorable ruling
or determination letter issued to or on behalf of the Borrower by the Commissioner
or any District Director of the Internal Revenue Service (or any other government
official e4ercising the same or a substantially similar function from time to time);
(b) on that date when the Borrower shall be advised in writing by the Commissioner
or any District Director of the Internal Revenue Service (or any other government
official or agent exercising the same or a substantially similar function from time
to time) that, based upon filings of the Borrower, or upon any audit of the
Borrower, or upon any other ground whatsoever, an Event of Taxability shall have
occurred;
5
(c) on that date when the Borrower shall receive notice in writing from the Bank that
the Internal Revenue Service (or any other government agency exercising the same
or a substantially similar function from time to time) has assessed as includable in
the gross income for Federal income tax purposes of the Bank the interest on the
Bonds due to the occurrence of an Event of Taxability; or
provided, however, that no Determination of Taxability shall occur under subparagraph
(b) or ( c) hereof unless the Borrower has been afforded the opportunity, at its expense, to
contest any such assessment or unfavorable ruling or notice and, further, no Determination
of Taxability shall occur until such contest, if made, has been fmally determined; provided
further, however, that upon demand (with reasonable documentation) from the Bank, the
Borrower shall immediately reimburse the Bank for any payments the Bank shall be
obligated to make as a result of the Determination of Taxability during any such contest.
(3) "Event of Taxability" shall mean interest on this Bond is required to be
included in the gross income of the Bank for federal income tax purposes.
(4) "Maximum Corporate Tax Rate" means, as of any date of determination, the
highest marginal tax rate (expressed as a decimal) applicable to the taxable income of corporations
(as currently set forth in Section 11 of the Code) without regard to any increase in tax designated
to normalize the rate for all income at the highest marginal tax rate or to phase out the benefit of
graduated tax rates and impose a flat-tax at a specified rate (for example, the tax imposed by the
last two sentences of Section 11(b)(I) of the Code as in effect on the date hereof), which rate on
the date hereof is .35.
The principal of and interest on this Bond may be prepaid at the option of the Borrower
exercised on behalf of the Issuer at any time and in whole or in part. Principal prepayments made
at the option of the Borrower shall be applied to the remaining principal payments in the inverse
order of their due dates.
This Bond is issued pursuant to and in full compliance with Parts II and III of Chapter 159,
Florida Statutes (the "Act") and a Resolution ("Resolution") adopted by the Issuer on June 14,
2000. Pursuant to law and the proceedings under which this Bond is issued, this Bond is payable
solely out of revenues and receipts derived from the Note (hereinafter defined) and a Loan
Agreement, dated _ _,2000 (the "Loan Agreement"), between the Issuer and Wesley House
Community Center, Inc., a Florida not-for-profit corporation (the "Borrower"), pursuant to which
the Issuer has loaned money to the Borrower to finance and refinance the cost of acquisition,
restoration and renovation of a social service center to be owned and operated by the Borrower
and to pay a portion of the expenses incurred in connection with the issuance of the Bond.
Pursuant to the Loan Agreement, the Borrower has agreed to make payments to the Issuer or its
assigns in such amounts and at such times as are required to provide for timely payment of the
principal of and interest on this Bond. As evidence of its indebtedness under the Loan Agreement,
the Borrower has executed and delivered to the Issuer its Promissory Note ("Note"), dated
_, 2000, and its Mortgage, Assignment of Rents and Security Agreement dated _ _, 2000
6
(the "Mortgage and Security Agreement," and together with the Loan Agreement and the Note,
the "Assigned Documents").
Pursuant to a Bond Purchase and Construction Financing Agreement (the "Bond Purchase
Agreement") dated as of _, 2000, among the Issuer, the Borrower and the Bank the
principal amount of this Bond shall be advanced i~ installments from time to time provided that
the maximum principal amount of this Bond shall be $1,000,000.00.
Pursuant to an Assignment of Loan Agreement, Mortgage, Promissory Note and Other
Collateral, the Issuer has assigned the Issuer's rights under the Assigned Documents, including
all its rights, title and interest to receive the Note and the repayments on the Loan (subject to the
reservation of certain rights of the Issuer, including all its rights to notices, payment of certain
expenses and indemnity), to the Bank.
Reference is made to the Loan Agreement, the Bond Purchase Agreement and the
Resolution for a more complete statement of the provisions thereof and of the rights of the Issuer
and the Bank. Terms used herein in capitalized form and not otherwise defined herein have the
meanings ascribed thereto in the aforementioned documents. This Bond is subject to all terms and
conditions of the Loan Agreement, the Bond Purchase Agreement and the Resolution, and by the
purchase and acceptance of this Bond, the registered owner hereof signifies assent to all of the
provisions of the aforementioned documents.
This Bond shall bear interest on any overdue installment of principal and (to the extent
permitted by law) interest at the Default Rate (as defined in the Loan Agreement). As further
described in the Resolution and the Loan Agreement, upon the occurrence of an Event of Default,
the Bank may declare all unpaid principal hereof immediately due and payable, and upon such
declaration of acceleration, the principal amount hereof, together with interest to the date of
payment, shall be and become immediately due and payable.
Should the Issuer fail to pay from the sources provided herein the installments of interest
or principal (if applicable) within seven (7) days after the due date provided herein (after the
expiration of any applicable grace period), the Issuer further promises to pay, solely from the
sources provided herein, a late payment charge equal to four percent (4 %) of the amount of the
unpaid installment as liquidated compensation to the Bank for the extra expense to the Bank to
process and administer the late payment, the Issuer 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 the Issuer a right to cure a Default. Imposition of late charges
is not contingent upon the giving of any notice or lapse of any cure period provided for in the
Bond Documents and shall not be deemed a waiver of any right or remedy of the Bank including
without limitation, acceleration of this Bond.
This Bond is transferable by the registered owner, but only in the manner, subject to the
limitations and upon payment of the charges provided in the Resolution, and upon surrender and
cancellation of this Bond. Upon such transfer a new fully registered Bond will be issued to the
7
transferee in exchange therefor. The Issuer may deem and treat the registered owner hereof as
the absolute owner hereof for the purpose of receiving payment of or on account of principal and
interest due hereon and for all other purposes, and the Issuer shall not be affected by any notice
to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the
Resolution or in this Bond, or under any judgment obtained against the Issuer or by the
enforcement of any assessment or by any legal or equitable proceeding by virtue of any
constitution or statute or otherwise or under any circumstances, under or independent of the
Resolution, shall be had against any officer or member, as such, past, present or future, of the
Issuer, either directly or through the Issuer or otherwise, for the payment for or to the Issuer or
any receiver thereof or for or to the owner of this Bond or otherwise, of any sum that may be due
and unpaid by the Issuer upon this Bond. Any and all personal liability of every nature, whether
at common law or in equity, or by statute or by constitution or otherwise, of any such officer or
member, as such, to respond by reason of any act or omission on his part or otherwise for the
payment for or to the Issuer or for or to the owner of this Bond or otherwise, of any sum that may
remain due and unpaid upon this Bond, is hereby expressly waived and released as a condition of
and consideration for the execution and the issuance of this Bond.
All of the rights, remedies, powers and privileges (together, "Rights") of the Bank
provided for in this Bond and in any other Bond Document are cumulative of each other and of
any and all other Rights at law or in equity. The resort to any Right shall not prevent the
concurrent or subsequent employment of any other appropriate Right. No single or partial
exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every
Right may be exercised at any time and from time to time. No failure by the Bank to exercise,
nor delay in exercising any Right, including but not limited to the right to accelerate the maturity
of this Note, shall be construed as a waiver of any Default or as a waiver of the Right. Without
limiting the generality of the foregoing provisions, the acceptance by the Bank from time to time
of any payment under this Bond which is past due or which is less than the payment in full of all
amounts due and payable at the time of such payment shall not (i) constitute a waiver of or impair
or extinguish the right of the holder hereof to accelerate the maturity of this Bond or to exercise
any other Right at the time or at any subsequent time, or nullify any prior exercise of any such
Right, or (ii) constitute a waiver of the requirement of punctual payment and performance or a
novation in any respect.
If the Bank retains an attorney in connection with any Default or at the Maturity Date or
to collect, enforce ~r defend this Bond or any other Bond Document in any lawsuit, at trial, or in
any appellate, probate, reorganization, bankruptcy or other proceeding, or if the Issuer sues the
Bank in connection with this Bond or any other Bond Document and does not prevail, then the
Issuer agrees to pay to the Bank, solely from the sources provided herein, in addition to principal,
interest and any other sums owing to the Bank under the Bond Documents, all reasonable costs
and expenses incurred by the Bank in trying to collect this Bond or in any such suit or proceeding,
including without limitation reasonable attorneys' fees, paralegals' fees and costs.
8
In no event (including but not limited to prepayment, default, demand for payment, or
acceleration of maturity) shall the interest taken, reserved, contracted for, charged or received
under this Bond or under any of the other Bond Documents or otherwise, exceed the maximum
nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from any possible
construction of any document, interest would otherwise be payable in excess of the Maximum
Amount, then ~ facto, such document shall be reformed and the interest payable reduced to the
Maximum Amount, without necessity of execution of any amendment or new document. If the
holder hereof ever receives interest in an amount which apart from this provision would exceed
the Maximum Amount, the excess shall, without penalty, be refunded to the Issuer, or at the
option of the Issuer, be applied to the unpaid principal of this Bond in order of maturity of
installments and not to the payment of interest. The Bank does not intend to charge or receive
unearned interest on acceleration. All interest paid or agreed to be paid to the holder hereof shall
be spread throughout the full term (including any renewal or extension) of the debt so that the
amount of interest does not exceed the Maximum Amount.
To the extent permitted by law the Issuer agrees that any controversy or claim between or
among the parties hereto including but not limited to those arising out of or relating to this Bond
or any related agreements or instruments, including any claim based on or arising from an alleged
tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or
if not applicable, the applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes of Judicial Arbitration and Mediation Services, Inc. (J.A.M.S.), and the
special rules set forth below. In the event of any inconsistency, the special rules shall control.
Judgment upon any arbitration award may be entered in any court having jurisdiction. The Issuer
or the Bank may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this Bond applies in any court having jurisdiction
over such action. The arbitration shall be conducted in Monroe County, Florida and administered
by Endispute, Inc., d/b/a J .A.M.S./Endispute who will appoint an arbitrator; if
J .A.M.S./Endispute is unable or legally precluded from administering the arbitration, then the
American Arbitration Association will serve. All arbitration hearings will be commenced within
90 days of the demand for arbitration; further, the arbitrator shall only, upon a showing of cause,
be permitted to extend the commencement of such hearing for up to an additional 60 days.
THIS BOND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF THE ISSUER
WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR
STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO A
PECUNIARY LIABILITY OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL
CREDIT. THE FULL FAITH AND CREDIT OF THE ISSUER ARE NOT PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS BOND. THE OWNER OF
THIS BON-D SHALL NOT HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE AD
VALOREM TAXING POWER OF THE STATE OF FLORIDA OR OF ANY POLITICAL
SUBDIVISION OF SAID STATE TO PAY THIS BOND OR THE INTEREST THEREON.
THIS BOND IS NOT A DEBT OF THE STATE OF FLORIDA OR OF ANY POLITICAL
SUBDIVISION OF SUCH STATE OTHER THAN THE ISSUER, LIMITED AS AFORESAID,
AND NEITHER SAID STATE NOR ANY SUCH POLITICAL SUBDIVISION THEREOF
OTHER THAN THE ISSUER, LIMITED AS AFORESAID, SHALL BE LIABLE HEREON.
9
THIS BOND AND ALL PAYMENTS TO BE MADE BY THE ISSUER HEREUNDER OF ANY
NATURE WHATSOEVER ARE PAYABLE SOLELY FROM THE SOURCES PROVIDED
THEREFOR IN THE HEREINAFfER DESCRIBED RESOLUTION (I.E., P A YMENTSMADE
BY THE BORROWER OR DERIVED FROM THE EXERCISE OF REMEDIAL RIGHTS
AGAINST THE BORROWER AND THE SECURITY PROVIDED FOR THIS BOND AND
NOT ANY OTHER FUNDS OF THE ISSUER).
IT IS HEREBY CERTIFIED, RECITED AND DECLARED by the Issuer that all acts,
conditions and things required to exist, to happen and to be performed precedent to and in the
issuance of this Bond do exist, have happened and have been performed in due time, form and
manner and by the appropriate parties as required by law.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed in its name and
on its behalf by its Chair as of June 15,2000.
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Chair
G: \06208\ 165\Bond(3). wpd
10
EXHffiIT B
LOAN AGREEMENT
LOAN AGREEMENT
Between
WESLEY HOUSE COMMUNITY CENTER, INC.
And
MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
DATED AS OF
_ _, 2000
THE RIGHTS AND THE INTEREST OF
MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
IN THIS LOAN AGREEMENT (EXCEPT UNASSIGNED ISSUER'S RIGHTS)
HAVE BEEN ASSIGNED TO
FIRST UNION NATIONAL BANK
TABLE OF CONTENTS
(This Table of Contents is not a part of the Loan Agreement but is for convenience of reference
only.)
Section 1.1.
Section 1.2.
Section 1.3.
Section 1.4.
Page
ARTICLE I
DEFINITIONS
Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions ............................................ 1
Interpretation .......................................... 5
Captions and Headings .................................... 5
ARTICLE II
REPRESENTATIONS AND TAX COMPLIANCE
Section 2.1. Representations of the Issuer ................................ 6
Section 2.2. Representations and Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . 6
Section 2.3. Tax Representations, Warranties and Covenants of the Borrower . . . . . . . . . 9
Section 2.4. Additional Tax Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
ACQUISITION, CONSTRUCTION AND
IMPROVEMENT OF THE PROJECT;
ISSUANCE OF BOND
Section 3.1. Agreement To Acquire, Construct and Equip the Project ............. 15
Section 3.2. Issuance of the Bond; Loan of Proceeds ........................ 15
Section 3.3. Insufficiency of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PAYMENTS
Loan Repayment; Delivery of Note ........................... 16
Additional Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Place of Payments ...................................... 16
Obligations Unconditional ................................. 17
Assignment of Certain Bond Documents . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6.
Section 5. 7 .
Section 5.8.
Section 5.9.
Section 5.10.
Section 5.11.
Section 5.12.
Section 5.13.
Section 5.14.
Section 5.15.
Section 5.16.
Section 5.17 .
Section 5.18.
Section 5.19.
Section 5.20.
Section 5.21.
Section 6.1.
Section 6.2.
Section 7 .1.
Section 7.2.
Section 8.1.
Section 8.2.
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Borrower to Maintain its Existence ........................... 18
Indemnification ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Contracts ............................................ 19
Construction of the Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Storage of Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Notice to the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Assignment of Contracts and Plans ........................... 21
Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Construction Consultant .................................. 22
Reports and Vouchers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Payment of Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Post-Closing Environmental Assessments ....................... 23
Interest Rate Protection Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Miscellaneous Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Insurance Policies ...................................... 25
Bank's Counsel's Fees ................................... 25
Subordinate Financing and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI
PREPAYMENT OF NOTE
Optional Prepayment .................................... 27
Mandatory Prepayment; Acceleration of Note .................... 27
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Remedies on Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VIII
MISCELLANEOUS
Usury Laws .......................................... 31
The Issuer's or Bank's Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.3.
Section 8.4.
Section 8.5.
Section 8.6.
Section 8.7 .
Section 8.8.
Section 8.9.
Section 8.10.
Section 8.11.
Section 8.12.
Section 8.13.
Section 8.14.
Miscellaneous ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Notices ............................................. 32
Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Modification or Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Costs and Expenses ..................................... 33
Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
No Assignment ........................................ 34
Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Interpretation ......................................... 34
No Partnership, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Records ............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of __,
2000 by MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, an "authority"
within the meaning of the hereinafter defined Act (the "Issuer") and WESLEY HOUSE
COMMUNITY CENTER, INC., a Florida corporation not-for-profit (the "Borrower"):
WIT N E SSE T H:
WHEREAS, pursuant to the provisions of the laws of the State of Florida, the Issuer may
issue industrial development revenue bonds to provide funds for the making of loans to finance
"social service centers" such as the facility to be owned and operated by the Borrower as described
herein; and
WHEREAS, at the request of the Borrower, the Issuer proposes to issue the Bond
(hereinafter defmed) and to loan the proceeds thereof to the Borrower pursuant to this Agreement
to be applied to the payment of the Refinanced Debt and Project Costs (hereinafter defined).
NOW THEREFORE, in consideration of the premises and the mutual representations and
agreements hereinafter contained, the Issuer and the Borrower agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and terms defined
elsewhere in this Agreement or by reference to another document, the words and terms set forth
in Section 1.2 hereof shall have the meanings set forth therein unless the context or use clearly
indicates another or different meaning or intent. Those words and terms not expressly defined
herein and used herein with initial capitalization where rules of grammar do not otherwise require
capitalization, or which are otherwise defined terms under the other Bond Documents (as
hereinafter defined) shall have the meanings assigned to them in such Bond Documents.
Section 1.2. Definitions. As used herein:
"Act" means Chapter 159, Parts II and III, Florida Statutes.
"Additional Payments" means the amounts required to be paid by the Borrower pursuant
to the provisions of Section 4.2 hereof.
"Agreement" means this Loan Agreement, as amended or supplemented from time to time.
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"Assignment" means the Assignment of Loan Agreement, Promissory Note, Mortgage and
Other Collateral dated of even date herewith, among the Issuer, the Bank and the Borrower.
"Bank" means First Union National Bank and its successors and assigns as registered
owner of the Bond.
"Bank Counsel" means Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A., or
another attorney or firm of attorneys satisfactory to the Bank and nationally recognized as
experienced in matters relating to the tax exemption of interest on bonds of states and political
subdivisions thereof.
"Bond Purchase Agreement" means the Bond Purchase and Construction Financing
Agreement dated of even date herewith among the Issuer, the Borrower and the Bank.
"Bond Service Charges" means all principal and interest and other payments of any nature
due on the Bond.
"Bond" means the Issuer's not to exceed $1,000,000 principal amount Industrial
Development Revenue Bond, Series 2000 (Wesley House Community Center, Inc. Project).
"Bond Documents" means the Resolution, the Bond, the Pledge Agreement, this
Agreement, the Note, the Mortgage, the Assignment, the Environmental Agreement, any Interest
Rate Protection Agreement, the Budget, each Draw Request and the Bond Purchase Agreement.
"Borrower" means Wesley House Community Center, Inc., a Florida corporation
not-for-profit, and any lawful successors and assigns thereof permitted by this Agreement.
"Business Day" means any day other than a Saturday, Sunday or day on which the office
of the Bank at the Notice Address is lawfully closed.
"Certificate as to Arbitrage and Other Tax Matters" means the Certificate as to Arbitrage
and Other Tax Matters signed by the Issuer and the Borrower in connection with the issuance of
the Bond.
"Code" means the Internal Revenue Code of 1986, as amended.
"Completion Date" means May 31, 2001.
"Default" means any of the events described as an Event of Default in Section 7.1 hereof.
"Default Rate" means the lesser of (i) the Interest Rate on the Bond (without regard to this
adjustment) plus 4% per annum or (ii) the maximum rate permitted by law.
"Environmental Agreement" means the Environmental Indemnity Agreement dated of even
date herewith among the Borrower, the Bank and the Issuer.
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"Excusable Delays" means unusually adverse weather conditions which have not been
taken into account in the construction schedule, fire, earthquake or other acts of God, strike,
lockout, acts of public enemy, riot or insurrection or any unforeseen circumstances or events
(except financial circumstances or events or matters which may be resolved by the payment of
reasonable amounts of money) beyond the control of the Borrower, provided the Borrower shall
notify the Bank in writing within five (5) days after such occurrence, but no Excusable Delay shall
extend the Completion Date or suspend or abate any obligation of the Borrower or any other
person to pay any money.
"Financial Statements" means a balance sheet, income statement or statement of revenues,
statements of cash flow and amount and sources of contingent liabilities, and a reconciliation of
changes in equity or fund balance, and, unless the Bank otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a parent of a subsidiary
entity.
"Fiscal Year" means the one-year period beginning on 1 of a year, or such
other one-year period selected by the Borrower as its fiscal year provided written notice thereof
is provided to the Bank by the Borrower and provided the Bank gives its written consent thereto.
"Indebtedness" means any and all indebtedness of the Borrower evidenced, governed or
secured by or arising under any of the Bond Documents.
"Interest Rate Protection Agreement" means any and all interest rate swap agreements,
interest cap agreements, interest rate collar agreements, exchange agreements, forward currency
exchange agreements, forward rate currency or interest rate options, foreign currency hedge, or
any similar agreements or arrangements entered into by the Borrower and the Bank in connection
with the Bond or the Loan to hedge the risk of variable interest rate volatility or fluctuations of
interest rates, as such agreements or arrangements may be modified, supplemented, and in effect
from time to time, and any and all cancellations, buy backs, reversals, terminations, or
assignments of any of the foregoing.
"Issuer" means Monroe County Industrial Development Authority, an "authority" within
the meaning of the Act, its successors and assigns.
"Issuer's Fees and Expenses" means those reasonable fees and expenses, if any, payable
to or incurred by the Issuer with respect to the issuance of the Bond, including any reasonable fees
and expenses of counsel to the Issuer, and further including any expenses incurred by the Issuer
as a result of any reporting requirements imposed upon the Issuer as a result of the issuance of the
Bond.
"Loan" means the loan by the Issuer to the Borrower of proceeds received from the sale
of the Bond.
"Loan Payments" means the amounts required to be paid by the Borrower in repayment
of the Loan pursuant to the provisions of the Note and of Section 4.1 hereof.
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"Mortgage" means the Mortgage, Assignment of Rents and Security Agreement, dated of
even date herewith, from the Borrower to the Issuer.
"N ote" means the promissory note of the Borrower, dated as of even date herewith, in the
form attached hereto as Exhibit A, and in the maximum principal amount of $1,000,000,
evidencing the obligation of the Borrower to make Loan Payments.
"Notice Address" means:
(a) As to the Issuer:
Monroe County Industrial Development Authority
c/o County Attorney
Monroe County, Florida
502 Whitehead Street, 3rd Floor
Key West, Florida 33040
(b) As to the Borrower:
Wesley House Community Center, Inc.
1300 Truman Street
Key West, Florida 33040
Attention: Executive Director
(c) As to the Bank:
First Union National Bank
3131 Northside Drive
Key West, Florida 33040
Attention: Commercial Lending
or such additional or different address, notice of which is given under Section 8.4 hereof.
"Permitted Changes" means changes to the Plans or Improvements, provided the cost of
any single change or extra does not exceed $5,000.00 and the aggregate amount of all such
changes and extras (whether positive or negative) does not exceed $10,000.00.
"Person" or words importing persons mean firms, associations, partnerships (including
without limitation, general and limited partnerships), joint ventures, societies, estates, trusts,
corporations, public or governmental bodies, other legal entities and individuals.
"Project" means the construction of the Improvements described in the Plans.
"Project Costs" or "Costs of the Project" means any item of cost or expense described
within the defmition of "Cost" set forth in Section 159.44(5), Florida Statutes, and incurred with
respect to the Project.
"Refmanced Debt" means Note, dated July 7, 1998, in the amount of $450,000, made by
Borrower and payable to NationsBank, N .A.
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"Resolution" means the Resolution adopted by the Issuer on June 14, 2000 authorizing the
issuance of the Bond and the transaction contemplated hereby.
"State" means the State of Florida.
"Unassigned Issuer's Rights" means all of the rights of the Issuer to receive Additional
Payments under Section 4.2 hereof, to be held harmless and indemnified under Sections 5.2 and
5.10 hereof and under Section 5.16 of the Mortgage, to be reimbursed for attorney's fees and
expenses under Section 8.7 hereof and under Section 5.12 of the Mortgage, to give or withhold
consent to assignments, amendments, changes, modifications, alterations and termination of this
Agreement under Sections 8.2, 8.6 or 8.9 hereof, and to receive notice pursuant to Section 10.5
of the Mortgage.
Section 1.3. Inter:pretation. Any reference herein to the Issuer or to any officer or
employee thereof includes entities or officials succeeding to their respective functions, duties or
responsibilities pursuant to or by operation of law or who are lawfully performing their functions.
Unless the context indicates otherwise, words importing the singular number include the
plural number, and vice versa; the terms "hereof," "hereby," "herein," "hereto," "hereunder,"
"hereinafter" and similar terms refer to this Agreement; and the term "hereafter" means after, and
the term "heretofore" means before, the date of delivery of the Bond. Words of any gender
include the correlative words of the other genders, unless the sense indicates otherwise.
Section 1.4. Captions and Headin~s. The captions and headings in this Agreement are
solely for convenience of reference and in no way define, limit or describe the scope or intent of
any Articles, Sections, subsections, paragraphs, subparagraphs or clauses hereof.
(End of Article I)
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ARTICLE II
REPRESENTATIONS AND TAX COMPLIANCE
Section 2.1. Representations of the Issuer. The Issuer represents that: (a) it is an
"authority" within the meaning of the Act; (b) it has duly accomplished all prerequisites necessary
to be accomplished by it prior to the issuance and delivery of the Bond and the execution and
delivery of the Bond Documents to which it is a party; (c) it is not in violation of or in conflict
with any provisions of the laws of the State which would impair its ability to carry out its
obligations contained in the Bond Documents to which it is a party; (d) it is empowered to enter
into the transactions contemplated by the Bond Documents to which it is a party; (e) it has duly
authorized the execution, delivery and performance of the Bond Documents to which it is a party;
and (f) it will do all things in its power in order to maintain its existence or assure the assumption
of its obligations under the Resolution and the Bond Documents to which it is a party.
Section 2.2. Representations and Covenants of the Borrower. The Borrower represents
and covenants that:
(a) The Borrower is duly organized and validly existing as a corporation not-for-profit
under the laws of the State.
(b) The Borrower has full power and authority to conduct its business as presently
conducted, to refinance the Refinanced Debt and to acquire, restore, renovate, own and operate
the Project as contemplated hereby, to issue (execute) the Note and to enter into the Bond
Documents to which it is a party and all other documents and instruments required to be executed
and delivered by the Borrower in connection with this Agreement and the fmancing contemplated
hereby and to perform all duties and obligations of the Borrower under the Bond Documents to
which it is a party and under such other documents. Such execution and performance have been
duly authorized by all necessary approvals.
(c) The Bond Documents to which it is a party and any other documents and
instruments required to be executed and delivered by the Borrower in connection with this
Agreement or the fmancing contemplated hereby, when executed and delivered, will constitute the
duly authorized, legal, valid and binding obligations of the Borrower and will be enforceable
against the Borrower in accordance with their respective terms (except to the extent that
enforceability may be affected or limited by applicable bankruptcy, insolvency and other similar
debtor relief laws affecting the enforcement of creditors' rights or the availability of equitable
remedies) .
(d) The execution, delivery and performance of the Bond Documents to which it is a
party and of any other documents or instruments to be executed and delivered by the Borrower
pursuant to this Agreement, the refinancing of the Refinanced Debt and the acquisition,
restoration, renovation and use of the Project will not (i) to the best of the Borrower's knowledge
violate any provisions of law, including any federal tax or securities laws or State securities laws
or any applicable rule, regulation, order, writ, injunction or decree of any court or governmental
6
authority, or (ii) conflict with, be inconsistent with, or result in any breach or default of any of
the terms, covenants, conditions or provisions of the organizational documents of the Borrower
or any indenture, mortgage, deed of trust, instrument, document, agreement or contract to which
the Borrower is a party or to or by which the Borrower or its properties may be subject or bound.
(e) The Borrower has no knowledge of any condition, circumstance, event, agreement,
document, instrument, restriction, litigation or proceeding (or threatened litigation or proceeding
or basis therefor) which could adversely affect the validity of the Bond Documents, or which could
adversely affect the ability of the Borrower to complete the Project as contemplated hereby, or
which could have a material adverse affect on the ability of the Borrower to perform its obligations
under the Bond Documents to which it is a party, or which would constitute an event of default
under any of the Bond Documents, or which would constitute such an event of default with the
giving of notice or lapse of time or both.
(f) To the best of the Borrower's knowledge, the construction and the present and
contemplated use and occupancy of the Project will not violate or conflict with any applicable law,
statute, ordinance, rule, regulation, order or decree of any kind, including without limitation,
zoning, building, environmental, land use, noise abatement, occupational health and safety, or
other laws, or any building permit or license, or any condition, grant, easement, covenant,
condition or restriction, whether or not recorded.
(g) All historical financial statements of the Borrower submitted by the Borrower to
the Issuer or the Bank in connection with the transaction contemplated by this Agreement were
true and correct as of the date thereof in all material respects and fairly presented the respective
financial conditions and results of operations of the Borrower, and any pro forma financial
statements which purport to show future financial results are a fair and reasonable projection of
future operations based upon facts known to the Borrower as of the date of such pro forma
statements.
(h) All materials submitted to the Bank by or on behalf of the Borrower at any time in
connection with or in furtherance of any of the Bond Documents fully and fairly stated, in all
material respects, the matters with which they purported to deal, and neither misstated any
material fact nor, separate or in the aggregate, failed to state any material fact necessary to make
the statements made therein not misleading.
(i) Subject only to payment of fees, all utility and municipal services required for the
construction, occupancy, operation and use of the Project, including, but not limited to, water
supply, storm and sanitary sewage disposal systems, gas, electric and telephone facilities are
available for use from tap ons at or in the vicinity of the boundaries of the Property over dedicated
and accepted public rights-of-way abutting the Property or over valid and perpetual easements of
record and written permission has been obtained or will be obtained from the applicable utility
companies or governmental units to connect the Project into each of said services.
G) All governmental permits and licenses required by applicable law to construct,
occupy, operate and use the Project have been issued or will be issued prior to construction and
7
are or will be in full force or, if the present state of the Project does not allow such issuance, then
the Borrower knows of no facts which would prevent the issuance of such permits and licenses
when required as the Project is constructed.
(k) The storm and sanitary sewage disposal systems, water system and all mechanical
systems of the Project do (or when constructed will) comply with all applicable environmental,
pollution control and ecological laws, ordinances, rules and regulations. If applicable, the
applicable environmental protection agency, pollution control board and/or other governmental
agencies having jurisdiction of the Property and Project have issued their permits for the
construction, tap-on and operation of those systems or, if the present state of the Project does not
allow such issuance, but such issuance will ultimately be required, the Borrower knows of no facts
which would prevent such issuance other than the payment of any required fees.
(1) All utility, parking, access (including curb-cut and highway access), construction,
recreational and other permits and easements required for the construction and use of the Project
have been granted and issued or, if not yet granted, the Borrower knows of no facts which would
prevent issuance as required.
(m) When completed the Project will not encroach upon any building line, set-back line,
sideyard line, or other recorded or visible easement or other easement of which the Borrower is
aware or has reason to believe may exist with respect to the Property except as approved by the
Bank, which approval will not be unreasonably withheld.
(n) Bond proceeds will be used only to refinance the Refinanced Debt and to pay
Project Costs. The Project will be located entirely within Monroe County, Florida.
( 0 ) The Borrower shall not make any amendment to its Articles of Incorporation or
bylaws without the prior written consent of the Bank, which consent will not be unreasonably
withheld.
(p) The Borrower shall not permit the entry of any monetary judgment or the
assessment against, the filing of any tax lien against or the issuance of any writ of garnishment
or attachment against any property of or debts due the Borrower.
(q) The Borrower shall not permit any material default or event of default to occur in
the performance of any obligation (whether payment or otherwise) under any loan, contract or
agreement of Borrower.
(r) The Borrower shall not create, assume or permit to exist any mortgage, security
deed, deed of trust, pledge, lien, charge or other encumbrance upon any of its assets, whether now
owned or hereafter acquired, other than (i) pursuant to the Bond Documents; (ii) liens for taxes
not then due and payable or being contested in good faith; (iii) liens occurring by law for employee
benefits; (iv) Permitted Title Exceptions or (v) such matters approved by the Bank in writing.
8
Section 2.3. Tax Representations. Warranties and Covenants of the Borrower.
Notwithstanding anything herein to the contrary, the Borrower, for the benefit of the Issuer and
the Bank, hereby covenants and represents that it has taken and caused to be taken and shall make
and take and cause to be made and taken all reasonable actions that may be required of it and of
the Issuer for the interest on the Bond to be and remain excluded from the gross income of the
Bank for federal income tax purposes, and that to the best of its knowledge it has not taken or
permitted to be taken on its behalf, and covenants that to the best of its ability and within its
control, it shall not make or take, or permit to be made or taken on its behalf, any action which,
if made or taken, would adversely affect such exclusion under the provisions of the Code.
The Borrower acknowledges that the continued exclusion of interest on the Bond from
gross income for federal income tax purposes depends, in part, upon compliance with the arbitrage
limitations imposed by Sections 103(b)(2) and 148 of the Code. The Borrower hereby
acknowledges sole responsibility as between the Issuer and the Borrower to take all reasonable
actions necessary to comply with these requirements. The Borrower hereby agrees and covenants
that it shall not permit at any time or times any of the proceeds of the Bond or other funds of the
Borrower to be intentionally used, directly or indirectly, to acquire or to replace funds which were
used directly or indirectly to acquire any higher yielding investments (as defined in Section 148
of the Code), the acquisition of which would cause the Bond to be arbitrage Bond for purposes of
Sections 103(b)(2) and 148 of the Code. The Borrower further agrees and covenants that it shall
do and perform all acts and things necessary in order to assure that the requirements of Sections
103(b)(2) and 148 of the Code are met.
Specifically, without intending to limit in any way the generality of the foregoing, the
Borrower covenants and agrees:
(1) to pay to the United States of America at the times required pursuant to
Section 148(f) of the Code, the excess of the amount earned on all non-purpose investments
(as dermed in Section 148(f)(6) of the Code) (other than investments attributed to an excess
described in this sentence) over the amount which would have been earned if such
non-purpose investments were invested at a rate equal to the yield on the Bond, plus any
income attributable to such excess (the "Rebate Amount");
(2) to maintain and retain all records pertaining to and to be responsible for
making or causing to be made all determinations and calculations of the Rebate Amount
and required payments of the Rebate Amount as shall be necessary to comply with the
Code; and
(3) to comply with all representations and restrictions contained in the
Certificate as to Arbitrage and Other Tax Matters and the Tax Certificate of Borrower
delivered in connection with the issuance of the Bond.
The Borrower understands that the foregoing covenants impose continuing obligations on
it to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the
Code so long as such requirements are applicable.
9
All representations and warranties of the Borrower set forth in the Certificate as to
Arbitrage and Other Tax Matters and the Tax Certificate of Borrower executed in connection with
the issuance of the Bond are and will remain true and correct and are incorporated herein by this
reference the same as if fully set forth herein.
Section 2.4. Additional Tax Covenants of the Borrower. For so long as the Bond remains
outstanding, the Borrower hereby covenants as follows:
(a) It will comply with, and timely make or cause to be made all filings required
by, all effective rules, rulings or regulations promulgated by the Department of the
Treasury or the Internal Revenue Service;
(b) It will continue to conduct its operations in a manner that will result in its
continuing to qualify as an organization described in Section 501(c)(3) of the Code
including but not limited to the timely filing of all returns, reports and requests for
determination with the Internal Revenue Service and the timely notification of the Internal
Revenue Service of all changes in its organization and purposes from the organization and
purposes previously disclosed to the Internal Revenue Service;
(c) It will not divert any substantial part of its income for a purpose or purposes
other than those for which it is organized and operated;
(d) It will not use, invest or direct the investment of the proceeds of the Bond
or any investment earnings thereon in a manner that will result in the Bond becoming a
"private activity bond" (other than qualified 501(c)(3) bonds) within the meaning of
Sections 141 and 145 of the Code;
(e) It will not use or permit to be used more than five percent (5%) of the
proceeds of the Bond (including any amounts used to pay costs associated with issuing such
Bond), including all investment income earned on such proceeds directly or indirectly, in
any trade or business carried on by any person who is not an organization described in
Section 501(c)(3) of the Code or a governmental unit as that term is used in Section 145
of the Code ("an Exempt Person"). For purposes of the preceding sentence, use of the
proceeds by an organization described in Section 501(c)(3) of the Code with respect to an
"unrelated trade or business," determined in accordance with Section 513(a) of the Code,
does not constitute a use by an Exempt Person;
(t) It will not use or permit the use of any portion of the proceeds of the Bond,
including all investment income earned on such proceeds, directly or indirectly, to make
or fmance loans to persons who are not a governmental unit or an organization described
in Section 501(c)(3) of the Code. For purposes of the preceding sentence, a loan to an
organization described in Section 501(c)(3) of the Code for use with respect to an
"unrelated trade or business" does not constitute a loan to such a unit or organization;
10
(g) It has not entered into, and will not enter into, any arrangement with any
person or organization (other than a state or local governmental unit or another 501(c)(3)
organization) which provides for such person or organization to manage, operate, or
provide services with respect to more than 5 % of the property fmanced or refmanced with
the proceeds of the Bonds (a "Service Contract"), unless the guidelines set forth in
Revenue Procedure 97-13 (or the guidelines set forth in Revenue Procedure 93-19, to the
extent applicable, or any new, revised or additional guidelines applicable to Service
Contracts) (the "Guidelines"), are satisfied, except to the extent it obtains a private letter
ruling from the Internal Revenue Service or an opinion of Bond Counsel which allows for
a variation from the Guidelines. Service Contracts that relate to the use or operation of the
Project by "service providers," as that term is used in the Guidelines (the "Service
Providers "), will satisfy the Guidelines, as in effect on the date hereof, if and only if the
requirements of each of the following Subsections is satisfied:
i) The compensation of the Service Provider under the contract must
be reasonable for the services rendered.
ii) The contract must not provide for any compensation for services,
based in whole or in part, on a share of net profits from the operation of the
Project. Generally, compensation is not based on a share of net profits if such
compensation is based on a "capitation fee" or a "per-unit fee." Under the
Guidelines, "capitation fee" means a fixed periodic amount for each person for
whom the Service Provider or a qualified user assumes the responsibility to provide
all needed services for a specified period (so long as the quantity and type of
services actually provided to covered persons varies substantially). Under the
Guidelines, a "per-unit fee" means a fee based on a unit of service provided (e.g.,
a stated dollar amount for each specified medical procedure performed or car
parked).
iii) The contract must provide for a compensation arrangement for the
Service Provider that satisfies any one of the following six paragraphs:
a) At least 95 percent of the compensation for services for each
annual period during the term of the Service Contract is based on a periodic
fixed fee, so long as the term of the contract does not exceed the lesser of
80 percent of the reasonably expected useful life of the bond-financed
property and 15 years, including renewal options.
b) At least 80 percent of the compensation for services for each
annual period during the term of the Service Contract is based on a periodic
fixed fee, so long as the term of the contract does not exceed the lesser of
80 percent of the reasonably expected useful life of the bond-financed
property and 10 years, including renewal options.
11
c) At least 50 percent of the compensation for services for each
annual period during the term of the Service Contract is based on a periodic
fixed fee, so long as the term of the contract does not exceed five years,
including renewal options.
d) All of the compensation for services is based on a "capitation
fee" or a combination of "capitation fee" and a periodic fixed fee, so long
as the term of the contract does not exceed five years, including renewal
options.
e) If the contract has a term, including renewal options, that is
not longer than three years, all of the Service Provider's compensation may
be based on "per-unit fee" or a combination of a "per-unit fee" and a
periodic fixed fee. For this compensation arrangement to satisfy the
Guidelines, the contract must be cancelable by the Borrower on reasonable
notice, without penalty or cause, at the end of the second year of the
contract term. In addition, the amount of the "per-unit fee" must be
specified in the service contract or otherwise specifically limited by the
Borrower or an independent third party.
f) If the contract has a term, including renewal options, that is
not longer than two years, all of the Service Provider's compensation may
be based on a percentage of fees charged or a combination of a per-unit fee
and a percentage of revenue or expense fee. For this compensation
arrangement to satisfy the Guidelines, the contract must be cancelable by
the Borrower on reasonable notice, without penalty or cause, at the end of
the first year of the contract term. In addition, the contract must (A)
require the Service Provider to provide services primarily to third parties;
or (B) involve a facility during an initial start-up period for which there
have been insufficient operations to establish a reasonable estimate of the
amount of the annual gross revenues and expenses (e.g., a service contract
for general management services for the first year of operations). During
the start-up period only, the Service Provider's compensation may be based
on a percentage of either gross revenues, adjusted revenues, or expenses of
the Project.
iv) The Borrower must be able to cancel a Service Contract described in
iii)c) or iii)d) above upon reasonable notice, without penalty or cause, at the end
of the third year of the contract term, and a Service Contract described in iii)e) or
iii)f) above at the earlier times provided therein (if applicable). Under the
guidelines, contract termination penalties include (1) a limitation on the Borrower's
right to compete with the Service Provider; (2) a requirement that the Borrower
purchase equipment, goods, or services from the Service Provider; and (3) a
requirement that the Borrower pay liquidated damages for cancellation of the
Service Contract. However, the Guidelines generally do not treat the following as
12
contract termination penalties: (1) a requirement, effective on cancellation of the
contract, that the Borrower reimburse the Service Provider for ordinary and
necessary expenses; and (2) a restriction on the Borrower against hiring key
personnel of the Service Provider.
v) The Service Provider does not have a role or relationship with the
Borrower (or the Issuer) that, in effect, substantially limits the ability of the
Borrower to exercise its rights, including cancellation of rights, under the Service
Contract. Accordingly, not more than 20 percent of the voting power of the
governing body of the Borrower (or the Issuer) in the aggregate may be vested in
the Service Provider and its directors, officers, shareholders, and employees.
Furthermore, the group of persons belonging to both the governing board of the
Borrower (or the Issuer) and the Service Provider may not include the chief
executive officers of the Borrower (or the Issuer) and the Service Provider, or their
respective governing bodies. Finally, neither the Borrower nor the Issuer may be
members of the same "controlled group" (within the meaning of Treasury
Regulations ~ 1. 150-1 (f)) or "related persons" (within the meaning of Code Section
144(a)(3)) as the Service Provider.
(h) It will not cause the Bonds to be treated as "federally guaranteed"
obligations for purposes of Section 149 of the Code, as may be modified in any applicable
rules, rulings, policies, procedures, regulations or other official statements promulgated
or proposed by the Department of the Treasury or the Internal Revenue Service with
respect to "federally guaranteed" obligations described in Section 149 of the Code. For
purposes of this paragraph, the Bonds shall be treated as "federally guaranteed" if (i) all
or any portion of the principal or interest is or will be guaranteed directly or indirectly by
the United States of America or any agency or instrumentality thereof, or (ii) 5 % or more
of the proceeds of the Bonds will be (A) used in making loans the payment of principal or
interest with respect to which is to be guaranteed in whole or in part by the United States
of America or any agency or instrumentality thereof, or (B) invested directly or indirectly
in federally insured deposits or accounts, and (iii) such guarantee is not described in
Section 149(b)(3) of the Code;
(i) The net proceeds of the Bonds and any investment earnings thereon shall
be applied solely for the purposes set forth in this Agreement and in the Bond Purchase
Agreement and no amount of net proceeds of the Bonds in excess of two percent (2 %) of
the proceeds of the Bonds will be expended to pay the costs of issuing such issue of the
Bonds, as required by Section 147(g) of the Code.
(j) It will not use or invest the proceeds of the Bonds in a manner that will
violate the provisions of Section 149(d)(3) or (4) of the Code;
(k) The average maturity of the Bonds will not exceed one hundred twenty
percent (120%) of the reasonably expected economic life of any property the cost of which
was financed or refinanced with the net proceeds of the Bonds, taking into account the
13
respective cost of each item comprising such property which was financed with the net
proceeds of the Bonds. For purposes of the preceding sentence, the reasonably expected
economic life of each item of property shall be determined as of the later of (i) the date on
which the Bonds are issued or (ii) the date(s) on which such item of property is placed in
service (or expected to be placed in service). In addition, land shall not be taken into
account in determining the reasonably expected economic life of such property, except
that, in the event twenty-five percent (25 %) or more of the proceeds of the Bonds have
been expended for land, such land shall be treated as having an economic life of thirty (30)
years and shall be taken into account for purposes of determining the reasonably expected
economic life of such property;
(1) No amount of the proceeds of the Bonds will be used, directly or indirectly,
to provide any airplane, sky-box or other private luxury box, facility primarily used for
gambling, store the principal business of which is the sale of alcoholic beverages for
consumption off premises or health club facility (except a health club facility related to the
Section 501(c)(3) exempt purposes of the Borrower);
(m) It will comply with the information reporting requirements of Section
149(e)(2) of the Code;
(n) All of the property which is to be provided with the net proceeds of the
Bonds shall be owned by an Exempt Person, as required by Section 145(a) of the Code;
(0) No other governmental obligations shall be sold within fifteen (15) days of
the Bonds pursuant to the same plan of fmancing as the Bonds that are reasonably expected
to be paid from the same source of funds as the Bonds;
(P) The information to be furnished by the Borrower and used by the Issuer in
preparing the certification pursuant to Section 148 of the Code and information statement
(Form 8038) pursuant to Section 149(e) of the Code is accurate and complete as of the date
of the issuance of the Bonds; and
(q) It will require, in connection with any lease or grant by the Borrower of the
use of any portion of the property financed by the Bonds that the lessee, sublessee,
manager or other user of any portion of the property financed by the Bonds shall not
violate the covenants set forth in this section and use that portion of the property financed
by the Bonds in any manner which would violate the covenants set forth in this section;
The terms "debt service," "gross proceeds," "net proceeds," "proceeds," and "yield" have
the meanings assigned to them for purposes of Section 148 of the Code.
(End of Article II)
14
ARTICLE III
ACQUISITION, CONSTRUCTION AND
IMPROVEMENT OF THE PROJECT;
ISSUANCE OF BOND
Section 3.1. A~reement To Acquire. Construct and Equip the Project.
(a) The Borrower shall do all things legally and reasonably within its power that
are necessary to cause the acquisition, renovation and restoration of the Project to occur
and to be completed on or before the Completion Date.
(b) In the event the Borrower shall default in the performance of its obligations
pursuant to Section 3.1(a), the Borrower agrees that, to the extent Borrower may legally
delegate such power and authority, the Bank shall have the full power and authority to
perform and exercise, but shall not be required to so perform and exercise, all such rights
and obligations of the Borrower.
Section 3.2. Issuance of the Bond: Loan of Proceeds. To provide funds to make the
Loan for the purposes of refmancing the Refmanced Debt and assisting in the payment of Project
Costs, the Issuer will issue, sell and deliver the Bond to the Bank in exchange for the Advances
and hereby agrees to loan the entire proceeds therefrom upon the terms and conditions herein
provided to the Borrower. Pursuant to the Bond Purchase Agreement the Bank may from time to
time make Advances to the Issuer, which Advances the Issuer will immediately loan to the
Borrower hereunder and which shall be deemed loaned by the Issuer to the Borrower immediately
upon funding of such Advances by the Bank.
Section 3.3. Insufficiency of Funds. The Issuer does not make any warranty, either
express or implied, that the proceeds of the Bond will be sufficient to pay all of the costs of
construction of the Project. The Borrower agrees that if the Borrower shall pay any portion of the
cost of construction of the Project from moneys other than proceeds of the Bond the Borrower
shall not be entitled to any reimbursement therefor from the Issuer or the Bank, nor shall the
Borrower be entitled to any diminution of the amounts payable under Sections 4.1 or 4.2 hereof.
(End of Article III)
15
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PAYMENTS
Section 4.1. Loan Repayment: Delivery of Note. Upon the terms and conditions of this
Agreement and the Bond Purchase Agreement, the Issuer will loan (the "Loan") the Borrower the
proceeds from the sale of the Bond, including all amounts Advanced by the Bank to the Issuer
pursuant to the Bond Purchase Agreement. The Issuer authorizes the Borrower to request
Advances under the Bond Purchase Agreement, and the Borrower and the Issuer agree that all
amounts Advanced by the Bank to the Issuer pursuant to the Bond Purchase Agreement shall be
simultaneously deemed loaned by the Issuer to the Borrower, so that the amount of the Loan shall
equal the aggregate amount Advanced by the Bank. In consideration of and in repayment of the
Loan, the Borrower shall make, as Loan Payments, payments sufficient in time and amount to pay
when due all Bond Service Charges, all as more particularly provided in the Note. All such Loan
Payments shall be paid to the Bank as assignee of the Issuer in accordance with the terms of the
Note.
Upon payment in full of the -Bond Service Charges on the Bond, whether at maturity or by
prepayment or otherwise, and other amounts due hereunder and under the Bond Purchase
Agreement, the Note shall be deemed fully paid, the obligations of the Borrower thereunder shall
be terminated, and the Note shall be surrendered by the Bank to the Borrower, and shall be
canceled by the Borrower.
Section 4.2. Additional Payments. The Borrower shall pay to the Issuer, as Additional
Payments hereunder, the Issuer's Fees and Expenses and shall reimburse or pay the Issuer for any
and all reasonable costs, expenses and liabilities paid or incurred by the Issuer in satisfaction of
any obligation of the Borrower hereunder not performed by the Borrower in accordance with the
terms hereof. The Borrower shall also prepay or reimburse the Issuer and the Bank for any and
all reasonable expenses paid or to be paid by the Issuer or the Bank and requested by the
Borrower, or required by this Agreement or the Bond Purchase Agreement or incurred in
enforcing the provisions of the Bond Documents, or incurred in defending any action or
proceedings with respect to the Project or the Bond Documents, or arising out of or based upon
any other document relating to the issuance of the Bond, which are not otherwise required to be
paid by the Borrower hereunder. The Borrower also agrees to pay, whether to the Issuer or the
Bank or otherwise, any tax or other governmental imposition imposed upon or with respect to this
Agreement or the Note, including, but not limited to, the excise tax on documents imposed by
Chapter 201, Florida Statutes and the intangible personal property tax imposed by Chapter 199,
Florida Statutes.
Section 4.3. Place of Payments. The Borrower shall make all Loan Payments directly
to the Bank at its office designated in writing, and all Additional Payments due to the Issuer or the
Bank shall be made directly to the Issuer or the Bank, as the case may be, at their Notice
Addresses.
16
Section 4.4. Obliiations Unconditional. The obligations of the Borrower to make Loan
Payments and Additional Payments shall be absolute and unconditional, and the Borrower shall
make such payments without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off, recoupment or
counterclaim which the Borrower may have or assert against the Issuer, the Bank or any other
Person, unless ordered by a court or arbitrator of competent jurisdiction.
Section 4.5. Assiinment of Certain Bond Documents. To secure the payment of Bond
Service Charges, the Issuer shall assign to the Bank, by the Assignment, its rights under and
interest in this Agreement (except for the Unassigned Issuer's Rights), the Mortgage, and the
Note. The Borrower hereby agrees and consents to that assignment, and the Borrower and the
Issuer agree that except for the Unassigned Issuer's Rights, the Bank shall have the sole and
exclusive right to receive notices, give consents, direct remedial actions and exercise all other
discretionary rights and powers of the Issuer hereunder.
(End of Article IV)
17
ARTICLE. V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1. Borrower to Maintain its Existence. The Borrower shall at all times take
all legal steps necessary to maintain its existence as a corporation not-for-profit under the laws of
the State and as an organization described in Section 501(c)(3) of the Code.
Section 5.2. Indemnification. The Borrower releases the Issuer and the Bank and their
respective officers, directors, employees, and agents (herein collectively called the "Indemnified
Parties ") from, and agrees that the Indemnified Parties shall not be liable for, and the Borrower
indemnifies the Indemnified Parties against, all liabilities, claims, costs and expenses imposed
upon or asserted against any of them on account of: (a) any loss or damage to property or injury
to or death of or loss by any Person that may be occasioned by any cause whatsoever pertaining
to the construction, maintenance, operation and use of the Land, Improvements or Project unless
arising through the gross negligence or misconduct of the party seeking indemnification; (b) any
act or omission or breach or default on the part of the Borrower in the performance of any
covenant or agreement of the Borrower under any Bond Document or any related document, or
arising from any act or failure to act by the Borrower, or any of its agents, contractors, servants,
employees or licensees; (c) the authorization, issuance and sale of the Bond (except for federal or
state securities law violations caused by a party seeking indemnification), and the provision by or
on behalf of the Borrower of any information furnished by the Borrower in connection therewith
concerning the Land, Improvements or Project or the Borrower (including, without limitation, any
information furnished by the Borrower for inclusion in any certifications made by the Issuer under,
or as a basis for preparation of, any information statements furnished by the Issuer and any
information or certification obtained from the Borrower) to assure exclusion of the interest on the
Bond from gross income of the Bank for federal income tax purposes; (d) the Borrower's failure
to comply with any requirements of this Agreement pertaining to compliance with the Code to
assure said exclusion of the interest; and (e) any claim, action or proceeding with respect to the
matters set forth in (a), (b), (c) or (d) above brought thereon.
The Borrower indemnifies the Issuer, and its officers, directors, employees and agents for,
and to hold the Issuer harmless against, all liabilities, claims, costs and expenses incurred without
gross negligence or bad faith on the part of the Issuer, or its officers, directors, employees or
agents, on account of any action taken or omitted to be taken by the Issuer, respectively, in
accordance with the terms of any Bond Document or any action taken at the request of or with the
consent of the Borrower, including the costs and expenses of the Issuer in defending itself against
any such claim, action or proceedings brought in connection with the exercise or performance of
any of its powers or duties under any Bond Document.
In case any action or proceeding is brought against any Indemnified Party in respect of
which indemnity may be sought hereunder, the party seeking indemnity promptly shall give notice
of that action or proceeding to the Borrower, and the Borrower upon receipt of that notice shall
have the obligation and the right to assume the defense of the action or proceeding; provided, that
failure of a party to give that notice shall not relieve the Borrower from any of its obligations
18
under this Section unless, and only to the extent that, that failure prejudices the defense of the
action or proceeding by the Borrower. At the expense of the Borrower, an Indemnified Party may
employ separate counsel and participate in the defense. The Borrower shall not be liable for any
settlement made without its consent.
The indemnification set forth above is intended to and shall be enforceable by each of the
Indemnified Parties to the full extent permitted by law, and shall survive the payment in full of the
Note and the Bond by four years.
Section 5.3. Plans. The Borrower assumes full responsibility for the compliance of the
Plans and the Mortgaged Property with all laws, governmental requirements and sound building
and engineering practices. No construction shall be undertaken on the Property except as shown
in the Plans. No plans or specifications, or any changes thereto, shall be included as part of the
Plans until consented to by the Bank, and approved by Construction Consultant, all applicable
Governmental Authorities, and all parties required under the Bond Documents, which consent
shall not be unreasonably withheld.
Section 5.4. Contracts. Without the Bank's prior written approval, which shall not be
unreasonably withheld, as to parties, terms, and all other matters, the Borrower shall not (a) enter
into any contract for the performance of any work or the supplying of any labor, materials, or
services for the design or construction of the Improvements, (b) enter into any management,
leasing, maintenance or other contract pertaining to the Mortgaged Property not described in
clause (a) preceding that is not unconditionally terminable by the Borrower or any successor owner
without penalty or payment on not more than thirty (30) days notice to the other party thereunder,
or (c) modify, amend, or terminate any such contracts. All such contracts shall provide that all
liens of the applicable contractor, architect, supplier, surveyor or other party and any right to
remove removable Improvements are subordinate to the Issuer's and the Bank's rights The
Borrower shall not default under any contract the Borrower shall not permit any contract to
terminate by reason of any failure of the Borrower to perform thereunder, and the Borrower shall
promptly notify the Bank of any material default thereunder. The Borrower will deliver to the
Bank, upon request of the Bank, the names of all persons or entities with whom each contractor
has contracted or intends to contract for the construction of the Improvements or for the furnishing
of labor or materials therefor.
Section 5.5. Construction of the Improvements. The Borrower has commenced
construction of the Improvements and shall prosecute the construction of the Improvements with
diligence and continuity, in a good and workmanlike manner, and in accordance with sound
building and engineering practices, all applicable laws and governmental requirements, the Bond
Documents and the Plans. The Borrower shall not permit cessation of work for a period in excess
of ten (10) days (whether or not consecutive), except for Excusable Delays. The Borrower shall
complete construction of the Improvements, and shall obtain a permanent unconditional certificate
of occupancy and all other permits, licenses, and approvals for the occupancy, use and operation
of the Improvements from all applicable governmental authorities on or before the Completion
Date, free and clear of all liens except the Bond Documents. The Borrower shall correct promptly
(a) any material defect in the Improvements, (b) any material departure from the Plans, law, or
19
governmental requirements, or (c) any encroachment by any Improvements or structure on any
building setback line, easement, property line or restricted area.
Section 5.6. Chanies. Without the Bank's prior written consent, which consent shall not
be unreasonably withheld the Borrower shall not change or modify the Plans, agree to any change
order, or allow any extras to any contractor or any subcontractor, except that the Borrower may
make the Permitted Changes if: (a) the Borrower notifies the Bank in writing of the change or
extra with appropriate supporting documentation and information; (b) the Borrower obtains the
approval of the applicable contractor, the Borrower's architect, and all sureties; (c) the structural
integrity, quality and standard of workmanship of the Improvements is not impaired; (d) no
substantial change in architectural appearance is affected; (e) no default in any obligation to any
person or violation of any law or governmental requirement would result from such change or
extra; (t) the Borrower complies with Section 4.8 of the Bond Purchase Agreement to cover any
excess cost resulting from the change or extra; (g) completion of the Improvements by the
Completion Date will not be affected; and (h) all requirements of Section 713.3471(2), Florida
Statutes, have been fully satisfied. The Bank shall not be obligated to review a proposed change
unless it has received all documents necessary to review such change, such as the change order,
cost estimates, plans and specifications, and evidence that all approvals by all applicable parties
have been obtained.
Section 5.7. Storaie of Materials. The Borrower shall cause all materials supplied for,
or intended to be utilized in the construction of the Improvements, but not yet affixed to or
incorporated into the Improvements on the Land, to be stored with adequate safeguards as required
by the Issuer to prevent loss, theft, damage or commingling with other materials or projects.
Section 5.8. Inspection. The Issuer or the Bank may enter upon the Mortgaged Property
to inspect the Mortgaged Property and any materials at any reasonable time and with reasonable
notice. The Borrower will furnish to the Issuer or the Bank at any time for inspection and copying
all Plans, shop drawings, specifications, books and records, and other documents and information
required by the Issuer or the Bank.
Section 5.9. Notice to the Issuer. The Borrower shall promptly notify the Issuer and the
Bank in writing of any of the following events, specifying in each case the action the Borrower
has taken or will take with respect thereto: (a) any violation of any law or governmental
requirement; (b) any litigation, arbitration or governmental investigation or proceeding instituted
or threatened against the Borrower or the Mortgaged Property or any material development
therein; (c) any actual or threatened condemnation of any portion of the Mortgaged Property, any
negotiations with respect to any such taking, or any loss of or substantial damage to the Mortgaged
Property; (d) any labor controversy pending or threatened against the Borrower or any contractor
or any material development in any labor controversy; (e) any notice received by the Borrower
with respect to the cancellation, alteration or non-renewal of any insurance coverage maintained
with respect to the Mortgaged Property; or (t) any failure by the Borrower or any contractor to
perform any material obligation under any construction contract, any event or condition which
would permit termination of a construction contract or suspension of work thereunder, or any
notice given by the Borrower or any contractor with respect to any of the foregoing.
20
Section 5.10. Assiinment of Contracts and Plans. As additional security for the payment
of the Loan, the Borrower shall transfer and assign to the Issuer all of the Borrower's rights and
interest, but not its liability, in, under, and to all construction, architectural and design contracts,
and the Plans, and agrees that all of the same are covered by the security agreement provisions of
the Mortgage. The Borrower understands and agrees that the Issuer shall further assign its rights
in the foregoing to the Bank. The Borrower represents and warrants that the copy of any contract
furnished or to be furnished to the Bank is and shall be a true and complete copy thereof, that the
copies of the Plans delivered to the Bank are and shall be true and complete copies of the Plans,
that there have been no modifications thereof which are not fully set forth in the copies delivered,
and that the Borrower's interest therein is not subject to any claim, setoff, or encumbrance.
Neither the assignments referred to herein nor any action by the Issuer or the Bank shall constitute
an assumption by the Issuer or the Bank of any obligation under any contract or with respect to
the Plans, and the Borrower shall continue to be liable for all obligations of the Borrower with
respect thereto, the Borrower hereby agreeing to perform all of its obligations under any contract.
The Issuer shall have the right at any time (but shall have no obligation) to take in its name or in
the name of the Borrower such action the Issuer may determine necessary to cure any default
under any contract or with respect to the Plans or to protect the rights of the Borrower or the
Issuer with respect thereto after reasonable prior notice to the Borrower and failure of the
Borrower to cure the same in a reasonable period of time. The Issuer shall incur no liability if any
action so taken by it or on its behalf shall prove to be inadequate or invalid. The Borrower
indemnifies and holds the Issuer and the Bank harmless against and from any loss, cost, liability
or expense (including, but not limited to, attorneys' fees and expenses) incurred in connection with
the Borrower's failure to perform such contracts or any action taken by the Issuer or Bank. The
Bank or Issuer may use the Plans for any purpose relating to the Improvements. The Borrower
irrevocably constitutes and appoints the Bank as the Borrower's attorney-in-fact, which power of
attorney shall be irrevocable and coupled with an interest, in the Borrower's name or in the Bank's
name to enforce all rights of the Borrower under any contract or with respect to the Plans provided
that the Bank shall not exercise such power except upon the occurrence of and during the
continuation of a Default.
Section 5.11. Financial Statements. The Borrower shall deliver to the Bank the Financial
Statements and other statements and information at the times and for the periods described herein,
as otherwise required by any other Bond Documents and from time to time such additional
financial statements, reports and information the Issuer requests.
Borrower shall provide or cause to be provided to the Bank the following:
(a) Financial Statements of the Borrower for each Fiscal Year, as soon as
reasonably practicable and in any event within 90 days after the close of each Fiscal Year; and
(b) Prior to or within 90 days after the beginning of each Fiscal Year of Borrower,
a capital and operating budget for the Mortgaged Property; and
21
(c) Copies of filed federal and state information and income tax returns of the
Borrower for each taxable year, within twenty (20) days after fuing but in any event not later than
the date such returns are legally required to have been filed.
Items provided under this paragraph shall be in form and detail reasonably satisfactory
to the Bank. All fmancial statements shall be in form an detail reasonably satisfactory to the Bank
and shall contain or be attached to the signed, by a representative of the Borrower satisfactory to
the Bank, and dated written certification of the reporting party in form specified by the Bank to
certify that the fmancial statements are furnished to the Bank in connection with the extension of
credit by the Bank and constitute a true and correct statement of the reporting parties. financial
position. All fiscal year end financial statements of the Borrower shall be audited and certified,
without any qualification or exception not acceptable to the Bank, by independent certified public
accountants acceptable to the Bank, and shall contain all reports and disclosures required by
generally accepted accounting principles for a fair presentation.
Section 5.12. Construction Consultant. The Borrower shall cooperate with Construction
Consultant and will furnish Construction Consultant whatever Construction Consultant considers
necessary or useful to perform its duties. The duties of Construction Consultant run solely to the
Bank, and Construction Consultant shall have no obligations or responsibilities whatsoever to the
Borrower, the Architect, any engineer engaged by the Borrower, Contractor or to any of their
subcontractors, agents or employees. The Construction Consultant may, among other duties,
perform construction cost analyses, review the Plans, all proposed changes in them, observe work
in place, and review Draw Requests. Unless prohibited by applicable law, the fees, costs, and
expenses of Construction Consultant shall be paid by the Borrower.
Section 5.13. Reports and Vouchers. The Borrower shall (a) promptly deliver to the Bank
copies of all reports, studies, inspections and tests made on the Land, the Improvements or the
materials to be incorporated into the Improvements; (b) make additional tests the Bank reasonably
requires; and (c) deliver to the Bank, on demand, any contracts, bills of sale, statements, receipted
vouchers or agreements under which the Borrower claims title to any materials, fIXtures or articles
incorporated or to be incorporated in the Improvements or otherwise subject to a lien or security
interest in favor of the Bank. The Borrower shall immediately notify the Bank of any such report,
study, inspection or test that indicates any adverse condition in the Land or the Improvements.
Section 5.14. Payment ofWithholdin~ Taxes. The Borrower shall not use, or knowingly
permit any contractor or subcontractor to use, any portion of the proceeds of any Advance to pay
the wages of employees unless a portion of the proceeds or other funds are also used to make
timely payment to or deposit with the United States all amounts of tax required to be deducted and
withheld with respect to such wages under the Internal Revenue Code, and to make timely
payment to or deposit with any local and/or state governmental authority or agency having
jurisdiction all amounts of tax required to be deducted and withheld with respect to such wages
under any applicable local and/or state laws.
Section 5.15. Representations and Warranties. To induce the Issuer to issue the Bond and
the Bank to make Advances, the Borrower hereby represents and warrants to the Issuer and the
22
Bank that (a) prior to the recordation of the Mortgage, no work of any kind (including the
destruction or removal of any existing improvements, site work, clearing, grading, grubbing,
draining or fencing of the Land) has been or will be commenced or performed on the Property,
no equipment or material has been or will be delivered to or upon the Property for any purpose
whatsoever, and no contract (or memorandum or affidavit thereof) for the supplying of labor,
materials, or services for the design or construction of the Improvements, or the surveying of the
Property or Improvements, nor any affidavit or notice of commencement of construction of the
Improvements, has been or will be executed or recorded, which in any case could cause a
mechanic's or materialman's lien or similar lien to have an inception so as to achieve priority over
the Mortgage or the rights of the Issuer thereunder; (b) to the extent required by applicable law,
the Borrower has filed all necessary tax returns and reports and have paid all taxes and
governmental charges thereby shown to be owing; (c) the Plans are satisfactory to the Borrower,
have been approved by all applicable governmental authorities, have been accepted by each
contractor, are complete in all material respects, contain all detail necessary and are adequate for
the construction of the Improvements, and comply with the Bond Documents, all applicable laws,
restrictive covenants, and governmental requirements, rules, and regulations; (d) no parcel of land
included in the Land is part of a larger tract of land owned by the Borrower and included under
any unity of title or similar covenant with other lands not encumbered by the Mortgage, and the
Borrower has obtained or will obtain a separate tax lot or lots with a separate tax assessment or
assessments for the Land and Improvements, independent of any other lands or improvements; (e)
the Land and Improvements comply with all laws and governmental requirements, including all
subdivision and platting requirements, without reliance on any adjoining or neighboring property;
(f) the Plans do and the Improvements when constructed will comply with all legal requirements
regarding access and facilities for handicapped or disabled persons; (g) the Borrower has not
directly or indirectly conveyed, assigned or otherwise disposed of or transferred (or agreed to do
so) any development rights, air rights or other similar rights, privileges or attributes with respect
to the Mortgaged Property, including those arising under any zoning or land use ordinance or
other law or governmental requirement; (h) the construction schedule for the Project is realistic
and the Completion Date is a reasonable estimate of the time required to complete the Project; (i)
the fmancial statements delivered to the Bank are true and correct, and there has been no material
change of the Borrower's financial condition from the financial condition of the Borrower
indicated in such Financial Statements.
Section 5.16. Post -Closini Environmental Assessments. In addition to the environmental
report required to be furnished to the Bank as a condition precedent to the frrst Advance, the Issuer
or the Bank may, at their sole option, but only upon reasonable suspicion that an adverse
environmental condition exists with respect to the Mortgaged Property, and at the Borrower's
expense, require an environmental assessment or updated assessment of the Mortgaged Property
by an engineering firm, and of a scope and in form and content satisfactory to the Issuer or the
Bank, complying with the Issuer's or Bank's established guidelines, showing that there is no
evidence of any hazardous or toxic substances which have been generated, treated, stored, released
or disposed of in the Mortgaged Property, and such additional evidence as may be required by the
Issuer. The Borrower agrees at its sole expense to provide such environmental assessments when
requested by the Issuer or the Bank. If any environmental assessment indicates the past or present
use, handling, storage, transportation or disposal of hazardous or toxic materials which is
23
unremedied by Borrower, such shall constitute a Default by the Borrower under the Bond
Documents.
Section 5.17. Interest Rate Protection Aireements. The Borrower shall duly and
punctually perform all covenants, terms, and agreements expressed as binding upon the Borrower
under any Interest Rate Protection Agreements. The Borrower acknowledges that the Borrower's
obligations under any Interest Rate Protection Agreements are obligations secured by the
Mortgage. Further, the Borrower acknowledges and agrees that the occurrence of any event of
default or defaults under any Interest Rate Protection Agreement shall be a default under this
Agreement, and vice versa.
Section 5.18. Miscellaneous Covenants.
(a) The Borrower will maintain for each Fiscal Year a Debt Service
Coverage Ratio of not less than 1.20 to 1.0. "Debt Service Coverage Ratio" means the ratio of
(i) "net operating income" of the Mortgaged Property to (ii) the aggregate principal and interest
payable on the Note (after giving effect to any Interest Rate Protection Agreement). "Net
operating income" means all actual income from the Mortgaged Property minus ordinary operating
expenses.
(b) The Borrower may not create or permit any mortgage or lien on any
of its assets other than to secure the Loan other than as consented to by the Bank.
(c) There shall be no material change in the ownership/management of
the Borrower that effectively changes the control of the Borrower and the Borrower may not
merge or consolidate with any other entity.
(d) The Borrower shall promptly inform the Issuer of any actual or
potential contingent liabilities in excess of $10,000.
(e) The Borrower shall, at all times, maintain a ratio of Senior Liabilities
to Effective Tangible Net Worth of not more than 1.00 to 1.00. "Senior Liabilities" shall mean
the sum of total liabilities, including capitalized leases and all reserves for deferred taxes and other
deferred sums appearing on the liabilities side of a balance sheet in accordance with generally
accepted accounting principles applied on a consistent basis, excluding debt fully subordinated to
the Bank on terms and conditions acceptable to the Bank. "Effective Tangible Net Worth" shall
mean total assets minus total liabilities. For purposes of this computation, the aggregate amount
of any intangible assets of Borrower, including without limitation, goodwill, franchises, licenses,
patents, trademarks, trade names, copyrights, service marks and brand names shall be subtracted
from total assets. "Total liabilities" shall mean all liabilities of Borrower, excluding debt fully
subordinated to the Bank on terms and conditions acceptable to the Bank, and including capitalized
leases and reserves for deferred taxes and other deferred sums appearing on the liabilities side of
a balance sheet, in accordance with generally accepted accounting principles applied on a
consistent basis.
24
(t) The Borrower shall not retire any long-term debt (other than the
Refinanced Debt or the Note) on a date in advance of its legal obligation to do so.
(g) The Borrower will allow the Issuer or the Bank to inspect all records
relating to the Loan, the Mortgaged Property ( as defined in the Mortgage) or the Project upon
reasonable notice to the Borrower.
(h) The Borrower shall not change its basic business.
(i) The Borrower may not dispose of any assets other than in the ordinary
course of business.
(j) The Borrower shall comply with all applicable federal, state and local
laws and regulatory requirements.
(k) The Borrower shall at all times maintain an account established with the
Bank, and which shall be pledged to secure the repayment of the loan, funded in an amount least
equal to $65,000.00.
Section 5.19. Insurance Policies. The Borrower shall maintain the insurance required by
the Mortgage in full force and effect at all times throughout the term of the Loan.
Section 5.20. Bank's Counsel's Fees: The Borrower shall pay the Bank's counsel's legal
fees in connection with the issuance of the Bond, which fees shall be in a fixed amount equal to
$17,500. In addition to the fixed fee, the Bank counsel shall charge and the Borrower shall pay
any reasonable and customary out-of-pocket expenses incurred by the fIrm in connection with the
Bond closing. All fees and costs shall be due and payable by Borrower on the date of the Bond
closing.
Section 5.21. Subordinate Financin~ and Transfer: There shall be no subordinate or other
financing of the personal or real property securing the Loan, and no sale or transfer of ownership
of the Mortgaged Property unless the Bank, in its sole and absolute discretion, has given its prior
written approval.
Section 5.22. Interest Rate Protection Aireement: Simultaneous with the issuance of the
Bond and the making of the initial Advance under the Bond Purchase' Agreement, the Borrower
shall enter into an Interest Rate Protection Agreement (the "First Swap") with the Bank, which
shall be in the form of the ISDA Master Agreement, Schedule and Confirmation, whereby the
Borrower shall be the fIXed rate payor and the Bank shall be the floating rate payor, which Interest
Rate Protection Agreement shall have a notional amount equal to the amount of the initial
Advance, shall be scheduled to terminate on June 15,2011, and shall have such other terms and
provisions as shall be acceptable to the Bank. On or before the date of issuance of the Bond, the
Bank and the Borrower shall enter into another Interest Rate Protection Agreement, having the
form of the ISDA Master Agreement, Schedule and Confirmation, whereby the Borrower is the
fixed rate payor and the Bank is the floating rate payor, having a notional amount equal to the
25
difference between the principal amount of the Bond to be outstanding on June 15, 2001 (not to
exceed $775,000) and the notional amount of the First Swap, also terminating on June 15,2011,
and having such other terms and conditions as are acceptable to the Bank.
(End of Article V)
26
ARTICLE VI
PREPAYMENT OF NOTE
Section 6.1. Optional Prepayment. The Borrower may prepay the Loan in whole or in
part in accordance with the applicable provisions of the Note, provided that at no time may the
outstanding principal amount of the Loan be less than the aggregate notional amount of the Interest
Rate Protection Agreement(s) referred to in Section 5.22.
Section 6.2. Mandatory Prepayment: Acceleration of Note. The Note shall be subject
to mandatory prepayment to the same extent and on the same dates that the Bond is subject to
mandatory prepayment. The Note shall be due and payable in the event of any acceleration of the
Bond to the same extent and on the same date that the Bond is declared to become due and payable
by reason of such acceleration.
(End of Article VI)
27
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7 .1. Default. The occurrence of anyone of the following shall be a default under
this Bond Purchase Agreement ("Default"):
(a) any of the Indebtedness is not paid when due, whether the due date is the
scheduled due date or arises by acceleration or otherwise;
(b) any material covenant, agreement or condition in any Bond Document (other
than covenants to pay any of the Indebtedness) is not fully and timely performed, observed or kept
and such violation is non-curable, or if curable continues for a period of thirty (30) days after
written notice thereof from the Bank to the Borrower, provided, however, that if such violation
may not reasonably be cured within such thirty day period, a Default shall not be deemed to have
occurred so long as the Borrower shall be diligently and continuously endeavoring to cure the
same;
(c) the.cessation of the construction of the Improvements continues for more than
ten (10) days (whether or not consecutive) except for Excusable Delays;
(d) the construction of the Improvements, or any materials for which an Advance
has been requested, fails to comply with the Plans, the Bond Documents, or any laws or
governmental requirements, which failure is not cured within fifteen (15) days after written notice
thereof to the Borrower;
(e) the Borrower fails to satisfy any condition precedent to the obligation of the
Bank to make an Advance;
(0 construction of the Improvements is abandoned, the Bank determines that
construction of the Improvements in accordance with the Bond Documents will not be completed
on or before the Completion Date, except for reasonable or Excusable Delays and delays caused
by change orders approved by the Bank, or the Borrower fails to complete construction of the
Improvements (and obtain all applicable permits, licenses, and approvals) in accordance with the
Bond Documents on or before the Completion Date except for reasonable or Excusable Delays
and delays caused by change orders approved by the Bank;
(g) any required permit, license, certificate or approval with respect to the
Mortgaged Property lapses or ceases to be in full force and effect and is not reinstated within a
reasonable period of time;
(h) any Borrower's Deposit is not made with the Bank: within seven (7) days after
the Bank's request therefor in accordance with Section 4.8 of the Bond Purchase Agreement;
28
(i) construction is enjoined or the Borrower, the Issuer or the Bank is enjoined or
prohibited from performing the Bond Documents;
G) the Borrower leases, as lessor, part or all of the Mortgaged Property in a
manner which does not comply with the Bond Documents;
(k) the Borrower's material default in the performance of its obligations as lessor
under any lease of all or any portion of the Project which default could result, in the Bank's sole
judgment, in the termination of said lease;
(1) any federal, state or local tax lien or any claim of lien for labor or materials or
any other lien or encumbrance of any nature whatsoever is recorded against the Borrower or the
Mortgaged Property and is not removed by payment or transferred to substitute security in the
manner provided by law, within ten (10) days after it is recorded in accordance with applicable
law;
(m) the Borrower shall cease to exist or to be qualified to do or transact business
in the State, or shall be dissolved or shall be a party to a merger or consolidation, or shall sell all
or substantially all of its assets;
(n) any sale, conveyance, transfer, assignment, or other disposition of all or any
part of the Mortgaged Property or any ownership interest in the Borrower except as otherwise
permitted hereby;
( 0) any statement or representation of the Borrower contained in any financial
statements or other materials furnished to the Bank are discovered to have been false or incorrect
or incomplete;
(p) the Borrower shall default under any obligation imposed by any indemnity
whether contained within any of the Bond Documents or otherwise;
(q) a default or event of default occurs under any Bond Document other than this
Agreement;
(r) the Borrower shall default under any obligation under any other indebtedness
(now or hereafter existing), of the Borrower to the Bank.
Section 7.2. Remedies on Default. Whenever an Event of Default shall have happened
and be continuing, anyone or more of the following remedial steps may be taken:
(a) If acceleration of the principal amount of the Bond has been declared
pursuant to the Resolution, the Note shall be immediately due and payable in full;
(b) The Issuer and the Bank may have access to, inspect, examine and make
copies of the books, records, accounts and financial data of the Borrower; and
29
(c) The Issuer or the Bank may pursue all other remedies now or hereafter
existing at law or in equity to collect all amounts then due and thereafter to become due
under this Agreement, the Mortgage or the Note or to force the performance and
observance of any other obligation or agreement of the Borrower under those instruments.
In addition, the Issuer or the Bank may, at its election, but without any obligation to do so,
do anyone or more of the following: (a) terminate its commitment to lend hereunder; (b) reduce
any claim to judgment, which judgment shall bear interest at the Default Rate; (c) exercise any and
all rights and remedies afforded by this Agreement, the other Bond Documents, law, equity or
otherwise; (d) set -off and apply, to the extent thereof and to the maximum extent permitted by law,
any and all deposits, funds, or assets at any time held and any and all other indebtedness at any
time owing by the Issuer to or for the credit or account of the Borrower against any Indebtedness;
or ( e) to the extent permitted by law, in its own name or in the name of the Borrower, enter into
possession of the Mortgaged Property, perform all work necessary to complete the construction
of the Improvements substantially in accordance with the Plans (as modified as deemed necessary
by the Issuer), Bond Documents, laws, and governmental requirements, and continue to employ
the Borrower's architect, engineer, and any contractor pursuant to the applicable contracts or
otherwise. The Borrower hereby appoints the Bank as the attorney-in-fact of the Borrower, which
power of attorney is irrevocable and coupled with an interest, with full power of substitution and
in the name of the Borrower, if the Bank elects to do so, upon the occurrence of a Default, to (i)
use such sums as are necessary, including any proceeds of the Loan and any the Borrower's
Deposit, make such changes or corrections in the Plans and employ such architects, engineers, and
contractors as may be required for the purpose of completing the construction of the Improvements
substantially in accordance with the Plans (as modified as deemed necessary by the Bank), Bond
Documents, laws and governmental requirements, or as otherwise may be necessary or desirable
for purposes of completing such construction; (ii) execute all applications and certificates in the
name of the Borrower which may be required for completion of construction of the Improvements;
(iii) endorse the name of the Borrower on any checks or drafts representing proceeds of any
insurance policies, or other checks or instruments payable to the Borrower with respect to the
Mortgaged Property; (iv) do every act with respect to the construction of the Improvements which
the Borrower may do; (v) prosecute or defend any action or proceeding incident to the Mortgaged
Property; (vi) pay, settle, or compromise all bills and claims so as to clear title to the Mortgaged
Property; and (vii) take over and use all or any part of the labor, materials, supplies and equipment
contracted for, owned by, or under the control of the Borrower, whether or not previously
incorporated into the Improvements. Any amounts expended by the Bank shall be a demand
obligation owing by the Borrower to the Bank. The Bank shall have no liability to the Borrower
for the sufficiency or adequacy of any such actions taken by the Bank.
(End of Article VII)
30
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Usury Laws. The Borrower and the Issuer intend to conform to and
contract in strict compliance with applicable usury law from time to time in effect. All agreements
between the Issuer and the Borrower (or any other party liable with respect to any Indebtedness
under the Bond Documents) are hereby limited by the provisions of this Section which shall
override and control all such agreements, whether now existing or hereafter arising. In no way,
nor in any event or contingency (including but not limited to prepayment, default, demand for
payment, or acceleration of the maturity of any obligation), shall the interest taken, reserved,
contracted for, charged, chargeable, or received under this Agreement, the Note, any of the other
Bond Documents, or otherwise, exceed the maximum amount permitted under applicable law
("Maximum Amount"). If, from any possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such construction shall be subject
to the provisions of this Section and such document shall ipso facto be automatically reformed and
the interest payable shall be automatically reduced to the Maximum Amount, without the necessity
of execution of any amendment or new document. If the Bank or the Issuer shall ever receive
anything of value which is characterized as interest under applicable law and which would apart
from this provision be in excess of the Maximum Amount, an amount equal to the amount which
would have been excessive interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Indebtedness in the inverse order of its maturity and not to the
payment of interest, or be refunded to the Borrower or the other payor thereof, at the election of
the Bank in its sole discretion or as required by applicable law. The right to accelerate maturity
of the Note or any other Indebtedness does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and neither the Issuer nor the Bank
intends to charge or receive any unearned interest in the event of acceleration. All interest paid
or agreed to be paid by the Borrower shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term (including any renewal
or extension) of such Indebtedness so that the amount of interest on account of such Indebtedness
does not exceed the Maximum Amount. As used in this Section, the term "applicable law" shall
mean the laws of the State or the federal laws of the United States applicable to this transaction,
whichever laws allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
Section 8.2. The Issuer's or Bank's Consent. Except where otherwise expressly provided
in the Bond Documents, in any instance where the approval, consent or the exercise of judgment
of the Issuer or the Bank is required, the granting or denial of such approval or consent and the
exercise of such judgment shall be (a) within the reasonable discretion of the Issuer or the Bank;
(b) deemed to have been given only by a specific writing intended for the purpose given and
executed by the Bank; and (c) except as expressly stated otherwise in the Bond Documents, free
from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents
by the Issuer or the Bank, neither the Bank nor the Issuer have any obligation or responsibility
whatsoever for the adequacy, form or content of the Plans, the Budget, any contract, any change
order, any lease, or any other matter incident to the Mortgaged Property or the construction of the
31
Improvements. The Issuer's and Bank's acceptance of an assignment of the Plans shall not
constitute approval of the Plans. Any inspection or audit of the Mortgaged Property or the books
and records of the Borrower, or the procuring of documents and financial and other information,
by or on behalf of the Bank or the Issuer shall be for the Issuer's and Bank's protection only, and
shall not constitute any assumption of responsibility to the Borrower or anyone else with regard
to the condition, construction, maintenance or operation of the Mortgaged Property, or relieve the
Borrower of any of the Borrower's obligations. The Borrower has selected all surveyors,
architects, engineers, contractors, materialmen and all other persons or entities furnishing services
or materials to the Project. Neither the Issuer nor the Bank has any duty to supervise or to inspect
the Mortgaged Property or the construction of the Improvements nor any duty of care to the
Borrower or any other person to protect against, or inform the Borrower or any other person of,
the existence of negligent, faulty, inadequate or defective design or construction of the
Improvements. Neither the Issuer nor the Bank shall be liable or responsible for any defect in the
Mortgaged Property or the Improvements, the performance or default of the Borrower, the
Borrower's architect, engineer, contractor, the Construction Consultant, or any other party, or for
any failure to construct, complete, protect or insure the Improvements, or for the payment of costs
of labor, materials, or services supplied for the construction of the Improvements, or for the
performance of any obligation of the Borrower whatsoever. Nothing, including any Advance or
acceptance of any document or instrument, shall be construed as a representation or warranty,
express or implied, to any party by the Bank. Inspection shall not constitute an acknowledgment
or representation by the Bank or the Construction Consultant that there has been or will be
compliance with the Plans, Bond Documents, applicable laws and governmental requirements or
that the construction is free from defective materials or workmanship. Inspection whether or not
followed by notice of Default shall not constitute a waiver of any Default then existing, or a
waiver of the Bank's right thereafter to insist that the Improvements be constructed in accordance
with the Plans, Bond Documents, applicable laws, and governmental requirements. The Bank's
failure to inspect shall not constitute a waiver of any of the Bank's rights under the Bond
Documents or at law or in equity.
Section 8.3. Miscellaneous. This Agreement may be executed in several counterparts,
all of which are identical, and all of which counterparts together shall constitute one and the same
instrument. The Bond Documents are for the sole benefit of the Bank the Issuer and the Borrower
and are not for the benefit of any third party. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or validity of any other
provision and the determination that the application of any provision of this Agreement to any
person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to other persons or circumstances. Time shall be of the essence
with respect to the Borrower's obligations under the Bond Documents. This Agreement, and its
validity, enforcement and interpretation, shall be governed by the laws of the State (without
regard to any conflict of laws principles) and applicable United States federal law.
Section 8.4. Notices. Unless specifically provided otherwise, any notice for purposes
of this agreement or any other Bond Document shall be given in writing or by telex or by facsimile
(fax) transmission and shall be addressed or delivered to the Notice Address. If sent by prepaid,
registered or certified mail (return receipt requested), the notice shall be deemed effective when
32
the receipt is signed or when the attempted initial delivery is refused or cannot be made because
of a change of address of which the sending party has not been notified; if transmitted by telex,
the notice shall be effective when transmitted (answerback confirmed); and if transmitted by
facsimile or personal delivery, the notice shall be effective when received. No notice of change
of address shall be effective except upon actual receipt, and service of a notice required by any
applicable statute shall be considered complete when the requirements of that statute are met. This
Section shall not be construed in any way to affect or impair any waiver of notice or demand
provided in any Bond Document or to require giving of notice or demand to or upon any person
in any situation or for any reason.
Section 8.5. Successors and Assiins. This Agreement shall be binding upon the
Borrower, and the Borrower's heirs, devisees, representatives, successors and assigns, and shall
inure to the benefit of the Issuer and its successors and assigns, provided, however, that the
Borrower shall not assign or encumber any interest of the Borrower hereunder without the prior
written consent of the Issuer. The Bank may sell or offer to sell the Loan or interests in the Loan
to one or more assignees or participants. The Bank may disseminate any information it has
pertaining to the Loan, Project, the Borrower, to any actual or prospective assignee or participant.
Section 8.6. Modification or Termination. ,The Bond Documents may only be modified
or terminated by a written instrument or instruments intended for that purpose and executed by
the party against which enforcement thereof is asserted. This Agreement shall continue in full
force and effect until the Bond is paid in full; and all representations and warranties and all
provisions herein for indemnity of the Bank or the Issuer (and any other provisions herein
specified to survive) shall survive payment in full of the Indebtedness and any release or
termination of this Agreement or of any other Bond Documents for a period of four years. This
Agreement may not be modified except with the prior written consent of the Bank.
Section 8.7. Costs and Expenses. Without limitation of any Bond Document and to the
extent not prohibited by applicable laws, the Borrower shall pay when due, and reimburse to the
Bank or the Issuer on demand, and indemnify the Bank and the Issuer from, all out-of-pocket fees,
costs, and expenses paid or incurred by the Bank or the Issuer in connection with the negotiation,
preparation and execution of this Agreement and the other Bond Documents (and any amendments,
approvals, consents, waivers and releases requested, required, proposed or done from time to
time), or in connection with the disbursement, administration or collection of the Loan or the
enforcement of the obligations or the exercise of any right or remedy of the Bank or the Issuer
(including costs of arbitration) including (a) fees and expenses of the Bank's and the Issuer's
counsel; (b) fees and charges of each Construction Consultant; (c) appraisal, re-appraisal and
survey costs; (d) title insurance charges and premises; (e) title search or examination costs,
including abstracts, abstractors' certificates and uniform commercial code searches; (t) judgment
and tax lien searches for the Borrower; (g) escrow fees; (h) fees and costs of environmental
investigations and site assessments; (i) recordation taxes, documentary taxes, transfer taxes and
mortgage taxes, (j) fIling and recording fees, and (k) loan brokerage fees. The Borrower shall pay
all reasonable costs and expenses incurred by the Bank and the Issuer, including attorneys' fees,
if the obligations or any part thereof are sought to be collected by or through an attorney at law,
whether or not involving probate, arbitration, appellate, administrative or bankruptcy proceedings.
33
The Borrower shall pay all reasonable costs and expenses of complying with the Bond Documents,
whether or not such costs and expenses are included in the Budget. The Borrower's obligations
under this Section shall survive the delivery of the Bond Documents, the making of Advances, the
payment in full of the obligations, the release or determination of the Bond Documents, the
foreclosure of the Mortgage or conveyance in lieu of foreclosure, any bankruptcy or other debtor
relief proceeding, and any other event whatsoever.
Section 8.8. Further Assurances. The Borrower will, on request of the Issuer, (a)
promptly correct any defect, error or omission in any Bond Document; (b) execute, acknowledge,
deliver, procure, record or file such further instruments and do such further acts deemed
necessary, desirable or proper by the Bank to carry out the purposes of the Bond Documents and
to identify and subject to the liens and security interest of the Bond Documents any property
intended to be covered thereby, including any renewals, additions, substitutions, replacements,
or appurtenances to the Mortgaged Property (Combined); (c) execute, acknowledge, deliver,
procure, file or record any document or instrument deemed necessary, desirable, or proper by the
Issuer to protect the liens or the security interest under the Bond Documents against the rights or
interests of third persons; and (d) provide such certificates, documents, reports, information,
affidavits and other instruments and do such further acts deemed necessary, desirable or proper
by the Issuer to comply with the requirements of any agency having jurisdiction over the Issuer.
Section 8.9. No Assiinment. The Borrower shall not assign, transfer or encumber its
rights or obligations under any Bond Document or any proceeds of the Loan without the prior
written consent of the Issuer and the Bank.
Section 8.10. Forum. The Borrower hereby irrevocably submits generally and
unconditionally for itself and in respect of its property to the jurisdiction of any state court, or any
United States federal court, sitting in the State, over any suit, action or proceeding arising out of
or relating to this Bond Purchase Agreement or the Indebtedness. The Borrower hereby
irrevocably waives, to the fullest extent permitted by law, any objection that the Borrower may
now or hereafter have to the laying of venue in any such court and any claim that any such court
is an inconvenient forum. Nothing herein shall affect the right of the Issuer or the Bank to serve
process in any manner permitted by law or limit the right of the Issuer or the Bank to bring
proceedings against the Borrower in any other court or jurisdiction.
Section 8.11. Inter:pretation. References to "Dollars", "$", "money", "payments" or other
similar financial or monetary terms are references to lawful money of the United States of
America. References to Articles, Sections, and Exhibits are, unless specified otherwise,
references to articles, sections and exhibits of this Agreement. Words of any gender shall include
each other gender. Words in the singular shall include the plural and words in the plural shall
include the singular. The.words "herein," "hereof," "hereunder" and other similar compounds
of the word "here" shall refer to the entire Agreement and not to any particular provision or
section. The words "include" and "including" shall be interpreted as if followed by the words
"without limitation". Captions and headings in the Bond Documents are for convenience only and
shall not affect the construction of the Bond Documents.
34
Section 8.12. No Partnership.. etc. The relationship between the Issuer, the Bank and the
Borrower are solely those of lender and borrower. Neither the Issuer nor the Bank has any
fiduciary or other special relationship with or duty to the Borrower and none is created by the
Bond Documents. Nothing contained in the Bond Documents, and no action taken or omitted
pursuant to the Bond Documents, is intended or shall be construed to create any partnership, joint
venture, association, or special relationship between the Borrower, the Bank and the Issuer or in
any way make the Issuer or the Bank a co-principal with the Borrower with reference to the
Project, the Mortgaged Property or otherwise. In no event shall the Issuer's or Bank's rights and
interests under the Bond Documents be construed to give the Issuer or the Bank the right to
control, or be deemed to indicate that the Issuer or the Bank is in control of, the business,
properties, management or operations of the Borrower.
Section 8.13. Records. The unpaid amount of the Loan set forth on the books and records
of the Bank maintained in the ordinary course of its business shall be presumptive evidence of the
amount thereof owing and unpaid unless proven otherwise by the Borrower, but failure to record
any such amount on the books and records shall not limit or affect the obligations of the Borrower
under the Bond Documents to make payments on the Loan when due.
Section 8.14. Entire A~reement. The- Bond Documents constitute the entire understanding
and agreement between the Borrower and the Issuer with respect to the transactions arising in
connection with the Loan and supersede all prior written or oral understandings and agreements
between the Borrower and the Issuer with respect to the matters addressed in the Bond Documents.
The Bank has not made any commitments to extend the term of the Loan past its stated maturity
date or to provide the Borrower with fmancing except as set forth in the Bond Documents. Except
as incorporated in writing in the Bond Documents, there are not, and were not, and no persons
are or were authorized by the Bank to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the matters addressed in the Bond
Documents.
THE WRITTEN BOND DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(End of Article VIII)
35
IN WITNESS WHEREOF, the Issuer and the Borrower have caused this Agreement to be
duly executed in their respective names, all as of the date hereinbefore written.
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Chair
WESLEY HOUSE COMMUNITY
CENTER, INC.
By:
Its President
36
EXHIBIT A
PROMISSORY NOTE
Wesley House Community Center, Inc. (the "Borrower"), a corporation not-for-profit
formed and. existing under the laws of the State of Florida, for value received, promises to pay to
the order of Monroe County Industrial Development Authority (the "Issuer"), and its successors
and assigns, including First Union National Bank (the "Bank"), the principal sum of One Million
and OO/IOCt DOLLARS ($1,000,000) or such lesser amount as shall be loaned to the Borrower
pursuant to the Agreement (hereinafter defmed) and to pay interest on the unpaid balance of such
principal sum from and after the date hereof as hereinafter provided until the payment of such
principal sum has been made and in addition to pay all Additional Payments (as defined in the
hereinafter defined Agreement).
This Note has been executed and delivered by the Borrower pursuant to a certain Loan
Agreement (the "Agreement") dated June 15, 2000, between the Issuer and the Borrower, and is
subject to all terms and conditions of the Agreement. Terms used herein shall have the meanings
ascribed tllereto in the Agreement. Under the Agreement, the Issuer has agreed to loan the
Borrower the principal proceeds received from the sale of the Issuer's Industrial Development
Revenue Bond, Series 2000 (Wesley House Community Center, Inc. Project) (the "Bond") to
assist in the financing and refinancing of the Project (as defined in the Agreement), and the
Borrower has agreed to repay such loan by making payments ("Loan Payments") at the times and
in the amoulnts set forth in this Note for application to the payment of the principal of and interest
on the Bon(l as and when due, or as otherwise provided in the Agreement, and in addition to pay
all AdditioIlal Payments as and when due under the Agreement.
The Bond has been issued, concurrently with the execution and delivery of this Note,
pursuant to a Resolution of the Issuer adopted June 14, 2000 (the "Resolution") and the Bond
Purchase arld Construction Financing Agreement (the "Bond Purchase Agreement"), dated June
15, 2000, b~etween the Issuer, the Borrower and the Bank.
To provide funds sufficient to pay the principal and interest on and any other payments due
under the Bond as and when due, the Borrower hereby agrees to and shall make Loan Payments
pursuant to this Note on the same date and in the same amount as the principal and interest and
any other payment due on the Bond on such date.
This :Note shall bear interest on any overdue installment of principal and (to the extent
permitted b:y law) interest at the Default Rate (as defined in the Agreement).
All Loan Payments shall be payable in lawful money of the United States of America and
shall be made to the Issuer or its assign at its designated office.
The obligation of the Borrower to make the payments required hereunder shall be absolute
and unconditional and the Borrower shall make such payments without abatement, diminution,
postponement or deduction regardless of any cause or circumstances whatsoever including, without
A-I
limitation, any defense, set-off, recoupment or counterclaim which the Borrower may have or
assert against the Issuer, the Bank or any other person.
This Note is subject to optional prepayment upon the same terms and conditions, on the same
date or dates and at the same prepayment prices, as the Bond is subject to optional prepayment,
and not otherwise, and the Borrower hereby agrees that it will make Loan Payments hereunder in
an amount equal to the Bond Service Charges on the Bond due and payable on each such
prepayment date.
Whenever the principal of the Bond then outstanding, and the interest accrued thereon, shall
have been declared to be immediately due and payable pursuant to the Resolution, the unpaid
principal amount of and accrued interest on this Note shall, without further notice or demand, also
be due and payable on the date on which the principal of and interest on the Bond shall have been
declared to be due and payable.
To the extent permitted by law, the Borrower waives demand, protest and notice of maturity,
nonpayment or other notices necessary to hold the Borrower liable hereunder, except as required
by the Bond Documents.
In no event shall the interest rate hereunder exceed the maximum rate permitted by law and
in the event any interest otherwise payable hereunder should exceed said maximum legal rate the
excess shall be applied as a reduction of the principal hereof.
The e~nforcement and interpretation of this Note shall be governed by the Laws of the State
of Florida.
This ]Note is subject to all terms and conditions of the Loan Agreement, and by the purchase
and acceptance of this Note, the owner hereof signifies consent to all of the provisions of the
aforementi()ned document.
Should the Borrower fail to pay the installments of interest or principal (if applicable) within
seven (7) days after the due date provided herein, the Borrower further promises to pay, from the
source pro"ided herein, a late payment charge equal to four percent (4 %) of the amount of the
unpaid installment as liquidated compensation to the Issuer for the extra expense to the Issuer to
process anc( administer the late payment, the Borrower agreeing, by execution hereof, that any
other measure of compensation for a late payment is speculative and impossible to compute. This
provision f4)r late charges shall not be deemed to extend the time for payment or be a "grace
period" or "cure period" that gives the Borrower a right to cure a Default. Imposition of late
charges is fLot contingent upon the giving of any notice or lapse of any cure period provided for
in the Boncl Documents and shall not be deemed a waiver of any right or remedy of the Issuer
including w'ithout limitation, acceleration of this Note.
All of the rights, remedies, powers and privileges (together, "Rights") of the Issuer provided
for in this I\r ote and in any other Bond Document are cumulative of each other and of any and all
other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or
A-2
subsequent employment of any other appropriate Right. No single or partial exercise of any Right
shall exhaust it, or preclude any other or further exercise thereof, and every Right may be
exercised at any time and from time to time. No failure by the Issuer to exercise, nor delay in
exercising any Right, including but not limited to the right to accelerate the maturity of this Note,
shall be construed as a waiver of any Default or as a waiver of the Right. Without limiting the
generality of the foregoing provisions, the acceptance by the Issuer from time to time of any
payment under this Note which is past due or which is less than the payment in full of all amounts
due and payable at the time of such payment shall not i) constitute a waiver of or impair or
extinguish the right of the holder hereof to accelerate the maturity of this Note or to exercise any
other Right at the time or at any subsequent time, or nullify any prior exercise of any such Right,
or ii) constitute a waiver of the requirement of punctual payment and performance or a novation
in any respect.
If the Issuer retains an attorney in connection with any Default or at the Maturity Date or
to collect, enforce or defend this Note or any other Bond Document in any lawsuit, at trial, or in
any appellate, probate, reorganization, bankruptcy or other proceeding, or if the Borrower sues
the Issuer in connection with this Note or any other Bond Document and does not prevail, then
the Borrower agrees to pay to the Issuer, in addition to principal, interest and any other sums
owing to the Issuer under the Bond Documents, all reasonable costs and expenses incurred by the
Issuer in trying to collect this Bond or in any such suit or proceeding, including without limitation
reasonable attorneys' fees, paralegals' fees and costs.
In no event (including but not limited to prepayment, default, demand for payment, or
acceleration of maturity) shall the interest taken, reserved, contracted for, charged or received
under this Note or under any of the other Bond Documents or otherwise, exceed the maximum
non usurious amount permitted by applicable law (the "Maximum Amount"). If, from any possible
construction of any document, interest would otherwise be payable in excess of the Maximum
Amount, then ipso facto, such document shall be reformed and the interest payable reduced to the
Maximum Amount, without necessity of execution of any amendment or new document. If the
holder hereof ever receives interest in an amount which apart from this provision would exceed
the Maximum Amount, the excess shall, without penalty, be refunded to the Borrower, or at the
option of the Borrower, be applied to the unpaid principal of this Note in inverse order of maturity
of installments and not to the payment of interest. The Issuer does not intend to charge or receive
unearned interest on acceleration. All interest paid or agreed to be paid to the Issuer shall be
spread throughout the full term (including any renewal or extension) of the debt so that the amount
of interest does not exceed the Maximum Amount.
A-3
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of June 15, 2000.
WESLEY HOUSE COMMUNITY
CENTER, INC.
By:
Its President
Assigned, without recourse, to First Union National Bank. Dated June 15, 2000.
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Chair
G: \06208\165\Loan Agreement(2). wpd
A-4
EXHffiIT C
MORTGAGE AND SECURITY AGREEMENT
This Instrument Was Prepared By /
Record and Return To:
Mark E. Raymond, Esq.
P.O. Box 3888
West Palm Beach, FL 33402
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
This document is exempt from the excise tax on documents and the intangible personal property
tax pursuant to Section 159.50, Florida Statutes.
TABLE OF CONTENTS
Paie
ARTICLE I DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3. Security Agreement ...................................... 7
AR TIC LE II GRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. 1 . Grant................................................ 7
2.2 Condition of Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Subrogation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III ASSIGNMENT OF LEASES AND RENTS ...................... 8
3.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Payment of Rents to Mortgagor, as trustee, until Default ...... . . . . . . . . 8
3 . 3 Performance Under Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3 .4 Leases In Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5 Provisions of Leases and Approval of Tenants . . . . . . . . . . . . . . . . . . . . . 9
3.6 Termination or Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7 No Obligation of Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Cumulative Remedies ..................................... 9
3 .9 Notification of Mortgagee's Rights ........................... 10
3.10 Leasing Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 Attorney-in-Fact ....................................... 10
3 .12 Other Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13. Section 697 .07 of the Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES .................... 11
4.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Organization, Corporate Power, Partnership Power, Etc ............. 11
4. 3 Validity of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4 . 5 Other Agreements ...................................... 11
4.6 Other Information ...................................... 12
4. 7 Title.. . . · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.8 No Violations ......................................... 12
4. 9 Taxes.. · . · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 Litigation............................................ 12
4 .11 Utilities............................................. 12
4.12 Condition of Mortgaged Property ............................ 13
4.13 Zoning.............................................. 13
4 .14 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.15 Fictitious Name Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.16 Junior Mortgage ....................................... 13
4.17 . Environmental Contamination/Hazardous Material ................. 13
4.18 Facilities For Handicapped . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.19 Representations and Warranties in Other Bond Documents . . . . . . . . . . . . 14
4.20 Reliance on Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V AFFIRMATIVE COVENANTS ................ . . . . . . . . . . . . . 14
5.1 Payment and Performance ................................. 14
5 .2 Existence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.4 Impositions........................................ . . . 14
5 . 5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6 Restoration Following Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5 . 7 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.8 Tax and Insurance Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5 . 9 Repair....................... . . . . . . . . . . . . . . . . . . . . . . . 18
5.10 Inspection............................................ 18
5.11 Contest of Tax Assessments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.12 Expenses ............................................ 18
5 . 13 Preservation of Agreements ................................ 19
5.14 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.15 Estoppel Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.16 Indemnification........................................ 19
5.17 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.18 Junior Mortgage(s) and Rights of Mortgagee . . . . . . . . . . . . . . . . . . . . . 20
5.19 Financing Statements .................................... 21
5.20 Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5 .21 Hazardous Material ..................................... 22
5.22 Financial Reports, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5 .23 Annual Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.24 Reappraisal of Mortgaged Property ........................... 23
5.25 Performance of Bond Documents ............................ 23
5 .26 Performance of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.27 Interest Rate Protection Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5 .28 Bond Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6 .1 Use Violations, Etc ..................................... 24
ii
6.2 Care of the Mortgaged Property ............................. 24
6.3 Other Liens and Mortgages ................................ 25
6.4 Transfer of Mortgaged Property ............................. 25
6.5 Mortgagor's Article of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.6 Transfer of Other Assets .................................. 25
6. 7 Environmental Contamination/Hazardous Material ................. 26
ARTICLE VII EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7 .1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VIII
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
8.9
8.10
ARTICLE IX
9.1
9.2
9.3
RIGHTS AND REMEDIES ........................... 27
Remedies ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Remedies Cumulative and Concurrent ......................... 30
Waiver, Delay or Omission ................................ 30
Credit of Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sale · · . · · . · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Proofs of Claim · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Waiver of Redemption, Notice, Marshalling, Etc .................. 31
Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Discontinuance of Proceedings .............................. 31
Mortgagee's Actions · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
MORTGAGEE'S PERFORMANCE ..................... 32
Governmental Regulation of Mortgagee ........................ 32
Mortgagee's Failure to Perform ............................. 32
Mortgagor's Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.1 Maximum Rate of Interest ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10 · 2 Continuing Agreement ................................... 33
10.3 Survival of Warranties and Covenants ......................... 33
10.4 No Representation By Mortgagee ............................ 34
10.5 Notice.............................................. 34
10.6 Mortgagee's Right to Pay and Perform . . . . . . . . . . . . . . . . . . . . . . . . . 34
10. 7 Covenants Running With the Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.9 Invalidity............................................ 34
10.10 Modification · . · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.11 Applicable Law · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.12 Replacement of Note · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10. 13 Strict Performance · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Hi
10.14 MANDATORY ARBITRATION ............................ 35
10.15 SPECIAL RULES ...................................... 35
10.16 RESERVATIONS OF RIGHTS ............................. 36
iv
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (this
"Mortgage"), is made as of the _ day of _ 2000, by Wesley House Community Center, Inc.
(the "Mortgagor"), as mortgagor and debtor, whose principal place of business is 1300 Truman
Avenue, Key West, Florida 33040, to Monroe County Industrial Development Authority (together
with its successors and assigns, the "Mortgagee"), as mortgagee and secured party, whose address
is c/o County Attorney, Monroe County, Florida, 502 Whitehead Street, 3rd Floor, Key West,
Florida 33040.
WHEREAS, Monroe County Industrial Development Authority has by Resolution adopted
June 14, 2000 (as amended and supplemented from time to time, the "Resolution") authorized the
issuance of its Industrial Development Revenue Bond, Series 2000 (Wesley House Community
Center, Inc. Project) in the aggregate principal amount of not exceeding $1,000,000 (the "Bond")
and has agreed to loan the proceeds thereof (the "Loan") to the Mortgagor pursuant to the Loan
Agreement, dated as of ,2000 between the Mortgagee and the Mortgagor (as amended
--
from time to time, the "Agreement") to finance a portion of the costs of acquiring, restoring and
renovating improvements to a social service center to be owned and operated by Mortgagor; and
WHEREAS, the obligation of the Mortgagor to repay the Loan shall be evidenced by a
promissory note of the Mortgagor (the "Note"); and
WHEREAS, the Agreement (except for Unassigned Issuer's Rights [as defined in the
Agreement]), this Mortgage and the Note will be assigned and transferred to First Union National
Bank, the purchaser of the Bond, to provide for and secure payment of the Bond; and
WHEREAS, to induce the Issuer to issue the Bond to fund the Loan and to evidence and
secure the obligations of the Mortgagor under the Agreement, the Mortgagor has executed and
delivered the Note, this Mortgage and certain other loan documents, as hereinafter defmed, to the
Mortgagee;
NOW, THEREFORE, in consideration of the foregoing, the making of the Loan and the
issuance of the Bond, Mortgagor does hereby agree as follows:
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 DefInitions. Terms used in this Mortgage and not otherwise defmed herein shall have
the meanings ascribed thereto pursuant to the Agreement and the Bond Purchase Agreement
(hereinafter defined). In addition, as used in this Mortgage and in the exhibits attached hereto,
the following terms shall have the following meanings herein specified, such definition to be
applicable equally to the singular and plural forms of such terms:
(a) Environmental Claim: Any investigative, enforcement, cleanup, removal,
containment, remedial or other private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable Environmental Requirement, against
Mortgagor or against or with respect to the Mortgaged Property, or any condition, use or activity
on the Mortgaged Property (including any such action against Mortgagee), and any claim at any
time threatened or made by any person against Mortgagor or against or with respect to the
Mortgaged Property or any condition, use or activity on the Mortgaged Property (including any
such claim against Mortgagee), relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from or in any way arising in connection with any Hazardous Material or
any Environmental Requirement.
(b) Environmental Law: Any federal, state or local law, statute, ordinance,
code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of
common law, and any judicial or agency interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the environment (including but not limited to ground
or air or water or noise pollution or contamination, and underground or above ground tanks) and
shall include without limitation, the Solid Waste Disposal Act, 42 D.S.C.~ 6901 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 D.S.C. 9
9601 et seq. ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act
of 1986 ("SARA"); the Hazardous Materials Transportation Act, 49 D.S.C. ~ 1801 et seq.; the
Federal Water Pollution Control Act, 33 D.S.C. ~ 1251 et seq.; the Clean Air Act, 42 D.S.C. ~
7401 et seq.; the Toxic Substances Control Act, 15 D.S.C. ~ 2601 et seq.; the Safe Drinking
Water Act, 42 D.S.C. ~ 300f et seq.; the Florida Resource Recovery and Management Act, the
Water Quality Assurance Act of 1983, The Florida Resource Conservation and Recovery Act, the
Florida Air and Water Pollution Control Act, The Florida Safe Drinking Water Act, The Pollution
Spill Prevention and Control Act and any other local, state or federal environmental statutes, and
all rules, regulations, orders and decree now or hereafter promulgated under any of the foregoing,
as any of the foregoing now exist or may be changed or amended or come into effect in the future.
(c) [Reserved]
(d) Environmental Requirement: Any Environmental Law, agreement or
restriction (including but not limited to any condition or requirement imposed by any insurance
or surety company), as the same now exists or may be changed or amended or come into effect
in the future, which pertains to health, safety, any Hazardous Material, or the environment,
including but not limited to ground or air or water or noise pollution or contamination, and
underground or above ground tanks.
(e) Events of Default: Those events described in Article VII hereof.
(f) Fixtures: All property and equipment now owned or hereafter acquired by
Mortgagor and now or hereafter located under, on, or above the Land, whether or not permanently
affixed, which, to the fullest extent permitted by applicable law in effect from time to time, shall
be deemed fixtures and a part of the Land.
2
(g) Governmental Authority: Any (domestic or foreign) federal, state, county,
municipal or other governmental department, entity, authority, commission, board, bureau, court,
agency or any instrumentality of any of them.
(h) Governmental Requirement: Any law, enactment, statute, code, ordinance,
order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license,
authorization, or other direction or requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered, or issued applicable to Mortgagee, Mortgagor
or the Mortgaged Property, including, without limitation, any Environmental Law.
(i) [Reserved]
(j) Hazardous Material: Any substance, whether solid, liquid or gaseous which
is listed, defined or regulated as a "hazardous substance," "hazardous waste," or "solid waste,"
or pesticide or otherwise classified as hazardous or toxic, in or pursuant to any Environmental
Requirement; or which is or contains asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum
hydrocarbons; which causes or poses a threat to cause a contamination or nuisance on the
Mortgaged Property or any adjacent property or a hazard to the environment or to the health or
safety of persons on the Mortgaged Property.
(k) Impositions: All (i) real estate and personal property taxes and other taxes
and assessments, public or private; utility rates and charges including those for water and sewer;
all other governmental and non-governmental charges and any interest or costs or penalties with
respect to any of the foregoing; and charges for any public improvement, easement or agreement
maintained for the benefit of or involving the Mortgaged Property, general and special, ordinary
and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that at any time
prior to or after the execution of this Mortgage may be assessed, levied or imposed upon the
Mortgaged Property or the Rent or income received therefrom, or any use or occupancy thereof,
(ii) other taxes, assessments, fees and governmental and non-governmental charges levied,
imposed or assessed upon or against Mortgagor or any of its properties and (iii) taxes levied or
assessed upon this Mortgage, the Note, and the other Obligations, or any of them.
(1) Improvements: All buildings, structures, appurtenances and improvements,
including all additions thereto and replacements and extensions thereof, now constructed or
hereafter to be constructed under, on or above the Land, which term includes any part thereof.
(m) Junior Mortgage: Any mortgage permitted by Mortgagee which now or
hereafter encumbers all or any portion of the Mortgaged Property and which is junior or
subordinate to the lien of this Mortgage, which term shall collectively refer to all such mortgages
and the note or notes secured thereby.
(n) Land: The real property described in Exhibit "A" attached hereto and made
a part hereof, together with all rights, privileges, tenements, hereditaments, rights-of-way,
easements, appendages, projections, appurtenances, water rights including riparian and littoral
3
rights, streets, ways, alleys, and strips and gores of land now or hereafter in anyway belonging,
adjoining, crossing or pertaining to the Land.
(0) Leases: Any and all leases, subleases, licenses, concessions, or grants of
other possessory interests, together with the security therefor, now or hereafter in force, oral or
written, covering or affecting the Mortgaged Property or any part thereof.
(p) Loan: $1,000,000 as evidenced by the Note.
(q) Loan Agreement: The Loan Agreement, of even date herewith, between
Mortgagor and Mortgagee.
(r) [Reserved]
(s) [Reserved]
(t) Mortgaged Property: The Borrower's interest in the Land, Improvements,
Fixtures, Leases, Rents and Personal Property together with:
(i) all judgments, awards of damages and settlements hereafter made
resulting from condemnation proceedings or the taking of the Mortgaged Property or any part
thereof under the power of eminent domain, or by agreement in lieu thereof, or for any damage
thereto caused by any governmental action (whether by such taking or otherwise), such as without
limitation, any award for change of grade of streets;
(ii) all judgments, awards and settlements hereafter made, and all
insurance proceeds hereafter paid for any damage to the Mortgaged Property, and all unearned
insurance premiums on any insurance policies maintained by the Mortgagor pursuant to this
Mortgage;
and
(iii) all awards and refunds hereafter made with respect to any Imposition;
(iv) the estate, right, title, interest, privilege, claim or demand
whatsoever of Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged
Property.
The term Mortgaged Property includes any part of the foregoing property described as Mortgaged
Property, and all proceeds, products, replacements, improvements, betterments, extensions,
additions, substitutions, renewals, accessories, and appurtenances thereto and thereof.
(u) Mortgagee: Monroe County Industrial Development Authority, its
successors and assigns.
(v) Mortgagor: Wesley House Community Center, Inc.
4
(w) Obligations: (i) Any and all of the indebtedness, liabilities, covenants,
promises, agreements, terms, conditions, and other obligations of every nature whatsoever,
whether joint or several, direct or indirect, absolute or contingent, liquidated or unliquidated, of
Mortgagor to Mortgagee, evidenced by, secured by, under and as set forth in the Note, this
Mortgage or the other Bond Documents;
(ii) Any and all other indebtedness, liabilities and obligations of every
nature whatsoever (whether or not otherwise secured or to be secured) of Mortgagor (whether as
maker, endorser, surety, guarantor or otherwise) to Mortgagee, whether now existing or hereafter
created or arising or now owned or howsoever hereafter acquired by Mortgagee, whether such
indebtedness, liabilities and obligations are or will be joint or several, direct or indirect, absolute
or contingent, liquidated or unliquidated, matured or unmatured; together with all expenses,
attorneys' fees, paralegals' fees and legal assistants' fees incurred by Mortgagee in the
preparation, execution, perfection or enforcement of any document relating to any of the
foregoing; and
(iii) Any and all of the indebtedness, liabilities, covenants, promises,
agreements, terms, conditions and other obligations of any nature whatsoever, whether joint or
general, direct or indirect, absolute or contingent, liquidated or unliquidated, of Mortgagor to
Mortgagee under any Interest Rate Protection Agreements, including, but not limited to, any and
all unpaid accrued payments due Mortgagee, under any Interest Rate Protection Agreement, the
present value of future benefits lost by Mortgagee's nonreceipt of future payments in excess of
corresponding future liabilities under any Interest Rate Protection Agreements, and the costs of
collection of all such amounts.
(x) Partnership: Any general or limited partnership, joint venture, or other
form of partnership, howsoever designated.
(y) Permitted Title Exceptions: Those matters, if any, described in Schedule
B, Section 2, of Attorney's Title Insurance Fund, Inc. commitment number
effective , _ with the exceptions of matters
(z) Person: Any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, government, or agency or political
subdivision thereof, or any other form of entity.
(aa) Personal Property: All of the following property of Mortgagor whether now
owned or existing, or hereafter acquired or arising, whether located in, on, pertaining to, used or
intended to be used in connection with or resulting or created from the ownership, development,
management, or operation of the Land or otherwise:
(i) all Improvements (to the extent same are not deemed to be real
property) and landscaping;
5
(ii) all Fixtures (to the extent same are not deemed to be real property)
and goods to become Fixtures;
(iii) all Pledges, accounts, accounts receivable, other receivables, contract
rights, chattel paper, instruments and documents; any other obligations or indebtedness owed to
Mortgagor from whatever source arising; all rights of Mortgagor to receive any performance or
any payments in money or kind; all guaranties of the foregoing and security therefor; all of the
right, title and interest of Mortgagor in and with respect to the goods, services, or other property
that gave rise to or that secure any of the foregoing, and all rights of Mortgagor as an unpaid seller
of goods and services, including, but not limited to, the rights to stoppage in transit, replevin,
reclamation, and resale;
(iv) all goods, including without limitation, all machinery, equipment,
furniture, furnishings, building supplies and materials, appliances, business machines, tools,
aircraft and motor vehicles of every kind and description, and all warranties and guaranties for any
of the foregoing;
(v) all inventory, merchandise, raw materials, parts, supplies,
work-in-process and finished products intended for sale, of every kind and description, in the
custody or possession, actual or constructive, of Mortgagor including such inventory as is
temporarily out of the custody or possession of Mortgagor, and any returns upon any accounts and
other proceeds resulting from the sale or disposition of any of the foregoing, including, without
limitation, raw materials, work-in-process, and finished goods;
(vi) all general intangibles, including without limitation, corporate or
other business records and books, computer records whether on tape, disc or otherwise stored,
blueprints, surveys, architectural or engineering drawings, plans and specifications, trademarks,
tradenames, goodwill, telephone numbers, licenses, governmental approvals, franchises, permits,
payment and performance bonds, tax refund claims, and agreements with utility companies,
together with any deposits, prepaid fees and charges paid thereon;
(vii) all Leases and Rents (to the extent same are not deemed to be real
property) ;
(viii) all judgments, awards of damages and settlements from any
condemnation or eminent domain proceedings regarding the Land, the Improvements or any of
the Mortgaged Property;
(ix) all insurance policies required by this Mortgage or the Bond
Documents, the unearned premiums therefor and all loss proceeds thereof;
(x) all other personal property, including without limitation, management
contracts, construction contracts (including the General Contract), architectural contracts
(including the Architect Contract), service contracts, plans and specifications, engineering
contracts, advertising contracts, contracts for purchase and sale of any of the Mortgaged Property,
6
purchase orders, equipment leases, monies in escrow accounts, reservation agreements, prepaid
expenses, deposits and down payments with respect to the sale or rental of any of the Mortgaged
Property, options and agreements with respect to additional real property for use or development
of the Mortgaged Property, end-loan commitments, abstracts of title, all brochures, advertising
materials, condominium documents and prospectuses; and
(xi) all proceeds, products, replacements, additions, betterments,
extensions, improvements, substitutions, renewals and accessions of any and all of the foregoing.
(bb) Pledges: All promises or other expression of intent, including a pledge or
subscription agreement, whether written or oral, and whether now or hereafter existing, by any
Person to give, payor contribute, whether by inter vivos gift, bequest, devise or otherwise, to the
Borrower money or other property for the Borrower's unrestricted use or available for use in
connection with the planning, construction and development of the Project or the payment of the
Loan Payments.
(cc) Rents: All of the rents, royalties, issues, revenues, income, profits, security
deposits and other benefits whether past due, or now or hereafter arising from the Mortgaged
Property and the occupancy, use and enjoyment thereof.
1.2. Rules of Construction. The use of any gender shall include all other genders. The
singular shall include the plural and the plural shall include the singular. The word "or" is not
exclusive and the use of the word "and" may be conjunctive or disjunctive in the sole and absolute
discretion of Mortgagee. The captions of Articles, Sections and Subsections of this Mortgage are
for convenient reference only, and shall not affect the construction or interpretation of any of the
terms and provisions set forth herein.
1.3. Security A~reement. This Mortgage constitutes a "Security Agreement" within the
meaning of and shall create a security interest under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida, with respect to the Fixtures, Leases, Rents and
Personal Property. A carbon, photographic or other reproduction of this Mortgage or of any
financing statement shall be sufficient as a financing statement. The debtor's principal place of
business and the secured party's address is set forth in the introduction to this Mortgage.
ARTICLE II
GRANT
2.1. Grant. For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and to secure the payment, observance, performance and discharge of
the Obligations, Mortgagor does by these presents give, transfer, grant, bargain, sell, alien,
remise, release, assign, mortgage, hypothecate, deposit, pledge, set over, confirm, convey and
warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and to the Mortgaged
Property, whether now owned or held or hereafter acquired by Mortgagor, subject, however, to
7
the Permitted Title Exceptions, to have and to hold the Mortgaged Property unto Mortgagee, its
successors and assigns forever.
2.2 Condition of Grant. Subject to the provisions of this Mortgage, the condition of
these presents is such that if Mortgagor shall pay, observe, perform and discharge the Obligations,
or cause same to be paid, observed, performed and discharged in strict accordance with the terms
thereof, then this Mortgage and the estates, interests, rights and assignments granted hereby shall
be null and void, but otherwise shall remain in full force and effect.
2.3 Subro~ation. The Mortgagee is hereby subrogated to the claims and liens of all
parties whose claims or liens are fully. or partially discharged or paid with the proceeds of the
indebtedness secured by this Mortgage notwithstanding that such claims or liens may have been
canceled and satisfied of record.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
3.1 Assii:nment. The Mortgagor does hereby absolutely and unconditionally assign and
transfer to Mortgagee all of Mortgagor's estate, right, title and interest in and to the Leases and
Rents, to have and to hold the Leases and Rents unto Mortgagee, its successors and assigns
forever. From time to time, upon request of Mortgagee, Mortgagor shall give further evidence
of this assignment to Mortgagee by executing and delivering to Mortgagee specific assignments
of the Leases and Rents, in form and content approved by Mortgagee. All such specific
assignments shall be of the same dignity and priority as this Mortgage. From time to time, upon
request of Mortgagee, Mortgagor shall also execute and deliver to Mortgagee any notification to
tenants or other document reasonably required by Mortgagee.
3.2 Payment of Rents to Mort~a~or.. as trustee.. until Default. So long as no Event of
Default has occurred and which, after notice and any applicable grace period, remains uncured,
Mortgagor may, as trustee for the use and benefit of Mortgagee, collect, receive and accept the
Rents as they become due and payable (but in no event for more than two (2) months in advance);
provided, however, that if the Rents exceed the payments due under the Note, the Mortgagor may
use such excess, first, for the operation and benefit of the Mortgaged Property and, second, for
the general benefit of the Mortgagor. Upon the occurrence of an Event of Default and, after
reasonable notice to and failure by Mortgagor to cure the same within a reasonable period,
Mortgagee may, to the extent permitted by law at its option, remove the Mortgagor as trustee for
the collection of the Rents and appoint any other person including, but not limited to, itself as a
substitute trustee to collect, receive, accept and use all such Rents in payment of the Obligations,
in such order as Mortgagee shall elect in its sole and absolute discretion, whether or not
Mortgagee takes possession of the Mortgaged Property. Mortgagor hereby directs each of the
respective tenants under the Leases, and any rental agent, to pay to Mortgagee all such Rents, as
may now be due or shall hereafter become due, upon demand for payment thereof by Mortgagee
without any obligation on the part of any such tenant or rental agent to determine whether or not
an Event of Default has in fact occurred. Upon an Event of Default, the permission hereby given
8
to Mortgagor to collect, receive and accept such Rents as trustee shall, to the extent permitted by
law, terminate and such permission shall not be reinstated upon a cure of the Event of Default
without Mortgagee t s specific written consent. Further, upon an Event of Default, Mortgagor shall
immediately turn over to Mortgagee all Rents in the actual or constructive possession of
Mortgagor, its afflliates, contractors, or its agents, together with an accounting thereof. Exercise
of Mortgagee t s rights under this Section, and the application of any such Rents to the Obligations,
shall not cure or waive any default or notice of default hereunder or invalidate any act done
pursuant hereto, but shall be cumulative and in addition to all other rights and remedies of
Mortgagee.
3.3 Performance Under Leases. Mortgagor covenants that it shall, at its sole cost and
expense, (a) duly and punctually perform and discharge, or cause to be performed and discharged,
all of the obligations and undertakings of Mortgagor or its agents under the Leases, (b) use its best
efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, (c) promptly notify
Mortgagee if Mortgagor receives any notice from a tenant claiming that Mortgagor is in default
under a Lease and (d) appear in and defend any action or proceeding arising under or in any
manner connected with the Leases.
3.4 Leases In Good Standinl:. All Leases are in full force and effect, and to the
knowledge of Mortgagor there are no defaults thereunder or any defenses or offsets thereto on the
part of any tenant.
3.5 Provisions of Leases and Approval of Tenants. All Leases shall be inferior and
subordinate to the lien of this Mortgage and the terms of each Lease shall so expressly provide.
Mortgagor covenants that all Leases hereafter entered into by Mortgagor shall be in form and
substance satisfactory to Mortgagee. Further, the Mortgagee specifically reserves the right to
approve all proposed tenants, and any assignee or sublessee of any existing tenant. All present
tenants and subtenants are deemed approved by the Mortgagee.
3.6 Termination or Modification. Mortgagor covenants that it shall not, without the
prior express written consent of Mortgagee, enter into a new Lease, or materially modify,
terminate, or consent to the cancellation or surrender of any Lease, or permit any tenant under any
Lease to assign or sublet its rights thereunder.
3.7 N 0 Obli~ation of Mort~aiee. The assignment contained in Section 3.1 shall not
be deemed or construed to constitute Mortgagee as a mortgagee in possession of the Mortgaged
Property nor shall it obligate Mortgagee to take any action or to incur expenses or perform or
discharge any obligation, duty or liability of Mortgagor under any Lease.
3.8 Cumulative Remedies. Each and every right, remedy and power granted to
Mortgagee by this Article shall be cumulative and in addition to every other right, remedy and
power given by the Bond Documents and now or hereafter existing in equity, at law, or by virtue
of statute or otherwise. The failure of Mortgagee to avail itself of any of its rights, remedies and
powers shall not be construed or deemed to be a waiver thereof.
9
3.9 Notification of Mort~aiee's Ri~hts. Mortgagee shall have the right, but not the
obligation, at any time and from time to time, to notify any tenant under any Lease of the rights
of Mortgagee as provided in this Article III and Mortgagor, upon demand from Mortgagee, shall
confirm to such tenant the existence of such rights.
3.10 Leasini Commission. Mortgagor covenants that every agreement to pay leasing
commissions with respect to the leasing of space in the Mortgaged Property, or any part thereof,
are and shall be subject, subordinate and inferior to the right of Mortgagee, so that in the event
Mortgagee acquires title to the Mortgaged Property either at a foreclosure sale or by other means,
Mortgagee will be exonerated and discharged from all liabilities for the payment of any such
commissions or compensations.
3.11 Attorney-in-Fact. To further effectuate Mortgagee's rights under this Article III,
Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, which appointment is coupled with an interest, with full power of substitution,
and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said
attorney-in-fact, to (i) collect and receive the Rents and to issue receipts therefor, (ii) to make,
enter into, extend, modify, amend, terminate, consent to the cancellation or surrender of any
Lease, or permit any tenant to assign or sublet its rights thereunder, (iii) to execute, acknowledge
and deliver any and all instruments and documents that Mortgagee may deem necessary or proper
to implement its rights as provided in this Article III, and (iv) to perform and discharge any and
all obligations and undertakings of Mortgagor under any Lease.
3.12 Other Assi~nments. Mortgagor shall not further assign or transfer the Leases or
Rents except in favor of Mortgagee as provided in this Article III, and shall not create or permit
to be created or to remain, any mortgage, pledge, lien, encumbrance, claim, or charge on the
Leases or Rents. Any transaction prohibited under this Section shall be null and void.
3.13. Section 697.07 of the Florida Statutes. The assignments of Leases and Rents
contained in this Mortgage are intended to provide Mortgagee with all the rights and remedies of
mortgagees pursuant to Section 697 .07 of the Florida Statutes (hereinafter "Section 697 .07 "), as
may be amended from time to time. However, in no event shall this reference diminish, alter,
impair, or affect any other rights and remedies of Mortgagee, including but not limited to, the
appointment of a receiver as provided in Article VIII, Section 8.1 herein, nor shall any provision
in this Section 3.13 diminish, alter, impair or affect any rights or powers of the receiver in law
or equity or as set forth in Article VIII, Section 8.1 herein. In addition, this assignment shall be
fully operative without regard to value of the Mortgaged Property or without regard to the
adequacy of the Mortgaged Property to serve as security for the obligations owed by Mortgagor
to Mortgagee, and shall be in addition to any rights arising under Section 697.07. Further, except
for the notices required hereunder, if any, Mortgagor waives any notice of default or demand for
turnover of rents by Mortgagee, together with any rights under Section 697.07 to apply to a court
to deposit the Rents into the registry of the court or such other depository as the court may
designate.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Mortgagor hereby represents and warrants to
Mortgagee that:
4.2 Or~anization.. Cor:porate Power.. Partnership Power.. Etc. Mortgagor (A) is duly
organized, validly existing and in good standing as a non-stock corporation not-for-profit under
the laws of the State, (B) has the corporate power and authority to own its properties and to carry
on its business as now being conducted, (C) is qualified to do business in the State, (D) is in
compliance with all Governmental Requirements, and (E) has not amended or modified its articles
or certificate of incorporation or its bylaws except as previously disclosed in writing to Mortgagee
prior to the execution hereof.
4.3 Validity of Loan Documents. (i) The execution, delivery and performance by
Mortgagor of the Bond Documents to which it is a party, and the borrowing evidenced by the
Note, (A) are within the powers and purposes of Mortgagor, (B) have been duly authorized by all
requisite action of Mortgagor, (C) do not require the approval of any Governmental Authority
other than the Mortgagee, and (D) will not violate any Governmental Requirement, the articles
of incorporation and bylaws or the partnership agreement of Mortgagor or any indenture,
agreement or other instrument to which Mortgagor is a party or by which it or any of its property
is bound, or be in conflict with, result in a breach of or constitute (with due notice or lapse of time
or both) a default under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of
its property or assets, except as contemplated by the provisions of the Bond Documents; and (ii)
the Bond Documents to which it is a party, constitute the legal, valid and binding obligations of
Mortgagor in accordance with their respective terms.
4.4 Financial Statements. All balance sheets, statements of profit and loss, and other
financial data that have been given to Mortgagee with respect to the Mortgagor, (i) are complete
and correct in all material respects, (ii) accurately present the fmancial condition of said party as
of the dates, and the results of its operations, for the periods for which the same have been
furnished, and (iii) have been prepared in accordance with generally accepted accounting
principles consistently followed throughout the periods covered thereby; all balance sheets disclose
all known liabilities, direct and contingent, as of their respective dates; and there has been no
change in the condition of the Mortgagor, [mancial or otherwise, since the date of the most recent
financial statements given to Mortgagee, other than changes in the ordinary course of business,
none of which changes has been materially adverse.
4.5 Other A2reements. Mortgagor is not a party to any agreement or instrument
materially and adversely affecting it or its present or proposed businesses, properties or assets,
operation or condition, financial or otherwise, and Mortgagor is not in material default in the
performance, observance or fulfillment of any of the material obligations, covenants or conditions
set forth in any agreement or instrument to which it is a party.
11
4.6 Other Information. All other information, including reports, financial statements,
certificates, papers, data and otherwise, given and to be given to Mortgagee with respect (i) to
Mortgagor, (ii) to the Loan and (iii) to others obligated under the terms of the Bond Documents,
are true, accurate and correct in all material respects and complete.
4.7 Title. Mortgagor is indefeasibly seized of and has and will have good and
marketable fee simple title to the Land described on Exhibit A hereto, free and clear of any and
all mortgages, liens, encumbrances, claims, charges, equities, covenants, conditions, restrictions,
easements, rights-of-way and all other matters affecting the Land and Improvements, whether or
not of record, except for the Permitted Title Exceptions. Mortgagor has and will have good,
absolute and marketable title to the Personal Property all free and clear of any and all liens,
charges, encumbrances, security interests and adverse claims whatsoever, except those in favor
of Mortgagee. Mortgagor will preserve its title to the Mortgaged Property described on Exhibit
A and will forever warrant and defend the same to Mortgagee and will forever warrant and defend
the validity and priority of the lien of this Mortgage against the claims of all persons and parties
whomsoever.
4.8 No Violations. To the best knowledge of Mortgagor, no Governmental
Requirement (including, but not limited to, 21 U.S.C. ~~ 811 and 881, and 18 V.S.C. ~ 1961),
and no covenant, condition, restriction, easement or similar matter affecting the Land or
Improvements has been violated, and Mortgagor has not received any notice of violation from any
Governmental Authority or any other person with respect to any of the foregoing matters.
4.9 Taxes. Mortgagor has filed all federal, state, county and municipal income tax
returns required to have been filed by it, and has paid all taxes that have become due pursuant to
such returns, pursuant to any assessments received by it or pursuant to law, and Mortgagor does
not know of any basis for additional assessment with respect to such taxes or additional taxes. The
Land is assessed separately from all other adjacent land for the purposes of real estate taxes and
there is no intended public improvements which may involve any charge being levied or assessed,
or which may result in the creation of any lien upon the Mortgaged Property.
4.10 Liti~ation. There are no judgments outstanding against Mortgagor and there is no
action, suit, proceeding, or investigation now pending (or to the best of Mortgagor's knowledge
after diligent inquiry, threatened) against, involving or affecting Mortgagor or the Mortgaged
Property, or any part thereof, at law, in equity or before any Governmental Authority that if
adversely determined as to the Mortgaged Property or as to Mortgagor would result in a material
adverse change in the business or fmancial condition of the Mortgagor or Mortgagor's operation
and ownership of the Mortgaged Property, nor to the best knowledge of Mortgagor, is there any
basis for such action, suit, proceeding or investigation.
4.11 Utilities. There is available to the Land and Improvements through public or
private easements or rights-of-way abutting or crossing the Land (which would inure to the benefit
of Mortgagee in case of enforcement of this Mortgage) a water supply and a sanitary sewer
service, and electric, gas (if applicable) and telephone service, all of sufficient capacity to serve
the needs of the Land and Improvements according to their intended purpose.
12
4.12 Condition of Mortiaied Property. The Mortgaged Property or any part thereof,
now existing, is not damaged or injured as a result of any fIfe, explosion, accident, flood or other
casualty. The Improvements, if any, as of the date of this Mortgage, are free of any material
defects in material, structure and construction and to the best of Mortgagor's knowledge do not
violate any Governmental Requirements. To the best of Mortgagor's knowledge, there is no
existing, proposed or contemplated plan to modify or realign any street or highway or any
existing, proposed or contemplated eminent domain proceeding that would result in the taking of
all or any part of the Mortgaged Property or that would adversely affect the use or the operation
of the Mortgaged Property.
4.13 Zonin~. The Land is zoned so as to permit the Land and Improvements to be used
for their intended purpose.
4.14 No Default. To the best of Mortgagor's knowledge, no default or event of default
exists under any of the Bond Documents; and no event has occurred and is continuing which, with
notice or the lapse of time, or both, would constitute a default under any provision thereof.
4.15 Fictitious Name Statute. Mortgagor, if applicable, has duly complied with all of
the requirements of the Florida Fictitious Name Statute.
4.16 Junior Mortiaie. No Junior Mortgage exists as of the date hereof.
4.17 . Environmental Contamination/Hazardous Material. To the best of Mortgagor's
knowledge, Mortgagor and the Mortgaged Property are in full compliance with all Environmental
Laws, and there are no civil, criminal or administrative actions, suits, demands, claims, hearings,
notices or demand letters, notices of violation, investigations, or proceedings pending or
threatened against the Mortgagor or the Mortgaged Property relating in any way to any
Environmental Law or any agreement, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved under any Environmental Law. There
have never been nor are there currently any Hazardous Material located on, in, or under the
Mortgaged Property or used in connection therewith, and Mortgagor has never used the
Mortgaged Property for the manufacture, processing, distribution, use, transport, handling,
treatment, storage, disposal, emission, discharge or release of any Hazardous Material. No notice
or advice has been received by Mortgagor of any condition or state of facts that would be
contributing to a claim of pollution or any other damage to the environment by reason of the
conduct of any business on the Mortgaged Property or operation of the Mortgaged Property,
whether past or present.
4.18 Facilities For Handicapped: The Improvements comply with all legal requirements
regarding access and facilities for handicapped or disabled persons, including, without limitation,
and to the extent applicable, Part V of the Florida Building Construction Standards Act entitled
"Accessibility by Handicapped Persons", Chapter 553, Fla. Stat.; the Federal Architectural
Barriers Act of 1988 (42 v.s.c. ~4151, et.seq.), The Fair Housing Amendment Act of 1988 (42
v.s.c. ~3601, et.seq), The Americans With Disabilities Act of 1990 (42 v.s.c. ~12101 et. seq.),
and The Rehabilitation Act of 1973 (29 v.s.c. ~794).
13
4.19 Representations and Warranties in Other Bond Documents. All of the
representations and warranties of the Mortgagor contained in the other Bond Documents are true
and correct in all material respects.
4.20 Reliance on Representations. The Mortgagor acknowledges that the Mortgagee has
relied upon the Mortgagor's representations, has made no independent investigation of the truth
thereof, is not charged with any knowledge contrary thereto that may be received by an
examination of the public records in Tallahassee, Florida and wherein the Land is located, or that
may have been received by any officer, director, agent, employee or shareholder of Mortgagee.
ARTICLE V
AFFIRMATIVE COVENANTS
5.1 Payment and Performance. Mortgagor shall promptly pay and punctually perform,
or shall cause to be promptly paid and punctually performed, all of the Obligations as and when
due and payable.
5.2 Existence. Mortgagor shall preserve and keep in full force and effect its existence,
rights, franchises, trade names and qualification to transact business in the State.
5.3 Compliance With Laws. Mortgagor shall promptly and faithfully comply with,
conform to and obey all Governmental Requirements that may be applicable to Mortgagor or to
the Mortgaged Property or to the use or manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of the Mortgaged Property, whether or not such
Governmental Requirement or rule or regulation shall necessitate structural changes or
improvements or interfere with the use or enjoyment of the Mortgaged Property.
5.4 Impositions. Mortgagor shall pay all Impositions on the Mortgaged Property and
all taxes levied or assessed upon this Mortgage, the Note, the Bond and the Obligations, or any
of them. In the event of the passage, after the date of this Mortgage, of any law (i) making it
illegal for the Mortgagor to pay the whole or any part of the Impositions, or charges or liens
herein required to be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and
all taxes levied or assessed upon this Mortgage, the Note, the Bond or the Obligations or the
interest in the Mortgaged Property represented by this Mortgage unlawful, or (iii) rendering the
covenants for the payment of the matters set forth in Subparts (i) and (ii) of this Subsection by
Mortgagor legally inoperative, the Mortgagor shall pay, upon demand, the entire unpaid
Obligations notwithstanding anything in the Note, this Mortgage, the Bond or the other Loan
Documents to the contrary.
Mortgagor shall pay all ad valorem taxes on the Mortgaged Property on or before the date
of delinquency, and shall deliver to Mortgagee tax receipts evidencing said payment on or before
the date of delinquency. Mortgagor shall also deliver to Mortgagee receipts evidencing the
payment of all other Impositions within thirty (30) days after same become due and payable or
before same shall become delinquent, whichever is sooner.
14
5.5 Insurance. Until the Obligations shall have been fully discharged by Mortgagor,
Mortgagor shall maintain, at Mortgagor's cost and expense, the following insurance coverages in
full force and effect at all times throughout the term of the Loan:
(a) Hazard Insurance. Mortgagor shall keep the Improvements and all Personal
Property which now or hereafter may constitute part of the Mortgaged Property insured at all
times against loss or damage by fire and other hazards included within the term "special causes
of loss," "all risk" or "extended coverage" and against such other hazards as Mortgagee may
require in the full insurable value thereof (or such lesser amount as Mortgagee may authorize in
writing). Such policy shall include coverage for loss of rents and business interruption, a
Replacement Cost and Agreed Amount/Stipulated Value Endorsement and a Sinkhole
Endorsement, if deemed necessary by Mortgagee.
(b) Liability Insurance. Mortgagor will obtain and keep in full force a "Broad
Form Comprehensive General Liability" insurance coverage for both Mortgagor and any
contractor performing services to the Mortgaged Property in the minimum coverage acceptable
to the Mortgagee.
(c) Flood Insurance. If at any time the Land or any portion thereof is located in
a "Flood Hazard Area" pursuant to the Flood Disaster Protection Act of 1973 or any successor
or supplemental act thereto, flood insurance in the maximum amount available or, if less, the full
insurable replacement value of the Mortgaged Property.
(d) Builder's Risk Insurance. During any construction activity, a "special causes
of loss" (formerly known as "all risk"), non-reporting, completed value builder's risk insurance
policy, which policy shall include Agreed Amount, Replacement Cost, Permit to Occupy and
VandalismlMalicious Mischief Endorsements.
(e) Other Insurance. Boiler and machinery insurance, worker's compensation
insurance, wind damage insurance, and other insurance coverages as Mortgagee may reasonably
require.
The policies of insurance shall (i) be from companies and in coverage amounts
reasonably acceptable to Mortgagee, (ii) contain a standard mortgagee clause identifying the
Mortgagee as "First Union National Bank, ISA ATIMA" in favor of Mortgagee naming
Mortgagee as a mortgagee and including a lender's loss payee clause in such policy, as applicable
(iii) not be terminable or modified without thirty (30) days' prior written notice to Mortgagee, and
(iv) be evidenced by original policies or certified copies of policies or evidence of insurance on
ACORD 27 (for builder's risk) and/or ACORD 255 (for general liability) form of certificate,
deposited with Mortgagee, as Mortgagee may elect, to be held by Mortgagee until the Obligations
shall have been fully paid and discharged. Mortgagor shall furnish Mortgagee satisfactory
evidence of payment of all premiums required and similar evidence of renewal or replacement
coverage not later than thirty (30) days prior to the date any coverage will expire.
15
All policies shall indicate that notices related to such insurance shall be sent to
Mortgagee at the following address or such other address as set forth in a notice from Mortgagee
to Mortgagor:
First Union National Bank
Insurance Department
P.O. Box 700308
Dallas, Texas 75370
5.6 Restoration Followin~ Casualty. (a) If all or any part of the Mortgaged Property
shall be damaged or destroyed by a casualty, Mortgagor shall immediately give written notice
thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered
(but not obligated or required) to make proof of loss and to settle, adjust or compromise any
claims for loss, damage or destruction under any policies of insurance required under this
Mortgage. All proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and
shall be applied first to the payment of all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and
second, at the option of Mortgagee, either to the payment of the Obligations whether or not due,
in such order as Mortgagee may elect, or to the restoration, repair, or replacement of the
Mortgaged Property. If Mortgagee elects to apply the insurance proceeds to the restoration, repair
or replacement of the Mortgaged Property, such proceeds shall be disbursed to Mortgagor as work
progresses pursuant to a construction and disbursing agreement in form and content reasonably
satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently,
regardless of whether there shall be sufficient insurance proceeds therefor, restore, repair and
rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty.
During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay,
perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the
insurance proceeds to the restoration, repair or replacement of the Mortgaged Property shall not
affect the lien of this Mortgage or affect or reduce the Obligations.
(b) If all or any of the Mortgaged Property shall be damaged or destroyed by
a casualty not covered by insurance under Section 5.5, or, if so covered, the insurer fails or
refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall
immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and
diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior to the casualty. During the period
of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe
and comply with all of the Obligations.
(c) If any work required to be performed under Subsections (a) or (b) above,
or both, shall involve an estimated expenditure of more than $10,000.00, no such work shall be
undertaken until plans and specifications therefor, prepared by an architect satisfactory to
Mortgagee, have been submitted to and approved by Mortgagee.
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5. 7 Condemnation. Mortgagor shall immediately notify Mortgagee upon obtaining any
knowledge of the institution of any proceedings for the condemnation of the Mortgaged Property
or any part thereof. If all, or any part of the Mortgaged Property with a value in excess of 50%
of the total value of the Mortgaged Property, shall be damaged or taken through condemnation
(which term 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),
Mortgagee at its option may declare all of the unpaid Obligations to be immediately due and
payable, and upon ten (10) days written notice from Mortgagee to Mortgagor all such Obligations
shall immediately become due and payable as fully and to the same effect as if such date were the
date originally specified for the fmal payment or maturity thereof. The Mortgagee shall be entitled
to all compensation, awards and other payments resulting from such condemnation and is hereby
authorized, at its option, to commence, appear in and prosecute, in its own or in Mortgagor's
name, any action or proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. All such compensation, awards, damages, claims, rights of action
and proceeds and the right thereto are hereby assigned by Mortgagor to Mortgagee and shall, be
applied first to the payment of all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in connection with any action or proceeding
under this Section 5.7, and second, at the option of Mortgagee, either to the payment of the
Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair
or alteration of the Mortgaged Property. If Mortgagee elects to apply the condemnation awards
to the restoration, repair or alteration of the Mortgaged Property, such awards shall be disbursed
to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and
content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and
diligently, regardless of whether there shall be sufficient condemnation awards therefor, restore,
repair and alter the Mortgaged Property in a manner satisfactory to Mortgagee. During the period
of restoration, repair and alteration, the Mortgagor shall continue to duly and promptly pay,
perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the
condemnation awards to the restoration, repair or alteration of the Mortgaged Property shall not
affect the lien of this Mortgage or affect or reduce the Obligations. If any restoration, repair or
alteration of the Mortgaged Property shall involve an estimated expenditure of more than
$10,000.00, same shall not be commenced until plans and specifications therefor, prepared by an
architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.
5.8 Tax and Insurance Escrow. Supplementing the provisions of Sections 5.4 and 5.5
hereof, and if required by Mortgagee, in the event of any default by Mortgagor in the payment of
any such Impositions, Mortgagor shall pay to Mortgagee on the payment date of installments of
interest as provided in the Note, together with and in addition to such installments of interest, an
installment of the Impositions and insurance premiums for such insurance as is required hereunder,
next due on the Mortgaged Property in an amount sufficient, as estimated by Mortgagee, to
accumulate the sum required to pay such Impositions and insurance, as applicable, thirty (30) days
prior to the due date thereof. Amounts held hereunder shall not be, nor be deemed to be, trust
funds, but may be commingled with the general funds of Mortgagee, and no interest shall be
payable with respect thereto. Upon demand of Mortgagee, Mortgagor shall deliver to Mortgagee,
within ten (10) days after such demand, such additional money as is necessary to make up any
deficiencies in the amounts necessary to enable Mortgagee to pay such Impositions and insurance
17
premiums when due. In case of an Event of Default, Mortgagee may apply any amount under this
Section remaining to Mortgagor's credit to the reduction of the Obligations, at such times and in
such manner as Mortgagee shall determine.
5.9 Repair. Mortgagor shall keep the Mortgaged Property in good order and condition
and make all necessary or appropriate repairs and replacements thereof and betterments and
improvements thereto, ordinary and extraordinary, foreseen and unforeseen, and use its best
efforts to prevent any act that might materially impair the value or usefulness of the Mortgaged
Property.
5.10 Inspection. Mortgagor shall permit Mortgagee and its agents to inspect the
Mortgaged Property at any time during normal business hours and at all other reasonable times
and after reasonable notice received by Mortgagor from Mortgagee.
5.11 Contest of Tax Assessments. Etc. After prior written notice to Mortgagee,
Mortgagor, at its own expense, may contest by appropriate legal proceedings, promptly initiated
and conducted in good faith and with due diligence, the amount, validity or application, in whole
or in part, of (a) any of the Governmental Requirements referred to in Section 5.3, or (b) any
Imposition; provided that: (i) in the case of any unpaid Imposition, such proceedings shall
suspend the collection thereof from Mortgagor and from the Mortgaged Property, (ii) the
Mortgaged Property or any part thereof will not be in danger of being sold, forfeited, terminated,
canceled or lost, (iii) the use of the Mortgaged Property or any part thereof for its present or
future intended purpose or purposes will not be interrupted, lost or terminated, (iv) Mortgagor
shall have set aside adequate reserves with respect thereto, and (v) Mortgagor shall have furnished
such security as may be required in the proceedings or as may be reasonably requested by
Mortgagee.
5.12 Expenses. Mortgagor shall pay all reasonable costs and expenses in connection
with the Loan and the preparation, execution, and delivery of the Bond Documents including, but
not limited to, reasonable fees and disbursements of counsel appointed by Mortgagee, and all
recording costs and expenses, documentary stamp tax and intangible tax, if lawfully required on
the entire amount of funds disbursed under the Loan, and other taxes, surveys, appraisals,
premiums for policies of title and other insurance and all other fees, costs and expenses, if any,
set forth in the Commitment Letter, the Loan Agreement, the Bond Purchase Agreement or
otherwise connected with the Loan transaction.
(a) reasonable attorneys' fees paid or incurred by Mortgagee pursuant to this
Mortgage including but not limited to those costs, charges, expenses and fees paid or incurred for
the payment of the Impositions, insurance, completion of construction, repairs, appraisal fees,
environmental assessment fees, or any other fees paid or incurred in any action, proceeding or
dispute of any kind in which Mortgagee is a party because of any Obligation not being duly and
promptly performed or being violated, including, but not limited to, the foreclosure or other
enforcement of this Mortgage, any condemnation or eminent domain action involving the
Mortgaged Property or any part thereof, any action to protect the security hereof, or any
proceeding in probate, reorganization, bankruptcy, arbitration, or forfeiture in rem. All such
18
amounts paid or incurred by Mortgagee, together with interest thereon at the Default Rate from
the date incurred by Mortgagee, shall be secured by this Mortgage and shall be due and payable
by Mortgagor immediately, whether or not there be notice or demand therefor.
(b) Any reference in this Mortgage to attorneys' or counsels' fees paid or
incurred by Mortgagee shall be deemed to include reasonable paralegals' fees and legal assistants'
fees. Moreover, wherever provision is made herein for payment of attorneys' or counsels' fees
or expenses incurred by the Mortgagee, said provision shall include, but not be limited to, such
fees or expenses incurred in any and all judicial, bankruptcy, reorganization, administrative, or
other proceedings, including appellate proceedings, whether such fees or expenses arise before
proceedings are commenced or after entry of a final judgment provided, that Mortgagee prevails
in any such action.
5.13 Preservation of A~reements. Mortgagor shall preserve and keep in full force and
effect all agreements, approvals, permits and licenses necessary for the development, use and
operation of the Mortgaged Property for its intended purpose or purposes.
5.14 Books and Records. The Mortgagor shall keep and maintain, at all times, full, true
and accurate books of accounts and records, adequate to correctly reflect the results of the
operation of the Mortgaged Property. The Mortgagee shall have the right to examine such books
and records and to make such copies or extracts therefrom as the Mortgagee shall require upon
reasonable notice from Mortgagee.
5.15 Estoppel Affidavits. Mortgagor, within ten (10) days after written request from
Mortgagee, shall furnish a written statement, duly acknowledged, setting forth the unpaid principal
balance of, and interest on, the Obligations secured by this Mortgage, and whether or not any
off-sets or defenses exist thereto.
5.16 Indemnification. Mortgagor shall at its own expense, and does hereby agree to,
protect, indemnify, reimburse, defend and hold harmless Mortgagee and its directors, officers,
agents, employees attorneys, successors and assigns from and against any and all liabilities
(including strict liability), losses, suits, proceedings, settlements, judgments, orders, penalties,
fines, liens, assessments, claims, demands, damages, injuries, obligations, costs, disbursements,
expenses or fees, of any kind or nature (including attorneys' fees and expenses paid or incurred
in connection therewith) arising out of or by reason of (i) an incorrect legal description of the
Land; (ii) any action, or inaction of Mortgagee in connection with the Note, this Mortgage, the
other Bond Documents or the Mortgaged Property; (iii) the construction of any Improvements;
(iv) the use and operation of the Mortgaged Property; (v) any acts or omissions of Mortgagor on
or about the Mortgaged Property regarding the contamination of air, soil, surface waters or
groundwaters over, on or under the Mortgaged Property; (vi) the presence, whether present or
future, of any Hazardous Material on, in or under the Mortgaged Property; or (vii) any present
or future events, conditions, circumstances, activities, practices, incidents, actions or plans
involving the manufacture, processing, distribution, use, transport, handling, treatment, storage,
disposal, cleanup, emission, discharge, seepage, spillage, leakage, release or threatened release
of any Hazardous Material on, in, under or from the Mortgaged Property, in connection with
19
Mortgagor's operations on the Mortgaged Property, or otherwise; all of the foregoing regardless
of whether within the control of Mortgagee.
The indemnifications of this Section 5.16 shall survive the full payment and performance
of the Obligations and the satisfaction of this Mortgage period until such time as all applicable
statutes of limitations during which a claim could be made against Mortgagee which would be the
subject of indemnification under this Section 5.16 shall have expired.
5.17 Further Assurances. Mortgagor, at its sole expense, upon the request of
Mortgagee, shall execute, acknowledge and deliver such further instruments and do such further
acts as may, in the reasonable opinion of the Mortgagee, be necessary, desirable, or proper to
carry out more effectively the purpose of this Mortgage and to subject to the lien hereof any
property intended by the terms hereof to be covered hereby, including, without limitation, any
proceeds, renewals, additions, substitutions, replacements, products, betterments, accessions and
appurtenances thereto and thereof.
5.18 Junior Mort~a~e(s) and Riihts ofMort~aiee. (a) Mortgagor shall, with respect
to any Junior Mortgage, (i) promptly observe and perform all of the covenants and conditions
contained in the Junior Mortgage, (ii) duly and promptly make all payments required by the terms
of the Junior Mortgage, (iii) promptly notify Mortgagee in writing upon receipt by Mortgagor of
any notice that Mortgagor is in default under the Junior Mortgage or that an event has occurred
which with due notice or the lapse of time, or both, would constitute a default under the Junior
Mortgage, and to promptly cause a copy of each such notice given by the holder thereof to be
delivered to Mortgagee, and (iv) from time to time upon demand of Mortgagee submit evidence
to Mortgagee that Mortgagor has maintained and is maintaining the Junior Mortgage in good
standing. Upon receipt by Mortgagee of any such aforesaid notice, Mortgagee may rely thereon
even though the existence of such default or the nature thereof may be questioned or denied by
Mortgagor or by any party on behalf of Mortgagor.
(b) If Mortgagor fails to make any payment required under any Junior Mortgage
as and when due, or fails to perform any material condition, covenant, or term of the Junior
Mortgage, then Mortgagee may on behalf of Mortgagor, but without obligation to do so, and with
reasonable notice to and demand upon Mortgagor, and without releasing Mortgagor from any
Obligation and without waiving any Event of Default hereunder, take any action Mortgagee deems
reasonably necessary or desirable to prevent or cure any such default by Mortgagor, including,
but without limitation, the right to pay any and all payments of principal and interest, insurance
premiums, taxes and assessments and other sums due or to become due under the Junior
Mortgage. Mortgagor hereby expressly grants to Mortgagee and agrees that Mortgagee and its
agents shall have the absolute and immediate right to enter upon the Land and the Improvements
or any part thereof to such extent and as often as Mortgagee in its sole discretion deems reasonably
necessary or desirable in order to prevent or cure any such default by Mortgagor. All reasonable
payments and all reasonable costs and reasonable expenses incurred by Mortgagee in connection
with any such prevention or cure (including, without limitation, reasonable attorneys' fees and
expenses), together with interest thereon at the Default Rate from the date incurred by Mortgagee,
20
shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately,
whether or not there be notice, demand, an attempt to collect same, or suit pending.
(c) Nothing in this Section 5.18 shall in any manner be construed as consent by
Mortgagee to the further encumbering or mortgaging of the Mortgaged Property.
5.19 Financini Statements. Mortgagor shall execute and deliver to Mortgagee, in form
and substance satisfactory to Mortgagee, such financing statements, continuation statements, and
such further assurances as Mortgagee may from time to time consider reasonably necessary to
create, perfect, preserve and maintain in full force and effect Mortgagee's lien upon the Fixtures,
Leases, Rents and Personal Property; and, Mortgagee, at the expense of Mortgagor, may cause
such statements and assurances to be recorded and rerecorded, filed and re-filed, in the name of
Mortgagor, and Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an interest, with full power of
substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option
of said attorney-in-fact, to execute and file any and all financing statements.
5.20 Withholdin~ Taxes. (a) If under any applicable law or regulation or the
interpretation thereof by any Governmental Authority charged with the administration thereof,
Mortgagor shall be required to make any withholding or deduction from any payment of the
Obligations (whether of principal, interest or otherwise) to be made by or on behalf of Mortgagor
to Mortgagee for or in respect of any present or future taxes, levies, imposts, duties, charges, or
fees of any nature (excepting only Mortgagee's income taxes of the United States of America and
its political subdivisions), the amount due to Mortgagee from Mortgagor in respect of such
payment shall be increased to the extent necessary to ensure that after making such withholding
or deduction and any withholdings or deductions required to be made in respect to any such
increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have
received had no such withholding or deduction been required to be made. In the event of any such
withholding or deduction, Mortgagor shall deliver to Mortgagee forthwith after receipt thereof the
official receipt or other official documentation evidencing the payment of the amount so withheld
or deducted.
(b) If Mortgagor shall fail to make any withholding or deduction so required
to be made, Mortgagee reserves the right to make payment thereof to the appropriate
Governmental Authority. If Mortgagee makes such payment under any applicable law or
regulation or if as a result of the interpretation thereof by any Governmental Authority charged
with the administration thereof in respect of any such payment, whether of principal, interest or
otherwise made or to be made by Mortgagor, Mortgagee shall be required to pay any tax, levy,
impost, duty, charge or fee of any nature (excepting only Mortgagee's income taxes of the United
States of America and its political subdivisions), Mortgagor shall and does hereby indemnify
Mortgagee against and shall forthwith upon demand of Mortgagee pay to Mortgagee the amount
of such payment, together with any interest, penalties, and expenses in connection therewith, and
interest thereon at the Default Rate; and in the event any of the aforesaid amounts, interest,
penalties or expenses shall be subject to withholding or deduction, the amount thereof shall be
increased to the extent necessary to ensure that after making such withholding or deduction and
21
any withholdings or deductions in respect of any such increase, Mortgagee shall receive an amount
equal to the amount which Mortgagee would have received had no such withholding or deduction
been required to be made.
(c) Any increased amount required to be paid by Mortgagor in accordance with
the provisions of this Section 5.20 shall have the same character as the amount in respect of which
such increased amount is determined, but shall not (i) if characterized as principal, be applied in
reduction of the principal amount outstanding under the Obligations or (ii) if characterized as
interest, be applied in reduction of accrued, unpaid interest under the Obligations.
5.21 Hazardous Material. (a) Mortgagor shall immediately notify Mortgagee orally and
in writing (i) if Mortgagor becomes aware of the presence of any Hazardous Material or other
environmental problem or liability on, in, under, released from or associated with the Mortgaged
Property, or (ii) if an Environmental Claim is then existing with respect to the Mortgaged
Property. Mortgagor shall forthwith transmit to Mortgagee all information it has received with
respect to the Environmental Claim.
(b) Mortgagor shall, at its own cost and expense, take any action necessary or
advisable for the cleanup of any Hazardous Material on, in, under , released from or associated
with the Mortgaged Property, including any removal, containment or remedial actions in
accordance with all applicable Environmental Laws, and shall payor cause to be paid all cleanup,
administrative, enforcement and other costs, expenses or fines which may be asserted against
Mortgagor, Mortgagee, the Mortgaged Property, or any other Person in connection therewith.
(c) Mortgagee shall have the right but not the obligation, and without any
limitation of Mortgagee's other rights under this Mortgage, after failure by Mortgage to enter onto
the Mortgaged Property or to take any action as it deems necessary or advisable to cleanup,
remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Material or any
Environmental Claim following receipt of any notice from any Person or Governmental Authority
asserting the existence of any Hazardous Material or an Environmental Claim pertaining to the
Mortgaged Property or any part thereof which, if true, could result in an order, suit or other action
against Mortgagor or Mortgagee which, in the reasonable opinion of Mortgagee, could jeopardize
Mortgagee's 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.
(d) Mortgagor shall, within thirty (30) days of Mortgagee's written request,
cause to be prepared an environmental assessment of the Mortgaged Property (but only if
Mortgagee reasonably suspects that grounds exist for an Environmental Claim) and, if required
by Mortgagee, an environmental assessment (as hereinafter defined) of the Mortgaged Property
including Hazardous Material waste management practices and Hazardous Material waste disposal
sites thereon. As used herein, the term "Environmental Assessment" means a report (including
all drafts thereof) of an environmental assessment of the Mortgaged Property of such scope
(including but not limited to the taking of soil borings and air and groundwater samples and other
above and below ground testing) as Mortgagee may reasonably request, by a consulting firm
22
acceptable to Mortgagee, made in accordance with Mortgagee's established guidelines and at
Mortgagor's sole cost and expense. Should Mortgagor fail to provide such Environmental
Assessment within said thirty (30) day period, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform and prepare same. 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.
5.22 Financial Reports.. Etc. Mortgagor shall, at Mortgagor's sole cost and expense,
provide Mortgagee with any financial statements, financial reports, appraisals or other
documentation with respect to Mortgagor or the Mortgaged Property which may be required from
time to time by any Governmental Authority having regulatory authority over Mortgagee. Such
information shall be provided by Mortgagor within thirty (30) days after written request from
Mortgagee.
5.23 Annual Appraisal. Mortgagee may obtain at Mortgagor's expense an appraisal of
any part of the Mortgaged Property prepared in accordance with written instructions from
Mortgagee by a third-party appraiser engaged directly by Mortgagee. Each such appraiser and
appraisal shall be satisfactory to Mortgagee (including satisfaction of applicable regulatory
requirements). The cost of each such appraisal shall be due and payable by Mortgagor on demand
and shall be secured by the Bond Documents.
5.24 Reappraisal of Mortiai:ed Property. Mortgagor acknowledges that Mortgagee was
induced to enter into the subject Loan transaction based upon a specific loan-to-value ratio (the
"Original Loan-to-Value Ratio"). The Original Loan-to-Value Ratio was based upon the appraised
value (the "Original Appraised Value") of the Mortgaged Property set forth in the appraisal
Mortgagor submitted to Mortgagee prior to the closing of the subject Loan transaction. If any
updated appraisal received by Mortgagee pursuant to Section 5.23 above reflects that the appraised
value of the Mortgaged Property has decreased from the Original Appraised Value and if such
decrease results in a loan-to-value ratio which is higher than the Original Loan-to-Value Ratio,
Mortgagor shall within ten (10) days of Mortgagee's written request make a principal payment (the
"Prepayment") under the Note in an amount sufficient to maintain the Original Loan-to-Value
Ratio. Such Prepayment shall not entitle Mortgagor to a release of any of the Mortgaged
Property.
5.25 Performance of Bond Documents. Mortgagor shall duly and punctually perform
all covenants, terms and agreements expressed as binding upon it under all of the Bond
Documents.
5.26 Performance of Other A~eements. Mortgagor shall duly and punctually perform
all covenants, terms and agreements expressed as binding upon it under any Permitted Title
Exception, or any other agreement of any nature whatsoever binding upon it with respect to the
Mortgaged Property.
23
5.27 Interest Rate Protection A~reements. Mortgagor shall duly and punctually perform
all covenants, terms and agreements expressed as binding upon it under any Interest Rate
Protection Agreements. Mortgagor acknowledges that its obligations under any Interest Rate
Protection Agreement are obligations secured by this Mortgage. Further, Mortgagor
acknowledges and agrees that the occurrence of any event of default under any Interest Rate
Protection Agreement shall be a default hereunder, and vice versa.
5.28 Bond Purchase A~reement. The Loan evidenced by the Note and secured by this
Mortgage is to be disbursed in accordance with the terms and provisions of the Bond Purchase
Agreement. The Note, this Mortgage, the Bond Purchase Agreement and the Loan Agreement
shall always be taken and read together as constituting parts of one transaction. All sums
disbursed pursuant to the terms of the Loan Agreement shall be secured by this Mortgage with the
same priority as if advanced on the date hereof. Mortgagor shall fully, duly and promptly
discharge each and every of its agreements contained in the Loan Agreement and comply with,
abide by and perform all of the provisions and conditions thereof.
ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations. Etc. Mortgagor shall not use the Mortgaged Property or allow the
same to be used or occupied for any unlawful purpose or in violation of any Governmental
Requirement or restrictive covenant covering, affecting or applying to the ownership, use or
occupancy thereof, commit or permit or suffer any act to be done or any condition to exist on the
Mortgaged Property or any article to be brought thereon that may be dangerous, or that may in
any way increase any ordinary fIre or other hazard, unless safeguarded as required by law, or that
may, in law, constitute a nuisance, public or private.
6.2 Care of the Mortiaied Property. (i) Mortgagor shall not commit or permit any
waste, impairment, or deterioration of the Mortgaged Property, or (except for the Project or as
may be provided for in the Loan Agreement) perform any clearing, grading, filling or excavation
of the Mortgaged Property, or make or permit to be made to the Mortgaged Property any
alterations or additions that would have the effect of materially diminishing the value thereof (in
Mortgagee's sole opinion) or take or permit any action that will in any way increase any ordinary
fire or other hazard arising out of the construction or operation thereof.
(ii) Mortgagor shall not, without the prior written consent of Mortgagee,
remove, demolish or substantially alter, or permit the removal, demolishment or substantial
alteration of, any Improvements on the Land. In the event such consent is given and if any work
to be performed shall involve an estimated expenditure of more than $10,000.00, no such work
shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory
to Mortgagee, shall have been submitted to and approved by Mortgagee.
(iii) Mortgagor shall not permit any of the Fixtures or Personal Property to be
demolished or to be removed from the Land, without the prior written consent of Mortgagee. In
24
the event such consent is given, the Mortgagee may require that said Fixture or Personal Property
be replaced by an article of equal suitability and value, owned by Mortgagor free and clear of any
vendor's lien, chattel mortgage, or security interest of any kind, except such as may be approved
in writing by Mortgagee, and that such replacement article be encumbered by the lien of this
Mortgage. Notwithstanding the foregoing, the Mortgagor may remove or demolish any Fixture
or Personal Property without fIrst obtaining the Mortgagee's prior written consent provided (i) the
value of such article does not exceed in value at the time of disposition thereof $5,000.00 for any
single item, or a total of $10,000.00 in anyone year for all such items and (ii) that said article is
replaced and subject to the lien of this Mortgage as aforesaid.
6.3 Other Liens and Mortiaies. (a) Mortgagor shall not, without the prior written
consent of Mortgagee, create or permit to be created or to remain, any mortgage, pledge,
construction lien or other lien, conditional sale or other title retention agreement, encumbrance,
claim, or charge on (whether prior or subordinate to the lien of this Mortgage or the other Bond
Documents) the Mortgaged Property or income therefrom, other than this Mortgage, the other
Bond Documents and the Permitted Title Exceptions. Any transaction prohibited under this
Section shall be null and void.
(b) Mortgagor shall not, without the prior written consent of Mortgagee, (i)
enter into any agreement either oral or in writing, whereby any permitted Junior Mortgage is
modified or amended in any manner whatsoever, (ii) permit the release of any guarantor or
modification of any guaranty affecting any permitted Junior Mortgage, or (iii) incur any additional
indebtedness secured thereby.
(c) Mortgagor shall not directly or indirectly, take, acquire, or permit to be
taken or acquired by any other party, any interest whatsoever in any permitted Junior Mortgage
without the prior written consent of Mortgagee.
6.4 Transfer of Mort~aied Property. Except as may otherwise be expressly permitted
in the Bond Documents executed in connection with this Mortgage, Mortgagor shall not sell,
convey, or transfer or permit to be sold, conveyed or transferred any interest in the Mortgaged
Property or any part thereof. A contract to deed or agreement for deed, or an assignment, pledge,
or encumbrance of a beneficial interest in any land trust, or a lease for all or substantially all of
the Land or Improvements shall constitute a transfer prohibited by the provisions of this Section
and shall be null and void.
6.5 Mortiaior's Article of Incoq>oration. Mortgagor, if a corporation shall not,
without the prior written consent of Mortgagee, materially amend or modify its articles or
certificate of incorporation or bylaws.
6.6 Transfer of Other Assets. Mortgagor shall not, directly or indirectly, sell, convey,
or transfer or permit to be sold, conveyed, or transferred any of its assets to any Person to which
Mortgagor is related or connected. The term "assets" as used in this Section does not include the
Mortgaged Property, the sale, conveyance, or transfer of which is prohibited as provided in
Section 6.4 hereof.
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6.7 Environmental Contamination/Hazardous Material. Mortgagor and the Mortgaged
Property shall at all times remain in full compliance with all Environmental Laws. Mortgagor
shall not, nor permit any other person to, except in compliance with all laws and regulations,
manufacture, process, distribute, use, transport, handle, treat, store, dispose, emit, discharge,
leak, spill or release any Hazardous Material on, in, under or from the Mortgaged Property.
ARTICLE VII
EVENTS OF DEFAULT
7.1 Events of Default. An "Event of Default", as used in this Mortgage, shall occur
at any time or from time to time:
(i) Failure to Pay. If any Obligation or any installment thereof is not paid as and
when due and payable;
(ii) Failure to Perform. If any Obligation [other than an Obligation requiring the
payment of money or the occurrence of an event described in Subsections 7.1 (iii) through (xiii),
inclusive, below] is not duly and promptly performed or is violated and such non-performance or
violation is not curable, or if curable continues for a period of thirty (30) days after written notice
thereof from Mortgagee to Mortgagor, provided, however, if such non-performance or violation
may not reasonably be cured within such thirty (30) day period, an Event of Default shall not be
deemed to have occurred so long as same shall be diligently and continuously endeavored to be
cured;
(iii) False Representation. If any representation or warranty made in any Bond
Document by or on behalf of Mortgagor is at any time materially false, misleading, or breached;
(iv) Judgment. If a final judgment for the payment of money is rendered against
Mortgagor, and the same remains unsatisfied except for such period of time as execution on the
judgment is effectively stayed;
(v) Voluntary Bankruptcy, Etc. If Mortgagor (i) is voluntarily adjudicated a
bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver or trustee for itself
or for all or any part of its property, (iii) files a petition seeking relief, including reorganization,
arrangement or similar relief, under the present Bankruptcy Code or other similar present or future
applicable laws of the United States or any state or any other competent jurisdiction, (iv) makes
a general assignment for the benefit of creditors or (v) admits in writing its inability to pay its
debts as they mature;
(vi) Involuntary Bankruptcy, Etc. If a receiver or trustee is appointed for
Mortgagor or for all or any part of their respective properties without their respective consents and
such appointment is not vacated within sixty (60) days, or if a petition is filed against Mortgagor
seeking relief, including reorganization, arrangement or similar relief, under the present
Bankruptcy Code or other similar present or future applicable laws of the United States or any
26
state or other competent jurisdiction, and such petition is not dismissed within sixty (60) days after
the filing thereof;
(vii) Dissolution. If Mortgagor voluntarily or involuntarily dissolves or
liquidates;
(viii) Financial Condition. If a material adverse change has occurred, at any time
or times subsequent to the date hereof, in the [mancial condition, results of operations, operations,
business, properties, or prospects of Mortgagor, such as, by way of illustration and not limitation,
a downturn in financial performance, the loss of key customers, the loss of critical licenses,
management exodus, or a labor strike;
(ix) Default Under Loan Documents. If any default occurs under any of the other
Bond Documents or if any obligation of Mortgagor under any of the other Bond Documents is not
fully performed;
(x) Foreclosure of Other Liens. If the holder of any mortgage or other lien on the
Mortgaged Property, whether a Permitted Title Exception or not (without hereby implying
Mortgagee's consent to any such mortgage or other lien) institutes foreclosure or other
proceedings for the enforcement of any of its remedies thereunder;
(xi) Default Under Junior Mortgage. If any default or any event of default
occurs under any permitted Junior Mortgage, whether or not foreclosure or other proceedings have
been instituted thereunder;
(xii) Default Under Interest Rate Protection Agreement. If any default or any event
of default occurs under any Interest Rate Protection Agreement of if Mortgagor fails to pay any
sum due under any Interest Rate Protection Agreement when due.
ARTICLE VIII
RIGHTS AND REMEDIES
8.1 Remedies. If an Event of Default shall have occurred, and after the giving of any
required notice and after the expiration of any available cure period, Mortgagee may, at its option,
exercise any, some or all of the following remedies, concurrently or consecutively.
(i) Acceleration. Mortgagee may declare all of the unpaid Obligations, together
with all accrued interest thereon, to be due and payable without notice or demand which are
hereby expressly waived, and upon such declaration all such Obligations shall immediately become
due and payable as fully and to the same effect as if the date of such declaration were the date
originally specified for the full payment or maturity thereof.
(ii) Mortgagee's Right to Enter and Take Possession, Operate and Apply Income.
Mortgagee may demand that Mortgagor surrender the actual possession of the Mortgaged Property
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and upon such demand, to the extent permitted by applicable law, Mortgagor shall forthwith
surrender same to Mortgagee and, to the extent permitted by law, Mortgagee itself, or by such
officers or agents as it may appoint, may enter and take possession of all of the Mortgaged
Property and may exclude Mortgagor and its agents and employees wholly therefrom.
(a) If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a
judgment or order conferring on Mortgagee the right to immediate possession or requiring the
Mortgagor to deliver immediate possession to Mortgagee, to the entry of which judgment or
decree the Mortgagor hereby specifically consents.
(b) Mortgagee may from time to time: (A) continue and complete
construction of, hold, store, use, operate, manage and control the Mortgaged Property and conduct
the business thereof; (B) make all reasonably necessary maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon and purchase or
otherwise acquire additional Fixtures and Personal Property; (C) insure or keep the Mortgaged
Property insured; (D) exercise all the rights and powers of the Mortgagor in its name or otherwise
with respect to the same; and (E) enter into agreements with others (including, without limitation,
new Leases or amendments, extensions, or cancellations to existing Leases) all as Mortgagee from
time to time may determine in its sole discretion. Mortgagor hereby constitutes and irrevocably
appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to do any and all acts and execute any and
all agreements that Mortgagee may deem necessary or proper to implement and perform any and
all of the foregoing.
(iii) The Mortgagee may, with or without taking possession of the Mortgaged
Property as hereinabove provided, collect and receive all the Rents therefrom, including those past
due as well as those accruing thereafter, and shall apply the monies so received first, to the
payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Mortgagee and its agents in connection with the collection of same, whether
or not in possession of the Mortgaged Property, and second, in such order as Mortgagee may
elect, to the payment of the Obligations.
(iv) Proceedings To Recover Sums Due. (a) If any installment or part of any
Obligation shall fail to be paid when due, Mortgagee shall be entitled to sue for and to recover
judgment against the Mortgagor for the amount so due and unpaid together with all costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by
Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate
from the date incurred by Mortgagee. Any such judgment against the Mortgagor shall bear
interest at the Default Rate. All such costs and expenses shall be secured by this Mortgage and
shall be due and payable by Mortgagor immediately.
(b) If Mortgagor shall fail to pay upon the Mortgagee's demand, after
acceleration as provided in Subsection 8.1(i), all of the unpaid Obligations, together with all
28
accrued interest thereon, Mortgagee shall be entitled to sue for and to recover judgment against
the Mortgagor for the entire amount so due and unpaid together with all costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest thereon at the Default Rate from the date
incurred by Mortgagee. Any such judgment against the Mortgagor shall bear interest at the
Default Rate. All such costs and expenses shall be secured by this Mortgage and shall be payable
by Mortgagor immediately. Mortgagee's right under this Subsection (b) may be exercised by
Mortgagee either before, after or during the pendency of any proceedings for the enforcement of
this Mortgage, including appellate proceedings.
(c) No recovery of any judgment as provided in Subsections (a) and (b)
above and no attachment or levy of any execution upon any of the Mortgaged Property or any
other property shall in any way affect the lien of this Mortgage upon the Mortgaged Property or
any part thereof, or any lien, rights, powers, or remedies of Mortgagee hereunder, but such lien,
rights, powers and remedies shall continue unimpaired as before.
(v) Foreclosure. Mortgagee may institute proceedings for the partial or complete
foreclosure of this Mortgage and Mortgagee may, pursuant to any final judgment of foreclosure,
sell the Mortgaged Property as an entirety or in separate lots, units, or parcels.
(a) In case of a foreclosure sale of all or any part of the Mortgaged
Property, the proceeds of sale shall be applied in accordance with Section 8.8 hereof, and the
Mortgagee shall be entitled to seek a deficiency judgment against the Mortgagor to enforce
payment of any and all Obligations then remaining due and unpaid, together with interest thereon,
and to recover a judgment against the Mortgagor therefor, which judgment shall bear interest at
the Maximum Rate.
(b) The Mortgagee is authorized to foreclose this Mortgage subject to
the rights of any tenants of the Mortgaged Property, or Mortgagee may elect which tenants
Mortgagee desires to name as parties defendant in such foreclosure and failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not
be, nor be asserted by the Mortgagor to be, a defense to any proceedings instituted by the
Mortgagee to collect the unpaid Obligations or to collect any deficiency remaining unpaid after
the foreclosure sale of the Mortgaged Property.
(vi) Receiver. Mortgagee may apply to any court of competent jurisdiction to have
a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the
Rents therefrom and apply the same as the court may direct, such receiver to have all of the rights
and powers permitted under the laws of the State. The right of the appointment of such receiver
shall be a matter of strict right without regard to the value or the occupancy of the Mortgaged
Property or the solvency or insolvency of Mortgagor. The expenses, including receiver's fees,
attorneys' fees, costs and agent's commission incurred pursuant to the powers herein contained,
together with interest thereon at the Default Rate, shall be secured hereby and shall be due and
payable by Mortgagor immediately without notice or demand. Notwithstanding the appointment
of any receiver or other custodian, Mortgagee shall be entitled as pledgee to the possession and
29
control of any cash or deposits at the time held by, payable, or deliverable under the terms of this
Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the unpaid
Obligations against any such cash or deposits in such order as Mortgagee may elect.
(vii) Remedies as to Personal Property. Mortgagee may exercise any or all of its
rights and remedies under the Uniform Commercial Code-Secured Transactions as adopted by the
State or other applicable law as well as all other rights and remedies possessed by Mortgagee, all
of which shall be cumulative. To the extent permitted by law, Mortgagee is hereby authorized and
empowered to enter the Mortgaged Property or other place where the Personal Property may be
located without legal process, and to take possession of the Personal Property without notice or
demand, which hereby are waived to the maximum extent permitted by the laws of the State.
Upon demand by Mortgagee, Mortgagor shall make the Personal Property available to Mortgagee
at a place reasonably convenient to Mortgagee. Mortgagee may sell at one or more public or
private sales and for such price as Mortgagee may deem commercially reasonable, any and all of
the Personal Property secured by this Mortgage, and any other security or property held by
Mortgagee and Mortgagee may be the purchaser of any or all of the Personal Property.
(viii) Other. Mortgagee may institute and maintain any suits and proceedings as
the Mortgagee may deem advisable (i) to prevent any impairment of the Mortgaged Property by
any acts which may be unlawful or in violation of this Mortgage, (ii) to preserve or protect its
interest in the Mortgaged Property, and (iii) to restrain the enforcement of or compliance with any
Governmental Requirement that may be unconstitutional or otherwise invalid, if the enforcement
of or compliance with such Governmental Requirement might impair the security hereunder or be
prejudicial to the Mortgagee's interest.
8.2 Remedies Cumulative and Concurrent. No right, power or remedy of Mortgagee
as provided in the Note, this Mortgage, the Loan Agreement, or the other Bond Documents is
intended to be exclusive of any other right, power, or remedy of Mortgagee, but each and every
such right, power and remedy shall be cumulative and concurrent and in addition to any other
right, power or remedy available to Mortgagee now or hereafter existing at law or in equity and
may be pursued separately, successively or together against Mortgagor, or any endorser,
co-maker, surety or guarantor of the Obligations, or the Mortgaged Property or any part thereof,
or anyone or more of them, at the sole discretion of Mortgagee. The failure of Mortgagee to
exercise any such right, power or remedy shall in no event be construed as a waiver or release
thereof.
8.3 Waiver. Delay or Omission. No waiver of any Event of Default hereunder shall
extend to or affect any subsequent or any other Event of Default then existing, or impair any
rights, powers or remedies consequent thereon, and no delay or omission of Mortgagee to exercise
any right, power or remedy shall be construed to waive any such Event of Default or to constitute
acquiescence therein.
8.4 Credit of Mort~a~ee. To the maximum extent permitted by the laws of the State,
upon any sale made under or by virtue of this Article, Mortgagee may bid for and acquire the
Mortgaged Property, or any part thereof, and in lieu of paying cash therefor may apply to the
30
purchase price, any portion of or all of the unpaid Obligations in such order as Mortgagee may
elect.
8.5 Sale. Any sale or sales made under or by virtue of this Article shall operate to
divest all the estate, right, title, interest, claim and demand whatsoever at law or in equity, of the
Mortgagor and all Persons, except tenants pursuant to Leases approved by Mortgagee, claiming
by, through or under Mortgagor in and to the properties and rights so sold, whether sold to
Mortgagee or to others.
8.6 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition, seizure of the Mortgaged Property by any
Governmental Authority, or other judicial proceedings affecting the Mortgagor, any endorser,
co-maker, surety, or guarantor of the Obligations, or any of their respective properties, the
Mortgagee, to the extent permitted by law, shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim allowed in such proceedings
for the entire unpaid Obligations at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable after such date.
8.7 Waiver of Redemption. Notice. Marshallin~. Etc. Mortgagor hereby waives and
releases, for itself and anyone claiming through, by, or under it, to the maximum extent permitted
by the laws of the State of Florida:
(a) all benefit that might accrue to Mortgagor by virtue of any present or future
law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof,
from attachment, levy or sale on execution, or providing for any appraisement, valuation, stay of
execution, redemption or extension of time for payment,
(b) unless specifically required herein, all notices of default, or Mortgagee's
actual exercise of any option or remedy under the Bond Documents, or otherwise, and
(c) any right to have the Mortgaged Property marshalled.
8.8 Application of Proceeds. The proceeds of any sale of all or any portion of the
Mortgaged Property shall be applied by Mortgagee first, to the payment of receiver's fees and
expenses, if any, and to the payment of all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Mortgagee, together with interest thereon at
the Default Rate from the date so incurred, in connection with any entry, action or proceeding
under this Article and, second, in such order as Mortgagee may elect, to the payment of the
Obligations. Mortgagor shall be and remain liable to Mortgagee for any difference between the
net proceeds of sale and the amount of the Obligations until all of the Obligations have been paid
in full.
8.9 Discontinuance of Proceedin~s. If Mortgagee shall have proceeded to enforce any
right under any Bond Document and such proceedings shall have been discontinued or abandoned
for any reason, then except as may be provided in any written agreement between Mortgagor and
31
Mortgagee providing for the discontinuance or abandonment of such proceedings, Mortgagor and
Mortgagee shall be restored to their former positions and the rights, remedies and powers of
Mortgagee shall continue as if no such proceedings had been instituted.
8.10 Mort~a~ee 's Actions. Mortgagee may, at any time without notice to any Person
and without consideration, do or refrain from doing any or all of the following actions, and neither
the Mortgagor, any endorser, co-maker, surety or guarantor of the Obligations, nor any other
Person (hereinafter in this Section 8.10 collectively referred to as the "Obligor") now or hereafter
liable for the payment and performance of the Obligations shall be relieved from the payment and
performance thereof, unless specifically released in writing by Mortgagee: (a) renew, extend or
modify the terms of the Note, this Mortgage and the other Bond Documents, or any of them; (b)
forbear or extend the time for the payment or performance of any or all of the Obligations; (c)
apply payments by any Obligor to the reduction of the unpaid Obligations in such manner, in such
amounts, and at such times and in such order and priority as Mortgagee may see fit; (d) release
any Obligor; (e) substitute or release in whole or in part the Mortgaged Property or any other
collateral or any portion thereof now or hereafter held as security for the Obligations without
affecting, disturbing or impairing in any manner whatsoever the validity and priority of the lien
of this Mortgage upon the Mortgaged Property which is not released or substituted, or the validity
and priority of any security interest of the Mortgagee in such other collateral which is not released
or substituted; (f) subordinate the lien of this Mortgage or the lien of any other security interest
in any other collateral now or hereafter held as security for the Obligations; (g) join in the
execution of a plat or replat of the Land; (h) join in and consent to the filing of a declaration of
condominium or declaration of restrictive covenants regarding all or any part of the Land; (i)
consent to the granting of any easement on the Land; and (j) generally deal with any Obligor or
any other party as Mortgagee may see fit.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Reilllation of Mortia~ee. Mortgagee is subject to various
Governmental Authorities and the laws, rules and regulations enacted, adopted and promulgated
by them. To the extent that Mortgagee's authority to perform its obligations (if any) under this
Mortgage, now or hereafter, may be limited or regulated by such Governmental Authorities,
Mortgagee is hereby excused from such performance.
9.2 Mort2aiee's Failure to Perform. If Mortgagee fails to perform its obligations (if
any) under this Mortgage (except to the extent excused therefrom as provided in Section 9.1
above), Mortgagor shall notify Mortgagee in writing (the "Notice") within thirty (30) days after
Mortgagor's obtaining knowledge of such failure. Each such Notice shall describe in detail the
act or event constituting the non-performance by Mortgagee. Mortgagee shall have thirty (30) days
after its receipt of the Notice to cure any such failure to perform, unless such cure can not be
accomplished using reasonable efforts within said thirty (30) day period, in which case Mortgagee
shall have such additional time as may be necessary, using reasonable efforts, to cure such
non-performance (the "Mortgagee Cure Period").
32
9.3 Mortiaior's Ri~hts and Remedies. The giving of the Notice and the expiration of
the Mortgagee Cure Period shall be conditions precedent to any right of the Mortgagor to bring
an action against Mortgagee.
ARTICLE X
MISCELLANEOUS
10.1 Maximum Rate of Interest. Nothing contained herein, in the Note, or in any other
Bond Document, or the Commitment, or in any instrument or transaction related thereto, shall be
construed or so operate as to require the Mortgagor or any person liable for the payment of the
Loan made pursuant to the Note, or liable for the payment of any Obligations, to pay interest, or
any charge in the nature of interest, in an amount or at a rate which exceeds the maximum rate of
interest allowed by applicable law, as amended from time to time. Should any interest or other
charges in the nature of interest received by Mortgagee or paid by the Mortgagor or any parties
liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any
Obligations, exceed the maximum rate of interest allowed by applicable law, as amended from
time to time, then such excess sum shall be credited against the principal balance of the Note or
the balance of the other Obligations, as applicable, unless the Mortgagor or such other parties
liable for such payments, as applicable, shall notify the Mortgagee, in writing, that the Mortgagor
or such other party elects to have such excess sum returned to it forthwith, it being the intent of
the parties hereto that under no circumstances shall the Mortgagor or any parties liable for any of
the aforesaid payments be required to pay interest in excess of the maximum rate of interest
allowed by applicable law, as amended from time to time. The Mortgagee may, in determining
the maximum rate of interest allowed under applicable law, as amended from time to time, take
advantage of any state or federal law , rule or regulation in effect from time to time which may
govern the maximum rate of interest which may be reserved, charged or taken.
10.2 Continuin~ A~reement. This Mortgage and all of the Mortgagor's representations,
warranties and covenants herein, Mortgagee's security interest in the Mortgaged Property and all
of the rights, powers and remedies of Mortgagee hereunder shall continue in full force and effect
until all of the Obligations have been paid and performed in full; until Mortgagee has no further
obligation to make any advances under the Loan; and until Mortgagee, upon the request of the
Mortgagor, has executed a satisfaction of mortgage. Furthermore, if for any reason no
Obligations are owing, notwithstanding such occurrence, this Mortgage shall remain valid and in
full force and effect as to subsequent Obligations, so long as Mortgagee has not executed a
satisfaction of mortgage; provided, however, that the indemnifications set forth in Article V of this
Mortgage shall survive the satisfaction of this Mortgage.
10.3 Survival of Warranties and Covenants. The warranties, representations, covenants
and agreements set forth in this Mortgage shall survive the making of the Loan and the execution
and delivery of the Note, and shall continue in full force and effect until all of the Obligations shall
have been paid and performed in full.
33
10.4 No Representation By Mortiaiee. By accepting or approving anything required
to be observed, performed or fulfilled, or to be given to Mortgagee, pursuant to this Mortgage,
or the other Bond Documents, Mortgagee shall not be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty
or representation with respect thereto by Mortgagee.
10.5 Notice. All notices, demands, requests and other communications required under
this Mortgage may be given by telex, telegram, or telecopy, or in writing delivered by hand or
mail and shall be conclusively deemed to have been received if delivered or attempted to be
delivered by United States first class mail, return receipt requested, postage prepaid, addressed
to the party for whom it is intended at its Notice Address.
10.6 Mortiaiee' s Riiht to Pay and Perform. If Mortgagor shall fail to duly payor
perform any of the Obligations required by this Mortgage, then at any time thereafter without
notice to or demand upon Mortgagor, and without waiving or releasing any right, remedy, or
power of Mortgagee, and without releasing any of the Obligations or any Default, Mortgagee may
payor perform such Obligation for the account of and at the expense of Mortgagor, and shall, to
the extent permitted by law, have the right to enter and to authorize others to enter upon the
Mortgaged Property for such purpose and to take all such action thereon and with respect to the
Mortgaged Property as may be necessary or appropriate for such purpose. All reasonable
payments made and all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Mortgagee, together with interest thereon at the Default Rate from
the date incurred by Mortgagee shall be secured by this Mortgage and shall be due and payable
by Mortgagor immediately, whether or not there be notice, demand, an attempt to collect same,
or suit pending.
10.7 Covenants Runnini With the Land. All covenants contained in this Mortgage shall
be binding on the Mortgagor and shall run with the Land.
10.8 Successors and Assiins. All of the terms of this Mortgage shall apply to and be
binding upon, and inure to the benefit of, the heirs, devisees, personal representatives, successors
and assigns of Mortgagor and Mortgagee, respectively, and all persons claiming under or through
them. Mortgagor acknowledges that Monroe County Industrial Development Authority will
assign this First Union National Bank.
10.9 Invalidity. If anyone or more of the provisions contained in this Mortgage is
declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such
provision or portion thereof shall be deemed stricken and severed and the remaining provisions
hereof shall continue in full force and effect.
10.10 Modification. No agreement unless in writing and signed by an authorized officer
of Mortgagee and no course of dealing between the parties hereto shall be effective to change,
waive, terminate, modify, discharge, or release in whole or in part any provision of this Mortgage.
No waiver of any rights or powers of Mortgagee or consent by it shall be valid unless in writing
34
signed by an authorized officer of Mortgagee and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
10.11 Applicable Law. This Mortgage shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Florida (excluding the principles
thereof governing conflicts of law), and federal law , in the event federal law permits a higher rate
of interest than State law.
10.12 Replacement of Note. Upon receipt of evidence reasonably satisfactory to
Mortgagor of the loss, theft, destruction or mutilation of the Note, or any amendment or
modification thereto, including without limitation any renewal note or additional note, and in the
case of any such loss, theft, or destruction, upon delivery of any indemnity agreement, reasonably
satisfactory to Mortgagor or, in the case of any such mutilation, upon surrender of such mutilated
note, Mortgagor will execute and deliver, in lieu thereof, a replacement Note, identical in form
and substance to the Note and dated as of the date of the Note and upon such execution and
delivery all references in any of the Bond Documents to the Note shall be deemed to refer to the
replacement Note.
10.13 Strict Performance. It is specifically agreed that time is of the essence as to all
matters provided for in this Mortgage and that no waiver of any Obligation hereunder or secured
hereby shall at any time thereafter be held to be a waiver of the Obligations.
10.14 MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM
BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO
THOSE ARISING OUT OF OR RELATING TO THIS MORTGAGE OR ANY RELATED
AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE,
THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND
MEDIATION SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL
CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS MORTGAGE MAY BRING
AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS MORTGAGE
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
10.15 SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
MONROE COUNTY, FLORIDA AND ADMINISTERED BY ENDISPUTE, INC., D/B/A
J.A.M.S./ENDISPUTE, WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S./ENDISPUTE
IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION,
THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING
35
OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING
FOR UP TO AN ADDITIONAL 60 DAYS.
10.16 RESERVATIONS OF RIGHTS. NOTHING IN THIS MORTGAGE SHALL BE
DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
ST A TUTES OF LIMIT A TION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
MORTGAGE; OR (ii) BE A WAIVER BY THE MORTGAGEE OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT
ST ATE LAW; OR (iii) LIMIT THE RIGHT OF THE MORTGAGEE HERETO (A) TO
EXERCISE LAWFUL SELF-HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE
APPOINTMENT OF A RECEIVER. THE MORTGAGEE OR MORTGAGOR MAY
EXERCISE SUCH LAWFUL SELF-HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY,
OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFfER THE PENDENCY OF ANY ARBITRA TION PROCEEDING BROUGHT PURSUANT
TO THIS MORTGAGE. NEITHER THE EXERCISE OF LAWFUL SELF-HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT
TO SUCH REMEDIES.
36
IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
WESLEY HOUSE COMMUNITY
CENTER, INC.
By:
Print Name:
Its President
STATE OF FLORIDA )
) SS:
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this _ day of June, 2000 by
, as President of Wesley House Community Center, Inc. a Florida not-for-
profit corporation, on behalf of the corporation. He/she produced a driver's license as
identification and did not take an oath.
Notary Public
G:\06208\165\mortgage draft two.wpd
37
I
, .t
EXHffiIT D
BOND PURCHASE AGREEMENT
BOND PURCHASE AND
CONSTRUCTION FINANCING AGREEMENT
$1,000,000
Monroe County Industrial Development Authority
Industrial Development Revenue Bond, Series 2000
(Wesley House Community Center, Inc. Project)
June 15, 2000
The undersigned, First Union National Bank (together with its successors and assigns as
holder of the hereinafter described Bond, the "Bank"), Monroe County Industrial Development
Authority (the "Issuer") and Wesley House Community Center, Inc. (the "Borrower") hereby
enter into this Bond Purchase and Construction Financing Agreement (this "Bond Purchase
Agreement") .
ARTICLE 1 - INTRODUCTORY STATEMENT
Pursuant to a Resolution adopted by the Issuer on June 14, 2000 (the "Resolution"), the
Issuer has authorized the execution and delivery of its Industrial Development Revenue Bond,
Series 2000 (Wesley House Community Center, Inc. Project) in the principal amount of up to
$1,000,000 (the "Bond").
The Bond will be issued pursuant to the Resolution and will be sold to the Bank. The
proceeds of the Bond will be used by the Issuer to make a loan (the "Loan") to the Borrower to
enable the Borrower to fmance and refmance a portion of the costs of the acquisition, renovation
and restoration of a social service center located in Monroe County, Florida, and which is to be
owned and operated by the Borrower, and to pay costs of issuing the Bond.
The Loan will be made pursuant to a Loan Agreement between the Issuer and the Borrower
(the "Agreement"). The Borrower's obligation to repay the Loan will be evidenced by the
Borrower's Promissory Note (the "Note"), and will be secured pursuant to a Mortgage,
Assignment of Rents and Security Agreement from the Borrower to the Issuer (the "Mortgage")
and by certain other collateral instruments.
The Issuer will assign certain of its rights, including its right to Loan Repayments, under
the Agreement, the Note, the Mortgage and other security documents to the Bank, and the Bond
will be payable solely from payments made by the Borrower pursuant to the Agreement and the
Note, and will be secured by, among other things, an Assignment of Loan Agreement, Mortgage,
Promissory Note and Other Collateral to be dated of even date herewith (the "Assignment"), from
the Issuer to the Bank.
Upon the satisfaction of the terms and conditions set forth in this Bond Purchase
Agreement, the Bank shall be obligated to make up to $1,000,000 of Advances to the Issuer,
which Advances shall be loaned by the Issuer to the Borrower pursuant to the Agreement, and
shall be deposited directly with the Borrower by the Bank (subject to the terms hereof). Upon
each such Advance, the principal amount of the Bond and the Note shall be deemed increased by
the amount of such Advance. Pursuant to the Resolution, the Bond and the Note, the principal
amount of the Bond and the Note will be $1,000,000 or such lesser amount as may be Advanced
by the Bank to the Issuer pursuant to this Bond Purchase Agreement.
ARTICLE 2 - DEFINITIONS
Terms used herein in capitalized form and not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement and/or the Mortgage. In addition to the words and
phrases defined elsewhere herein, the following words and phrases shall have the following
meanings herein:
(a) Advance: A payment by the Bank to the Borrower on behalf of the Issuer which
is loaned by the Issuer to the Borrower pursuant to the Agreement. Such payment represents the
purchase price of an increment of the principal amount of the Bond being issued by the Issuer and
purchased by the Bank, the proceeds of which are being loaned by the Issuer to the Borrower.
(b) Aggregate Cost: Aggregate Cost is defined in Section 3.2.
(c) [Reserved] .
(d) Architect: Bender & Associates Architects and any successor Florida licensed
architect employed by the Borrower and approved by Bank in writing for preparation of the Plans
and design and inspection of the Project on behalf of the Borrower.
(e) Architect Contract: The "Abbreviated Form of Agreement Between Owner and
Architect" dated February 19, 1998, between Borrower and Architect.
(f) Bond: The Issuer's Industrial Development Revenue Bond, Series 2000 (Wesley
House Community Center, Inc. Project).
(g) Borrower's Deposit: Is defined in Section 4.8.
(h) Budget: The certified cost breakdown for the Project attached as Exhibit A.
(i) Chair: The Chair of the Issuer or in her absence or inability to act, the Vice Chair
of the Issuer.
(j) Closing Date: June 15, 2000.
2
(k) Commitment Letter: The commitment letter between the Bank and the Borrower
dated February 7, 2000.
(1) Construction Consultant: Any construction consultant engaged by the Bank with
respect to the Project.
(m) Contractor: Hewitt-Kier Construction, Inc.
(n) Draw Request: A properly completed and executed written application by the
Borrower to the Bank in such form as is acceptable to the Bank setting forth the amount of the
Advance requested, together with such schedules, affidavits, releases, waivers, statements,
invoices, bills and other documents, certificates and information required by the Bank.
( 0 ) Final Advance Date: May 31, 2001.
(p) General Contract: The" Abbreviated Standard Form of Agreement Between Owner
and Contractor for Construction Projects of a Limited Scope" dated February 7, 2000 between
the Borrower and the Contractor.
(q) Loan: The Loan by the Issuer to the Borrower, in the maximum amount of up to
$1,000,000.00, but not to exceed, in the aggregate, the payment of the costs incident to the Project
as specified in the Budget, and in no event to exceed the amount of the Bond.
(r) Plans: The plans and specifications for the Project provided to the Bank pursuant
to Section 4.2(x) hereof.
(s) Pledge Agreement: The Pledge Agreement, dated of even date herewith, from the
Borrower to the Bank.
(t) Stored Materials Advance Limit: $10,000.
(u) Title Insurance: The title insurance described in Section 4.2(j).
(v) Title Insurer: Attorneys' Title Insurance Fund, Inc.
ARTICLE 3 - PURCHASE, SALE AND DELIVERY OF BOND; ADVANCES
Section 3.1 On the basis of the representations and agreements contained herein, but
subject to the terms and conditions herein set forth, the Bank hereby agrees to purchase from the
Issuer and the Issuer hereby agrees to sell to the Bank the Bond, dated the date hereof, maturing
on the date, bearing interest at the rate, and having such other details as set forth in the Resolution,
for a purchase price equal to the amount of all Advances hereunder. The Bank's commitment to
fund Advances under this Bond Purchase Agreement shall expire and terminate (a) automatically
on the Final Advance Date; (b) automatically if the Bond is prepaid in full; and (c) at the Bank's
3
option, in the event of a Default. This Bond Purchase Agreement imposes continuing duties upon,
and grants continuing rights to, the parties which shall survive the initial delivery of the Bond, and
which shall continue to and including the date the Bond is paid in full.
Section 3.2 The Bond proceeds are allocated for the costs of the Project shown in the
"Loan Proceeds" column in the Budget attached as Exhibit A. The Budget has been reviewed and
approved by the Borrower and the Borrower represents to the Issuer and the Bank that it includes
all costs and expenses (the "Aggregate Costs ") incident to the Project, after taking into account
the requirements of this Bond Purchase Agreement. The Bank shall not be required to (a) make
any Advance for the purchase of any increment of the Bond, the proceeds of which would be used
for any cost not set forth in the Budget, (b) make any Advance to purchase an increment of the
Bond, the proceeds of which would be used for any line item in the Budget that, when added to
all prior Advances relating to that line item, would exceed the lesser of (i) the actual cost incurred
by the Borrower for such line item or (ii) the sum allocated in the "Loan Proceeds" column for
that line item, ( c) make any Advance to purchase an additional increment of the Bond the proceeds
of which would be used by the Borrower for any contingency line item unless the Bank consents
to such in its sole discretion, or (d) make any Advance to purchase an increment of the Bond the
proceeds of which would be used by the Borrower to pay interest on the Loan. Subject to any
limitation contained elsewhere in the Bond Documents, the Bank: may make Advances to purchase
an increment of the Bond the proceeds of which are allocated by the Borrower to line items in the
Budget for other purposes or in different proportions, as the Bank in its reasonable discretion
deems necessary or advisable; provided however, that if the Bank is requested by the Borrower
to make a reallocation of a hard cost item which would require contractor and lienor notices under
Section 713.3471(2), Florida Statutes, written notice from the Owner to the applicable contractor
and all required lienors, in compliance with Section 713.3471(2), Florida Statutes, and
countersigned by the applicable contractor and any lienors who have provided notices to owner
shall be given prior to any such reallocation. Without prior written approval of the Bank, the
Borrower shall not reallocate Loan funds from one Budget line item to another or otherwise amend
the Budget.
ARTICLE 4 - ADVANCES
Section 4.1. Advances in General. On the date hereof the Bank: shall make an Advance
in the amount of $ for the purpose of . Thereafter, the Borrower shall disburse
the proceeds of all Advances made to the Borrower, for payment of the costs and expenses
specified in the Budget for which the Advances were made, and for no other purpose. Following
receipt and approval of a Draw Request, all supporting documentation and information, and
receipt and approval of a written or verbal report from Construction Consultant, the Bank will
determine the amount of the Advance it will make in accordance with this Bond Purchase
Agreement, the Bond Documents, the Budget, and the following standards:
(a) For construction work, Advances will be made on the basis of ninety percent (90%)
of the costs shown on the application for payment from the contractor, reviewed and approved by
the Bank:, of the work or material in place on the Improvements that comply with the terms of the
4
Bond Documents, minus all previous Advances and all amounts required to be paid by the
Borrower, as described in the columns "Deferred Equity" and "Upfront Equity" of the Budget.
(b) Advances will not be made for building materials or furnishings that are not yet
incorporated into the Improvements (" stored materials") unless the stored materials are in the
Borrower's possession and stored on the Land in a manner satisfactory to the Bank and the
aggregate of Advances for stored materials that have not yet been incorporated into the
Improvements does not exceed the Stored Materials Advance Limit.
(c) At least five (5) Business Days before the requested date of each Advance, the
Borrower shall deliver a Draw Request to the Bank. The Bank shall be obligated to make an
Advance only in an amount approved by the Bank in accordance with the terms of this Bond
Purchase Agreement and the Bond Documents. The Bank shall not be required to make Advances
more frequently than once each calendar month. The Bank shall, only upon the satisfaction of all
applicable conditions of this Bond Purchase Agreement and the Bond Documents, make the
requested Advance to the Borrower on behalf of the Issuer on a Business Day within five (5)
Business Days after such satisfaction. Each Draw Request, and the Borrower's acceptance of any
Advance, shall be deemed to ratify and confirm that all representations and warranties of the
Borrower in the Bond Documents remain true and .correct as of the date of the Draw Request and
the Advance, respectively. The Borrower hereby designates Lois Hybarger and Joseph Barker,
jointly and severally, as having authority to sign all Draw Requests on the Borrower's behalf.
(d) The Borrower shall comply with the Construction Contract Prompt Payment Law
contained in the Florida Construction Lien Law, Chapter 713, Florida Statutes, notwithstanding
the Bank's failure or delay in funding any Draw Requests or the Bank's cessation of funding Draw
Requests in accordance with the terms of this Bond Purchase Agreement.
(e) The Borrower hereby authorizes the Bank to provide written notices to contractors
and lienors providing notices to owner pursuant to Section 713.3471(1)(a), Florida Statutes, and
Section 713.3471(2)(b), Florida Statutes, to the extent such notices are required by law. The
Borrower hereby releases the Bank and waives all claims it may have against the Bank for
damages the Borrower may incur as a result of the Bank's failure to deliver said notices. The
Borrower hereby agrees to provide all required notices to the contractors and alllienors providing
notices to owner in compliance with Section 713.3471(2)(a), Florida Statutes, in a timely fashion.
Section 4.2. The following are conditions precedent to the Bank's obligation to make the
first Advance hereunder:
(a) General: (i) there shall then exist no material Default or any event which, with the
giving of notice or the lapse of time, or both, could become a material Default; (ii) the
representations and warranties of the Issuer, and the Borrower made in the Bond Documents shall
be true and correct; (iii) each subcontract or other contract for labor, materials, services and/or
other work included in a Draw Request shall have been duly executed and delivered by all parties
thereto and shall be effective, and the Bank shall have received a true, complete copy of a fully
executed copy of each such subcontract or other contract as the Bank may have requested; (iv) thed
5
Bond Documents, minus all previous Advances and all amounts required to be paid by the
Borrower, as described in the columns "Deferred Equity" and "Upfront Equity" of the Budget.
(b) Advances will not be made for building materials or furnishings that are not yet
incorporated into the Improvements ("stored materials") unless the stored materials are in the
Borrower's possession and stored on the Land in a manner satisfactory to the Bank and the
aggregate of Advances for stored materials that have not yet been incorporated into the
Improvements does not exceed the Stored Materials Advance Limit.
(c) At least five (5) Business Days before the requested date of each Advance, the
Borrower shall deliver a Draw Request to the Bank. The Bank shall be obligated to make an
Advance only in an amount approved by the Bank in accordance with the terms of this Bond
Purchase Agreement and the Bond Documents. The Bank shall not be required to make Advances
more frequently than once each calendar month. The Bank shall, only upon the satisfaction of all
applicable conditions of this Bond Purchase Agreement and the Bond Documents, make the
requested Advance to the Borrower on behalf of the Issuer on a Business Day within five (5)
Business Days after such satisfaction. Each Draw Request, and the Borrower's acceptance of any
Advance, shall be deemed to ratify and confirm that all representations and warranties of the
Borrower in the Bond Documents remain true and correct as of the date of the Draw Request and
the Advance, respectively. The Borrower hereby designates Lois Hybarger and Joseph Barker,
jointly and severally, as having authority to sign all Draw Requests on the Borrower's behalf.
(d) The Borrower shall comply with the Construction Contract Prompt Payment Law
contained in the Florida Construction Lien Law, Chapter 713, Florida Statutes, notwithstanding
the Bank's failure or delay in funding any Draw Requests or the Bank's cessation of funding Draw
Requests in accordance with the terms of this Bond Purchase Agreement.
(e) The Borrower hereby authorizes the Bank to provide written notices to contractors
and lienors providing notices to owner pursuant to Section 713.3471(1)(a), Florida Statutes, and
Section 713.3471(2)(b), Florida Statutes, to the extent such notices are required by law. The
Borrower hereby releases the Bank and waives all claims it may have against the Bank for
damages the Borrower may incur as a result of the Bank's failure to deliver said notices. The
Borrower hereby agrees to provide all required notices to the contractors and alllienors providing
notices to owner in compliance with Section 713.3471(2)(a), Florida Statutes, in a timely fashion.
Section 4.2. The following are conditions precedent to the Bank's obligation to make the
first Advance hereunder:
(a) General: (i) there shall then exist no material Default or any event which, with the
giving of notice or the lapse of time, or both, could become a material Default; (ii) the
representations and warranties of the Issuer, and the Borrower made in the Bond Documents shall
be true and correct; (iii) each subcontract or other contract for labor, materials, services and/or
other work included in a Draw Request shall have been duly executed and delivered by all parties
thereto and shall be effective, and the Bank shall have received a true, complete copy of a fully
executed copy of each such subcontract or other contract as the Bank may have requested; (iv) the
5
Borrower must have satisfied the conditions required under the Bond Documents; (v) the Borrower
must have paid all amounts required to be paid by the Borrower as described in the column
"Upfront Equity" of the Budget, and (vi) the Borrower must have delivered to the Bank a Draw
Request.
(b) Fees and Expenses. The Bank shall have received any required commitment fee
and the Borrower shall have paid all other fees, costs and expenses then required to be paid
pursuant to this Bond Purchase Agreement and any other Bond Documents.
(c) Financial Statements. The Bank shall have received and approved the financial
statements of the Borrower.
(d) Appraisal. The Bank shall have received and approved a market value appraisal
of the Land and Improvements on an "as-is" and "as-built" basis. The appraiser and appraisal
must be satisfactory to the Bank (including satisfaction of applicable regulatory requirements) and
the appraiser must be engaged directly by the Bank.
(e) Draw Schedule and Budget. The Bank shall have received and approved the
Borrower's proposed cash flow schedule and draw schedule for the Project.
(t) Authorization. The Bank shall have received and approved evidence the Bank
requires of the existence, good standing, authority and capacity of the Issuer and the Borrower to
execute, deliver, and perform the applicable Bond Documents, including but not limited to:
(1) For the Borrower: (i) a copy of its articles of incorporation and by-laws,
and all amendments thereto, a certificate of incumbency of all of its officers who will be
authorized to execute or attest any of the Bond Documents, and a copy of resolutions approving
the Bond Documents and authorizing the transactions contemplated in this Bond Purchase
Agreement; (ii) certificates of existence, good standing and qualification to do business in the
State, issued by the appropriate governmental officials; (iii) a determination letter from the United
States Internal Revenue Service recognizing that the Borrower is an organization described in
Section 501(c)(3) of the Code; and (iv) evidence that the Borrower has all licenses and other
governmental approvals required to conduct its business; and
(2) All certificates, resolutions, and consents reasonably required by the Bank
applicable to the foregoing.
(g) Bond Documents. The Borrower, the Issuer and each other person or entity
required by the Bank shall have duly executed, acknowledged and/or sworn to as required,
recorded or fued, and delivered to the Bank all Bond Documents then required by the Bank, dated
the date of this Bond Purchase Agreement, all in form and content satisfactory to the Bank.
(h) Opinions of Borrower's Counsel. The Bank shall have received, including, but not
limited to, a written opinion, addressed to Bank, from the Borrower's attorney, dated the date of
6
this Bond Purchase Agreement, concerning those matters requested by Bond Counsel, and
including the following:
(1) Authorization: Execution of the Bond Documents has been duly
authorized by all necessary actions of the Borrower and such execution has been performed by the
persons authorized to do so.
(2) Enforceability: The Bond Documents establish binding obligations
of the Borrower.
(3) Litigation: The Borrower is not a party to any pending litigation,
which, if adversely determined, would materially impair its ability to meet its obligations under
the Bond Documents.
(4) Compliance: The Borrower has obtained all requisite consents,
approvals, licenses and permits of the local, regional, state and federal governmental agencies
which have jurisdiction over, and regulations relating to, the construction and operation of the
Improvements. (Certificates from Borrower's architects, engineers and general contractor may
be attached as support for this opinion.)
(5) Zoning: The Mortgaged Property is validly zoned to permit the use
of the Improvements thereon as a social service center. The Improvements comply with the
applicable local zoning regulations, including requirements as to parking, lot size, access and
building set backs.
(6) Land Use: The Improvements are in compliance with the
concurrency requirements and all other applicable requirements of the local comprehensive plan
(as amended pursuant to the Local Government Comprehensive Planning and Land Development
Regulation Act), and with the land development regulations adopted pursuant thereto. The
Borrower has received all necessary land development approvals from the local development
review department.
(7) D.R.I.: The Improvements do not constitute a Development of
Regional Impact as defined in Section 380.06 of the Florida Statutes.
(8) Title Insurance: The title insurance commitment has been duly
issued and is enforceable against the Title Insurer providing such coverage.
(9) 501(c)(3) Status: The Borrower is an organization described in
Section 501(c)(3) of the Code and is not engaged in any unrelated trade or business as defined in
Section 513 of the Code.
(i) Title Insurance. The Bank shall have received and approved one or more title
insurance policies, or a title insurance commitment marked through the Closing Date with all
Schedule B-1 requirements deleted, as the Bank may require, issued by the Title Insurer in the
7
maximum amount of the Bond, insuring that the Mortgage constitutes a valid lien covering the
Borrower's interest in the Land and all improvements thereon, having the priority required by the
Bank and subject only to those exceptions and encumbrances (regardless of rank or priority) the
Bank approves, in a form acceptable to the Bank, and with all "standard" exceptions which can
be deleted, including the exception for matters which a current survey would show, deleted to the
fullest extent authorized under applicable title insurance rules, and the Borrower shall satisfy all
requirements therefor; containing no exception for standby fees or real estate taxes other than
those for 2000 to the extent the same are not then due and payable and endorsed "not yet due and
payable" and no exception for subsequent assessments for prior years; providing full coverage
against mechanics' and materialmens' liens to the extent authorized under applicable title insurance
rules, and the Borrower shall satisfy all requirements therefor; insuring that no violation of the
restrictive covenants shown in the Title Insurance will result in a reversion or forfeiture of title;
insuring that indefeasible or marketable (as coverage is available) fee simple title to the Land and
Improvements is vested in the Borrower; containing such endorsements as the Bank may require,
including, but not limited to, the Form 9 endorsement, the survey endorsement (as available) and
the variable rate endorsement, as are available under applicable title insurance rules, and the
Borrower shall satisfy all requirements therefor; insuring any easements, leasehold estates or other
matters appurtenant to or benefiting the Land and/or the Improvements as part of the insured
estate; insuring the right of access to the Land to the extent authorized under applicable title
insurance rules, and the Borrower shall satisfy all requirements therefor; and containing provisions
acceptable to the Bank regarding Advances after closing. The Borrower shall not have any
interest, direct or indirect, in the Title Insurer (or its agent) or any portion of the premium paid
for the Title Insurance. In addition, the Title Insurance shall be provided on an ALTA Mortgagee
Title Policy, 1970 Version, with Florida modifications and shall not contain a creditors' rights or
bankruptcy exception.
(j) Contracts. The Bank shall have received and approved (i) a list containing the
names and addresses of all existing contractors, architects, engineers, and other suppliers of
services and materials for the Project, their respective contract amounts, and a copy of their
contracts; and (ii) duly executed, acknowledged and delivered originals from each contractor,
architect, engineer, subcontractor, or supplier of services or materials required by the Bank, of
(a) consents or other agreements satisfactory to the Bank and (b) agreements satisfactory to the
Bank subordinating all rights, liens, claims and charges they may have or acquire against the
Borrower or the Property to the rights, liens and security interests of the Bank.
(k) Insurance Policies. The Bank shall have received and approved the insurance
policies initially required by the Bank, pursuant to the Bond Documents, together with evidence
satisfactory to the Bank that all premiums therefor have been paid and that the policies are in full
force and effect.
(1) Environmental Compliance/Report. The Bank shall have received and approved
evidence satisfactory to the Bank that (i) no portion of the Land is "wetlands" under any applicable
law; (ii) the Land does not contain and is not within or near any area designated as a hazardous
waste site by any governmental authority; (iii) neither the Property nor any adjoining property
contains or has ever contained any substance classified as hazardous or toxic (or that is otherwise
8
regulated, such as, without limitation, asbestos, radon and/or petroleum products); (iv) neither
the Property nor any use or activity thereon violates or is or could be subject to any response,
remediation, clean-up or other obligation under any law or governmental requirement pertaining
to health or the environment. Such evidence shall include, without limitation, a written report of
an environmental assessment of the Property, in form and content satisfactory to the Bank,
complying with the Bank's established guidelines, and shall include such additional evidence as
may be required by the Bank. All reports, drafts of reports, and recommendations, whether
written or oral, from such engineering firm shall be made available and communicated to the
Bank.
(m) Soil Reports. The Bank and Construction Consultant shall have received and
approved a soil composition and test boring report and a foundation report satisfactory to the Bank
regarding the Property, by a licensed professional engineer satisfactory to the Bank. Any
recommendations of the engineer in the soil report shall be incorporated into the Plans.
(n) Access, Utilities, and Laws. The Bank shall have received and approved (a)
satisfactory evidence that the Property abuts and has fully adequate direct and free access to one
or more public streets, dedicated to public use, fully installed and accepted by the appropriate
governmental authority, that all costs and expenses of the installation and acceptance thereof have
been paid in full, and that there are no restrictions on the use and enjoyment of such streets which
would adversely affect the Project; (b) letters from the applicable utility companies or
governmental authorities confirming that all utilities necessary for the Improvements are available
at the Property in sufficient capacity, together with evidence satisfactory to the Bank of paid
impact fees or utility reservation deposits or connection fees required to assure the availability of
such services; (c) satisfactory evidence that all applicable zoning ordinances, restrictive covenants
and governmental requirements affecting the Property (including those relating to the Local
Government Comprehensive Planning and Land Development Regulation Act, Section 163.3161,
et. seq., Florida Statutes) permit the use for which the Property is intended and have been or will
be complied with without the necessity of variance and without the Property being a
nonconforming use; (d) evidence satisfactory to the Bank that the Land and Improvements comply
and will comply with all laws and governmental requirements regarding subdivision and platting;
(e) a true and correct copy of a valid building permit for the Improvements, together with all other
permits and approvals necessary for construction of the Improvements; and (t) evidence
satisfactory to the Bank of compliance by the Borrower and the Property, and the proposed
construction, use and occupancy of the Improvements, with such other applicable laws and
governmental requirements as the Bank may request, including all laws and governmental
requirements regarding access and facilities for handicapped or disabled persons including, without
limitation and to the extent applicable, Part V of the Florida Building Construction Standards Act
entitled "Accessibility by Handicapped Persons", Chapter 553, Florida Statutes; The Federal
Architectural Barriers Act (42 U.S.C. ~ 4151 et seq.), The Fair Housing Amendments Act of 1988
(42 U.S.C. ~ 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. ~ 12101 et
seq.), The Rehabilitation Act of 1973 (29 V.S.C. ~ 794) and any applicable State requirements.
(0) Priority. The Bank shall have received and approved (a) evidence satisfactory to
the Bank that prior to and as of the time the Mortgage was filed for record (i) no activity or
9
circumstance was visible on or near the Land which would constitute inception of a mechanic's
or materialman's lien against the Property, (ii) no contract, or memorandum thereof, for
construction, design, surveying, or any other service relating to the Project has been filed for
record in the county where the Property is located; (iii) no mechanic's or materialman's lien claim
or notice, lis pendens, judgment, or other claim or encumbrance against the Property has been
filed for record in the county where the Property is located or in any other public record which
by law provides notice of claims or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to the Bank, reflecting the results of searches made
not earlier than ten (10) days prior to the date of this Bond Purchase Agreement, (i) of the central
and local Uniform Commercial Code records, showing no filings against any of the collateral for
the Loan or against the Borrower otherwise except as consented to by the Bank; and (ii) if required
by the Bank, of the appropriate judgment and tax lien records, showing no outstanding judgment
or tax lien against the Borrower.
(p) Payment and Performance Bonds. The Bank shall have received satisfactory
performance bond(s) and labor and material payment bond(s) as to the General Contract and
Contractor. The bonds shall name the Bank as an additional obligee and shall each be in an
amount equal to 100% of the applicable contract price, and shall otherwise be in form and content,
and issued by sureties, satisfactory to the Bank and in compliance with applicable law.
(q) Paid Tax Receipts. The Bank shall have received and approved satisfactory
evidence (a) that all taxes, standby fees and any other similar charges have been paid, including
copies of receipts or statements marked "paid" by the appropriate authority; and (c) that the Land
is comprised of complete separate tax lot or lots with separate assessments, independent of any
other land or improvements.
(r) [Reserved]
(s) The bank shall have received the approving opinion of Moyle, Flanigan, Katz,
Kolins, Raymond & Sheehan, P.A., Bank Counsel, in form and substance acceptable to the Bank,
and addressing such matters as are required by the Bank, including the following:
(1) The Bond has been duly authorized, executed and delivered by the Issuer,
and constitutes a valid and binding obligation of the Issuer enforceable in accordance with its
terms;
(2) The interest on the Bond is excluded from the gross income of the Bank for
federal income tax purposes and is not an item of tax preference for purposes of the alternative
minimum tax; and
(3) The Bond is exempt from the excise tax on documents and intangible
personal property tax under the laws of the State.
(t) The opinion of the Attorney for the Issuer in form and substance acceptable to the
Bank, and addressing such matters as are required by the Bank, including the following:
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(1) The Issuer is duly organized and validly existing as a political subdivision
of the State;
(2) The Bond and the Bond Documents to which the Issuer is a party were duly
authorized, executed and delivered by the Issuer and are valid and binding upon the Issuer
enforceable against the Issuer in accordance with their terms; and
(3) The Resolution was duly adopted by the Issuer and remains in full force and
effect.
(u) The Bank shall receive all documents and certificates required to be delivered to
the Bank by the Commitment Letter.
(v) On the Closing Date the Borrower shall pay to the Bank, in addition to all other fees
provided for hereunder, a $1, 775.50 construction loan closing fee.
(w) The notice of commencement required by Section 713.13, Florida Statutes, in a
form approved by the Bank, shall be properly executed and recorded (following recordation of the
Mortgage) promptly following the initial Advance, and a certified copy thereof, together with the
building permit, shall be posted in conformance with applicable law at the job site. The notice of
commencement shall designate the Title Insurer and the Bank as additional persons upon whom
notices shall be served.
(x) The Bank shall have received and approved two (2) true and correct copies of all
existing Plans (including the site plan) signed and sealed by the Architect, together with
satisfactory evidence that all applicable governmental authorities, the Borrower, the Architect,
engineer, Contractor and Construction Consultant have approved the same.
(y) The Bank shall have received and approved the Borrower's proposed construction
schedule;
(z) The Bank shall have received evidence satisfactory to it that all governmental approvals
necessary for the lawful construction of the Project have been obtained by the Borrower, including
but not limited to site plan approval (including utilities and landscaping), stormwater drainage,
building (including foundation), wastewater, potable water and driveway permits and any
environmental approvals, except for any notice expressly required to given by the Bank pursuant
to any Loan Document.
(aa) All existing indebtedness of the Borrower shall have paid in full.
(bb) [Reserved]
(cc) In addition to the amounts described in Sections 4.8 and 6.2 hereof, the Borrower
shall have deposited into an established with the Bank, and which shall be pledged as security for
the loan, the amount of at least $65,000.
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4.3. Conditions to All Advances. As conditions precedent to each Advance after the
frrst Advance made pursuant to a Draw Request and in addition to all other requirements contained
in the other Bond Documents, the Borrower must satisfy the following conditions, and deliver to
the Bank evidence of such satisfaction:
(a) All conditions precedent to the frrst Advance have been and continue to be satisfied.
(b) No mechanics or materialmen's lien or other encumbrance shall have been filed and
remain in effect against the Mortgaged Property, and releases or waivers of mechanics' liens and
receipted bills showing payment of all amounts due to all parties who have furnished materials or
services or performed labor of any kind in connection with the Mortgaged Property shall have
been obtained.
(c) The Title Insurance shall have been endorsed and down-dated in a manner
satisfactory to the Bank to increase the coverage by the amount of each Advance through the date
of each such Advance with no additional title change or exception not approved by the Bank.
(d) The Bank shall have received written or verbal certification by the Bank's
Construction Consultant, that to the best of such party's knowledge, information, and belief,
construction is in accordance with the Plans, the quality of the work for which the Advance is
requested is in accordance with the applicable contract, the amount of the Advance requested
represents work in place and stored materials as approved by the Bank based on on-site
observations and the data comprising the Draw Request, the work has progressed as indicated, and
the applicable contractor is entitled to payment of the amount certified.
(e) The Bank shall have received a foundation survey made immediately after, but in
no event later than twenty (20) days after, the laying of the foundation of each building or
structure of the Improvements satisfactory to the Bank and complying with Exhibit "B."
(t) The Bank shall have received within twenty (20) days after the pouring of concrete
for any Improvements, a report satisfactory to the Bank and Construction Consultant of the results
of concrete tests made at the time the concrete is poured.
(g) The Bank shall have received within twenty (20) days after the compaction of any
soil for construction, a report satisfactory to the Bank of the results of soil tests.
(h) As of the date of making such Advance, no event shall have occurred, nor shall any
condition exist, that could have a material adverse effect on the enforceability of the Bond
Documents, be materially adverse to the financial condition of the Borrower, impair the ability
of the Borrower to fulfill its material obligations under the Bond Documents, or otherwise have
any material adverse effect whatsoever on the Property.
(i) The Improvements shall not have been materially damaged and not repaired.
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G) The Borrower shall have made any Borrower's Deposit required by Section 4.8 of
this Bond Purchase Agreement.
(k) The Borrower shall have delivered to the Bank such other information, documents
and supplemental legal opinions as may be reasonably required by the Bank.
(1) With respect to any Advance to pay a contractor, the Bank shall have received
original applications for payment in form approved by the Bank, containing a breakdown by trade
and/or other categories acceptable to the Bank, executed and certified by each contractor and the
Architect, accompanied by invoices, and approved by the Construction Consultant.
(m) Notice to Contractor and Lienors of Hard Cost Reallocation. If the Draw Request
requires an amendment to the Budget or reallocation of hard cost items which would require
contractor and lienor notice under Section 713.3471(2), Florida Statutes, the Borrower, as owner,
shall serve the Contractor and all required lienors, written notice in compliance with Section
713.3471(2), Florida Statutes, and shall deliver such notice to the Bank, countersigned by the
Contractor and any lienors who have provided notices to owner.
(n) The Borrower will pay the Bank a draw fee of $750.00 per Advance.
(0) Before the second Advance, the Borrower shall have provided the Bank an affidavit
of an individual acceptable to the Bank, in form and substance acceptable to the Bank, that the
notice of commencement was recorded and posted at the Project in the manner required by law.
(p) Survey; No Special Flood Hazard. The Bank shall have received two (2) prints
of an original survey of the Property and improvements thereon dated not more than sixty (60)
days prior to the date of this Bond Purchase Agreement (or dated such earlier date, if any, as is
satisfactory to the Title Insurer, but in any event not more than one hundred eighty (180) days
prior to the date of this Bond Purchase Agreement) satisfactory to the Bank and the Title Insurer
and otherwise complying with Exhibit "B", and otherwise in compliance with the requirements
of the Bond Documents, and containing evidence satisfactory to the Bank that none of the
Property is located in a flood hazard area.
Section 4.4. Final Advance for Improvements. In the case of the fmal Draw Request, the
Bank shall have received the following as additional conditions precedent to the requested
Advance:
(a) Certificates from the Borrower's Architect, engineer, Contractor and, if required
by the Bank, from the Construction Consultant, certifying that the Improvements (including any
off-site improvements) have been completed in accordance with, and as completed comply with,
the Plans and all laws and governmental requirements; and the Bank shall have received two (2)
sets of detailed "as built" Plans approved in writing by the Borrower, the Borrower's Architect,
and each contractor.
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(b) Final affidavits (in a form approved by the Bank) from the Borrower's Architect,
engineer, and each contractor certifying that each of them and their subcontractors, laborers, and
materialmen has been paid in full for all labor and materials for construction of the Improvements;
and fmallien releases or waivers (in a form approved by the Bank) by the Borrower's Architect,
engineer, Contractor, and all subcontractors, materialmen, and other parties who have supplied
labor, materials, or services for the construction of the Improvements, or who otherwise might
be entitled to claim a contractual, statutory or constitutional lien against the Property.
(c) The Title Insurance shall be endorsed to remove any exception for mechanics' or
materialmens' liens or pending disbursements, with no additional title change or exception
objectionable to the Bank, and with such other endorsements required by the Bank.
(d) Evidence satisfactory to the Bank that all laws and governmental requirements have
been satisfied, including receipt by the Borrower of all necessary governmental licenses,
certificates and permits (including certificates of occupancy) with respect to the completion, use,
occupancy and operation of the Improvements, together with evidence satisfactory to the Bank that
all such licenses, certificates, and permits are in full force and effect and have not been revoked,
canceled or modified.
(e) Three (3) copies of a final as-built survey satisfactory to the Bank and complying
with Exhibit "B".
(f) A certification by the surety(ies), that issue the bonds pursuant to Section 4. (2)(p)
hereof, that it (they) have approved the final loan disbursement to the Contractor, on AlA Form
G707 or such other form as shall be acceptable to the Bank.
Section 4.5. Direct Advances. The Borrower and the Issuer hereby irrevocably authorize
the Bank (but the Bank shall have no obligation) to Advance funds (which shall be deemed loaned
by the Issuer to the Borrower) directly to itself to pay interest due on the Bond, provided,
however, that no Advance shall be used to pay interest due on the Bond after the date of
completion of the Project. Each such direct Advance shall represent the issuance by the Issuer and
purchase by the Bank of an additional increment of and shall be added to the outstanding principal
balance of the Bond and shall be secured by the Bond Documents. Unless the Borrower pays such
interest from other resources, the Bank may Advance funds pursuant to this Section for interest
payments as and when due. Nothing contained in this Bond Purchase Agreement shall be
construed to permit the Borrower to defer payment of interest on the Loan beyond the date(s) due.
The allocation of Loan proceeds funds in the Budget for interest shall not affect the Borrower's
absolute obligation to pay the same in accordance with the Bond Documents. Upon the occurrence
of and during the continuation of a Default, or if the Bank determines that such action is
reasonably necessary to prevent a Default, the Bank may hold, use, disburse and apply Advances
and the related Loan proceeds and the Borrower's Deposit for payment of any obligation of the
Borrower under the Bond Documents. The Borrower hereby assigns and pledges the proceeds of
the Loan and any Borrower's Deposit to the Bank for such purposes. Upon the occurrence of and
during the continuation of a Default, or if the Bank determines that such action is reasonably
necessary to prevent a Default, the Bank may advance and incur such expenses as the Bank deems
14
necessary for the completion of the Improvements and to preserve the Property, and any other
security for the Bond, and such expenses, even though in excess of the amount of the Bond, shall
be secured by the Bond Documents and shall be payable by the Borrower to the Bank on demand.
The Bank may disburse any portion of any Advance at any time, and from time to time, to persons
other than the Borrower for the purposes specified in this Section and the amount of Advances to
which the Borrower shall thereafter be entitled shall be correspondingly reduced.
Section 4.6. Conditions and Waivers. All conditions precedent to the obligation of the
Bank to make any Advance are imposed hereby solely for the benefit of the Bank, and no other
party may require satisfaction of any such condition precedent or be entitled to assume that the
Bank will refuse to make any Advance in the absence of strict compliance with such conditions
precedent. Any condition precedent to the Bank's obligation to make and Advance contained in
this Bond Purchase Agreement may be waived, in whole or in part, in a specific written waiver
intended for that purpose and signed by the Bank. The Bank shall have the right to approve and
verify the periodic progress, costs incurred by the Borrower, and the estimated costs remaining
to be incurred, after consultation with the Construction Consultant. No Advance shall constitute
an approval or acceptance by the Bank of any construction work, a waiver of any condition
precedent to any further Advance, or preclude the Bank from thereafter declaring the failure of
the Borrower to satisfy such condition precedent to be a Default. No waiver by the Bank of any
condition precedent or obligation shall preclude the Bank from requiring such condition or
obligation to be met prior to making any other Advance or from thereafter declaring the failure
to satisfy such condition or obligation to be a Default.
Section 4.7. Funding. The Borrower shall establish and maintain a special account with
the Bank into which Advances funded directly to the Borrower (but no other funds), and excluding
direct disbursements made to or by the Bank pursuant to this Bond Purchase Agreement, shall be
deposited by the Borrower, and against which checks shall be drawn only for the payment of costs
specified in the Budget, but which special account shall not be used for any other purpose. The
Borrower hereby irrevocably authorizes the Bank to deposit each Advance requested by the
Borrower to the credit of the Borrower in that account, by wire transfer or other deposit.
Advances may also be made, in addition to other methods contemplated herein, at the Bank's
option, by direct or joint check payment to any or all persons entitled to payment for work or
services performed or material furnished in connection with the Project or the Bond, or by having
the proceeds thereof made available to the Title Insurer (or its agent) for disbursement. The Bank
shall not be required to, and has no responsibility to, supervise the proper application or
distribution of funds to third parties.
Section 4.8. The Borrower's Deposit. On or prior to the date hereof the Borrower shall
have deposited into an account established with the Bank the amount of at least $500,000 (the
"Initial Deposit"). If at any time hereafter the Bank reasonably determines that the sum of (i) the
remaining Borrower's Deposit (hereinafter defined), plus (ii) the unissued portion of the Bond,
plus (iii) the amounts of the Aggregate Cost which are scheduled to be paid by the Borrower from
other funds which are available, set aside and committed, to the Bank's satisfaction, is or will be
insufficient to pay the unpaid actual Aggregate Cost, the Borrower shall, within seven (7) days
after written notice from the Bank, deposit with the Bank the amount of the deficiency (the
15
"Additional Deposit," and together with the Initial Deposit, the "Borrower's Deposit"). Such
Borrower's Deposit is hereby pledged as additional collateral on the Loan and Bond, and the
Borrower hereby grants and conveys to the Bank a security interest in all funds so deposited with
the Bank, as additional collateral on the Loan. The Borrower shall have no right of access to the
Borrower's Deposit, except that the Bank shall advance all or a portion of the Borrower's Deposit
prior to the Loan proceeds utilizing the same procedures as apply to the Advancing of Loan
proceeds (that is, in the manner described in this Article 4). Upon a Default, the Bank may (but
shall have no obligation to) apply all or any part of the Borrower's Deposit against the unpaid
Indebtedness in such order as the Bank determines.
Section 4.9. Advertising by the Bank. Subject to compliance with any applicable laws,
at the Bank's request and at the Bank's expense, the Borrower shall erect and maintain on the
Mortgaged Property (as defmed in the Mortgage) one or more advertising signs approved by the
Bank indicating that the construction financing for the Mortgaged Property (as defined in the
Mortgage) has been provided by the Bank.
ARTICLE 5 - REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF THE ISSUER
Section 5.1 The Issuer hereby represents, warrants and agrees as follows:
(a) The Issuer is duly organized and validly existing as an industrial development
authority within the meaning of Chapter 159, Part III, Florida Statutes (the "Act");
(b) The Issuer has full legal right, power and authority to: (i) enter into this Bond
Purchase Agreement and the other Bond Documents to which it is a party, (ii) adopt the
Resolution, (iii) sell, issue and deliver the Bond to the Bank as provided herein, and (iv) carry out
and consummate the transactions contemplated by this Bond Purchase Agreement, the Resolution
and the other Bond Documents, and the Issuer has complied in all respects with the terms of the
Act and with the obligations on its part in connection with the issuance of the Bond contained in
the Resolution, the Bond and the Bond Documents;
(c) The Issuer is not in material breach of or material default under any applicable
constitutional provision, law, or administrative regulation of the State or the United States of
America or any applicable judgment or decree, or any loan agreement, indenture, bond, note, or
material resolution, agreement, or other material instrument to which the Issuer is a party or to
which the Issuer or any of its property or assets is otherwise subject, and no event has occurred
and is continuing which with the passage of time or the giving of notice, or both, would constitute
a default or event of default under any such instrument; and the execution and delivery of the Bond
and the other Bond Documents to which the Issuer is a party and the adoption of the Resolution,
and compliance with the provisions on the Issuer's part contained therein, will not conflict with
or constitute a breach of or default under any constitutional provision, law, administrative
regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement, or
other instrument to which the Issuer is a party or to which the Issuer or any of its property or
assets is otherwise subject, nor will any such execution, delivery, enactment, or compliance result
16
in the creation or imposition of any lien, charge, or other security interest or encumbrance of any
nature whatsoever upon any of the property or assets or under the terms of any such law,
regulation or instrument; and
(d) As of the date hereof, there is no action, suit, proceeding, inquiry or formal
investigation, at law or in equity, before or by any court, government agency, public board or
body, pending or, to the best knowledge of the officials of the Issuer executing this Bond Purchase
Agreement, threatened against the Issuer, affecting or seeking to prohibit, restrain or enjoin the
sale, issuance or delivery of the Bond, or contesting or affecting as to the Issuer the validity or
enforceability of the Act in any respect relating to authorization for the issuance of the Bond, or
contesting the tax-exempt status of interest on the Bond, or contesting the powers of the Issuer or
any authority for the issuance of the Bond, the adoption of the Resolution, or the execution and
delivery by the Issuer of the other Bond Documents to which the Issuer is a party.
ARTICLE 6 - REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE BORROWER
Section 6.1 By its acceptance hereof, the Borrower hereby represents and warrants to
the Bank and the Issuer that as of the date hereof, and by requesting an additional Advance, the
Borrower shall be representing to the Bank and the Issuer that as of the date of such Advance:
(a) The Borrower is a Florida corporation not for profit with full power and authority
to construct, develop, own and operate the Project and the Borrower is (i) an organization
described in Section 501(c)(3) of the Code.
(b) The Borrower has full power and authority to execute and deliver the Bond
Documents to which the Borrower is a party.
(c) The execution, delivery and performance by the Borrower of the Bond Documents
to which the Borrower is a party have each been authorized by all necessary action on the part of
the Borrower and when executed and delivered by the Borrower and the other parties thereto the
Bond Documents to which the Borrower is a party will be in full force and effect and will
constitute legal, valid, binding and enforceable obligations of the Borrower, except that the
enforceability of such Bond Documents is subject to applicable bankruptcy, reorganization,
insolvency and other similar laws affecting creditors' rights and to general principles of equity.
(d) To the best of Borrower's knowledge, the consummation of the transactions
contemplated by the Bond Documents to which the Borrower is a party will not result in the
breach of the provisions of the articles of incorporation of the Borrower, as amended, or any
indenture, mortgage, deed of trust, lease, indebtedness, agreement, instrument, judgment, or any
lien, decree, order, statute, resolution, rule, regulation, plan or other restriction to which the
Borrower is a party or by which it or its property is subject or bound.
17
(e) To the best of Borrower's knowledge, the Borrower is not in material violation of
its articles of incorporation or by-laws, and the Borrower is not in violation of any material
provision of any indenture, mortgage, deed of trust, lease, indebtedness, agreement, instrument,
or any lien, judgment, decree, order, statute, resolution, rule, regulation, plan or other restriction
to which it is a party or by which it or its property is subject or bound, which violation will have
any material adverse effect on the financing contemplated hereby, nor will any such violation
result in any material adverse change in the operations, properties, assets, liabilities or condition
(financial or otherwise) of the Borrower.
(f) There is no pending, or to the best of the Borrower's knowledge threatened, action,
suit, proceeding, inquiry or investigation before or by any court, public board or body against the
Borrower, nor, to the best knowledge of the Borrower, is there any basis therefor, which would
materially adversely affect the transactions contemplated by the Bond Documents or which would
materially adversely affect the Bond or the development, operation or construction of the Project
or which might result in any material adverse change in the operations, properties, assets,
liabilities or condition (fmancial or other) of the Borrower. For purposes of this paragraph, any
litigation or other proceeding is considered to be "pending" only if the Borrower has received
service of process valid under Florida law with respect thereto.
(g) To the Borrower's knowledge, no legislation, ordinance, rule or regulation has been
enacted by any governmental body, department or agency of the State nor has any decision been
rendered by any court of competent jurisdiction in the State which would materially adversely
affect the transactions contemplated by the Bond Documents.
(h) To the Borrower's knowledge, all approvals, consents or orders (other than the
Resolution) of any governmental authority or agency having jurisdiction in the matter which would
constitute a condition precedent to the performance by the Borrower of its duties and obligations
(other than the construction of the Project) under the Bond Documents to which the Borrower is
a party have been obtained and are in full force and effect.
(i) Any certificate signed after the date hereof by any authorized officer or officers of
the Borrower, and delivered to the Bank shall be deemed a representation and warranty by the
Borrower to the Bank and the Issuer as to the truth in all material respects of the statements
contained in the certificate.
(j) There is no default on the part of the Borrower pursuant to the Commitment Letter
and all obligations of the Borrower required thereby to have been satisfied as of the date hereof
have been satisfied or waived by the Bank.
(k) All material representations and material warranties of the Borrower in the Bond
Documents are true and correct.
Section 6.2 The Borrower shall establish an account with the Bank, which account shall
be subject to a security interest in favor of the Bank established pursuant to the Pledge Agreement,
and into which the Borrower shall deposit any and all amounts collected by the Borrower from its
18
capital campaign (that is, all gifts, grants and donations that are unrestricted or available to pay
costs of the Project or debt service on the Loan). Amounts on deposit in such account may not
be used by the Borrower for any purpose other than (i) to pay principal and interest of the Loan
(including prepayments requested by the Borrower), or (ii) prior to the issuance of a certificate
of occupancy for the Project, used to satisfy all or a portion of the Borrower's required equity
investment pursuant to Section 4.8 hereof or to pay the cost of Bank-approved change orders.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF THE BANK
Section 7.1 The Bank represents that it is duly authorized to execute and deliver this
Bond Purchase Agreement, and that upon execution and delivery of this Bond Purchase Agreement
by the other parties hereto, this Bond Purchase Agreement shall constitute a legal, valid and
binding agreement of the Bank enforceable in accordance with its terms.
ARTICLE 8 - GENERAL TERMS
Section 8.1 The following shall be applicable throughout the period of this Bond
Purchase Agreement or thereafter as provided herein:
(a) Borrower and Issuer not Bank's Agent. Nothing in this Bond Purchase Agreement
or any other of the Bond Documents shall be construed to make the Borrower or the Issuer the
Bank's agent for any purpose whatsoever, or the Borrower or the Issuer and the Bank partners,
or joint or co-venturers.
(b) Bank Not Liable for Damage or Loss. All inspections rendered by or on behalf of
the Bank shall be rendered solely for the protection and benefit of the Bank. Neither the Borrower
nor the Issuer nor other third persons shall be entitled to rely upon such inspections for any
purpose.
(c) Bank Not Obligated to Insure Proper Disbursement of Funds to Third Parties.
Nothing contained in this Bond Purchase Agreement or any of the Bond Documents shall impose
upon the Bank any obligation to oversee the proper use or application of any Advances of funds
made pursuant to this Agreement.
(d) Indemnification from Third Party Claims. The Borrower shall indemnify the Issuer
from any liability, claims or losses resulting from the transaction contemplated hereby, or from
the condition of the Project, whether related to the quality of construction or otherwise, and
whether arising during or after the term of this Bond Purchase Agreement, provided the foregoing
do not arise out of the gross negligence or malfeasance of the Issuer. This provision shall survive
the payment of the Bond and shall continue in full force and effect so long as the possibility of
such liability, claims or losses exists.
19
(e) Rights of Subcontractors, Laborers and Materialmen. In no event shall this
Agreement be construed to make the Bank, the Title Insurer, the Issuer or any agent, officer or
employee thereof liable to the Contractor .or any subcontractors, labormen, materialmen,
craftsmen, or others for labor, materials, or services delivered to the Land or goods fabricated or
delivered for incorporation therein, or for debts or claims accruing or arising to such persons or
parties against the Borrower or the Contractor. It is distinctly understood and agreed that there
is no relation of any type whatsoever, contractual or otherwise, either express or implied, between
the Issuer, the Title Insurer, the Bank, or any of their agents, officers or employees and the
Contractor, any materialman, subcontractor, craftsman, laborer or any other person or entity
supplying any labor, materials or services to the Project or fabricating or delivering goods to be
incorporated therein. No such persons or entities are intended to be third party beneficiaries of
this Bond Purchase Agreement or any document or instrument related to the Bond.
(t) Evidence of Satisfaction of Conditions. The Bank shall, at all times, be free
independently to establish to its good faith and satisfaction, and in its absolute discretion, the
existence or nonexistence of a fact or facts which are disclosed in documents or other evidence
required by the terms of this Bond Purchase Agreement.
(g) Headings. The headings of the articles, sections, paragraphs and subdivisions of
this Bond Purchase Agreement are for the convenience of reference only, and shall not limit or
otherwise affect any of the terms hereof.
(h) Invalid Provisions to Affect No Others. If performance of any provision hereof or
any transaction related hereto is limited by law, then the obligation to be performed shall be
reduced accordingly; and if any clause or provision herein contained operates or would
prospectively operate to invalidate this Bond Purchase Agreement in part, then the invalid part of
said clause or provision only shall be held for naught, as though not contained herein, and the
remainder of this Bond Purchase Agreement shall remain operative and in full force and effect.
(i) Governing Law. The laws of the State of Florida shall govern the interpretation
and enforcement of this Bond Purchase Agreement.
G) Number and Gender. Whenever the singular or plural number, masculine or
feminine or neuter gender is used herein, it shall equally include the others and shall apply jointly
and severally.
(k) Prior Agreement. To the extent necessary, this Bond Purchase Agreement shall be
deemed to be an amendment to the Commitment Letter and in the event of conflict between the
terms of this Bond Purchase Agreement and of the Commitment Letter of any such prior
agreement, the terms of this Bond Purchase Agreement shall govern.
(1) Waiver. If Bank shall waive any provisions hereof, or shall fail to enforce any of
the conditions or provisions of this Bond Purchase Agreement, such waiver shall not be deemed
to be a continuing waiver and shall never be construed as such; and the Bank shall thereafter have
the right to insist upon the enforcement of such conditions or provisions. Furthermore, no
20
provision of this Bond Purchase Agreement shall be amended, waived, modified, discharged or
terminated, except by instrument in writing signed by the parties hereto.
(m) Fees and Expenses. The Borrower agrees to pay all reasonable costs incurred in
connection with the issuance of the Bond, including but not limited to expenses and fees of the
Issuer and its counsel, expenses and costs to effect the authorization, preparation, issuance,
delivery and sale of the Bond, the fees and disbursements of Bank Counsel, the fees and
disbursements of the Bank and its counsel, the expenses and costs for photocopying and delivering
the Bond Documents and all other agreements and documents contemplated hereby, the Title
Insurer's fees and premiums, charges for examination of title to the Land, survey costs, Florida
Documentary Stamp Taxes, Intangible Taxes, if any, recording expenses and the fees of the
Construction Consultant.
(n) Counterparts. This Bond Purchase Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute one
and the same document.
( 0) Attorney's Fees. In the event of any proceeding brought pursuant to any Bond
Document by the Issuer, the Bank or the Borrower, against any of the foregoing, the prevailing
party shall be entitled to recover its attorneys' fees and costs, including in connection with any
appeal.
(p) Mandatory Arbitration. To the extent permitted by law, the parties agree that any
controversy or claim between or among the parties hereto including but not limited to those arising
out of or relating to this Bond Purchase Agreement or any Bond Documents, including any claim
based on or arising from an alleged tort, shall be determined by binding arbitration in accordance
with the Federal Arbitration Act (or if not applicable, the applicable state law), the Rules of
Practice and Procedure for the Arbitration of Commercial Disputes of Judicial Arbitration and
Mediation Services, Inc. (J.A.M.S.), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this Bond Purchase Agreement may bring
an action, including a summary or expedited proceeding, to compel arbitration of any controversy
or claim to which this Bond Purchase Agreement applies in any court having jurisdiction over such
action.
a. Special Rules. The arbitration shall be conducted in Monroe County,
Florida and administered by Endispute, Inc., d/b/a J.A.M.S./Endispute who will appoint an
arbitrator; if J.A.M.S./Endispute is unable or legally precluded from administering the arbitration,
then the American Arbitration Association will serve. All arbitration hearings will be commenced
within 90 days of the demand for arbitration; further, the arbitrator shall only, upon a showing of
cause, be permitted to extend the commencement of such hearing for up to an additional 60 days.
b. Reservations of Rights. Nothing in this Bond Purchase Agreement shall be
deemed to (i) limit the applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in this Bond Purchase Agreement; or (ii) be a waiver by the Bank of any
21
protection afforded to the Bank by 12 U.S.C. Sec. 91 or any substantially equivalent state law;
or (iii) limit the right of the Bank (A) to exercise lawful self-help remedies such as (but not limited
to) setoff, or (B) to foreclose against any real or personal property collateral, or (C) to obtain from
a court provisional or ancillary remedies such as (but not limited to) injunctive relief or the
appointment of a receiver. The Bank may exercise such lawful self-help rights, foreclose upon
such property, or obtain such provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to this Bond Purchase Agreement.
Neither the exercise of lawful self-help remedies nor the institution or maintenance of an action
for foreclosure or provisional or ancillary remedies shall constitute a waiver of the right of any
party, including the claimant in any such action, to arbitrate the merits of the controversy or claim
occasioning resort to such remedies.
No provision in the Bond Documents regarding submission to jurisdiction and/or venue in any
court is intended or shall be construed to be in derogation of the provisions in any Bond Document
for arbitration of any controversy or claim.
FIRST UNION NATIONAL BANK
By:
Its Vice-President
WESLEY HOUSE
CENTER, INC.
COMMUNITY
By:
Its President
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Chair
22
EXHIBIT "A"
BUDGET
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A-I
EXHIBIT "B"
SURVEY REQUIREMENTS
1. Field Note Description. The Survey shall contain a certified metes and bounds
description complying with the following: (i) the beginning point shall be established by a
monument located at the beginning point, or by reference to a nearby monument; (ii) the sides of
the Land shall be described by giving the distances and bearings of each; (iii) the distances,
bearings, and angles shall be taken from an instrument survey by a registered professional
engineer or registered professional land surveyor; (iv) curved sides shall be described by data
including: length of arc, central angle, radius of circle for the arc and chord distance, and
bearing; (v) the description shall be a single perimeter description of the entire Land. If and as
instructed, there shall also be a separate metes and bounds description of one or more constituent
tracts out of the Land; (vi) the description shall include a reference to all streets, alleys, and other
rights-of-way that abut the Land, and the width of all rights-of-way mentioned shall be given the
first time these rights-of-way are referred to; (vii) for each boundary line abutting a street, road,
alley or other means of access, the description must, in calling the boundary line, state that the
boundary line and the right-of-way line are the same; (viii) if the Land has been recorded on a map
or plat as part of an abstract or subdivision, reference to such recording data shall be made; and
(ix) the total acreage and square footage of the Land shall be certified.
2. Lot and Block Description. If the Land consists of one or more complete lots or
blocks included within a properly established recorded subdivision or addition, then a lot and
block description will be an acceptable substitute for a metes and bounds description, provided that
the lot and block description must completely and properly identify the name or designation of the
recorded subdivision or addition and give the recording information therefor.
3. Map or Plat. The Survey shall also contain a certified map or plat clearly showing
the following: (i) the Land; (ii) the relation of the point of beginning of the Land to the monument
from which it is fixed; (iii) all easements, streets, roads, alleys and rights-of-way on or abutting
the Land, showing recording information therefor by volume and page; (iv) if the Land has been
recorded on a map or plat as part of an abstract or subdivision, all survey lines must be shown,
and all lot and block lines (with distances and bearings) and numbers, must be shown; (v) the
established building setback lines, if any, including those by restrictive covenant, recorded plat
and zoning ordinance (identifying the source in each case, by volume and page reference if
applicable); (vi) all easements appurtenant to said Land, with recording information by volume
and page; (vii) the boundary lines of the street or streets abutting the Land and the width of said
streets and the width of the rights-of-way therefor; (viii) all structures and improvements on the
Land (with designation and dimensions of each party wall, if any) with horizontal lengths of all
sides and the relation thereof by distances to (A) all boundary lines of the Land, (B) easements,
(C) established building lines and (D) street lines; (ix) the types of materials comprising the
exterior walls of all buildings; (x) all street addresses of improvements on the Land; (xi) all curb
cuts, driveways, fences, sidewalks, stoops and landscaping; (xii) the number of stories of all multi-
story structures; (xiii) the location, type and size of all visible utility lines and facilities as they
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B-1
service the Land and improvements (sewer, water, gas, electric and telephone); (xiv) all
encroachments and protrusions, if any, from or upon the Land or any improvements thereon or
upon any easement, building setback line or other restricted area, with exact measurements; (xv)
all parking and paved areas, including the number of vehicles that may be parked; (xvi) all
distances, angles and other calls contained in the legal description; (xvii) the location, type and
size of all monuments, and as to each monument, indication whether it was found or placed by the
surveyor; (xviii) the boundaries of any flood hazard area or flood plain area in which any part of
the Land lies, with the map number, date and source (governmental authority) of each flood map
shown; (xix) all surface water bodies or courses; (xx) the date of any revisions subsequent to the
initial survey prepared pursuant to these requirements; (xxi) a legend explaining the meaning of
all symbols used on the plat; and (xxii) the scale of all distances and dimensions on the plat.
4. Certification. The certification for the property description and the map or plat shall
be addressed to the Bank, the Borrower, the Issuer and the Title Insurer, signed by the surveyor
(a registered professional land surveyor or registered professional engineer), bearing current date,
registration number, and seal, and shall be in the following form or its substantial equivalent:
The undersigned hereby certifies to [the Bank, the Borrower, the Issuer and the Title
Insurer] that (a) this survey is true and correct and was made on the ground under my supervision
as per the field notes shown hereon and correctly shows the boundary lines and dimensions and
area of the land indicated hereon and each individual parcel thereof indicated hereon; (b) all
monuments shown hereon actually exist, and the location, size and type of such monuments are
correctly shown; (c) this survey correctly shows the size, location and type of all buildings,
structures, other improvements and visible items on the subject Property; (d) this survey correctly
shows the location and dimensions of all alleys, streets, roads, rights-of-way, easements, building
setback lines and other matters of record of which the undersigned has been advised affecting the
subject Property according to the legal description in such easements and other matters (with
instrument, book, and page number indicated); (e) except as shown, there are no visible (1)
improvements, easements, rights-of-way, party walls, drainage ditches, streams, uses,
discrepancies or conflicts, (2) encroachments onto adjoining premises, streets, or alleys by any
of said buildings, structures, or other improvements, (3) encroachments onto the subject Property
by buildings, structures, or other improvements on adjoining premises, or (4) encroachments on
any easement, building setback line or other restricted area by any buildings, structures or other
improvements on the subject property; (t) the subject property abuts a dedicated public street or
road as shown hereon; and (g) except as shown, no part of the Property is located in a 100-year
Flood Plain or in an identified "flood prone area," as defined pursuant to the Flood Disaster
Protection Act of 1973, as amended, as reflected by Flood Insurance Rate Map Panel #
dated , which such map panel covers the area in which the Property is situated.
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B-2
EXHmIT E
ASSIGNMENT
PREPARED BY/RETURN TO:
MARK E. RAYMOND, ESQ.
MOYLE, FLANIGAN, KATZ,
KOLINS, RAYMOND & SHEEHAN, P.A.
POST OFFICE BOX 3888
WEST PALM BEACH, FL 33402
[Space above this line reserved for recordini]
ASSIGNMENT OF LOAN AGREEMENT. MORTGAGE. PROMISSORY NOTE
AND OTHER COLLATERAL
This Assignment of Loan Agreement, Mortgage, Promissory Note and Other Collateral
(this "Assignment") is dated _ _, 2000 and is made by Monroe County Industrial
Development Authority, an "authority" within the meaning of Chapter 159, Part III, Florida
Statutes (the "Issuer"). For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Issuer does hereby give, grant, bargain, alien, remise, release, convey,
transfer, assign, confirm, set over, and pledge unto First Union National Bank and its successors
and assigns as registered owners of the hereinafter described Bond (collectively, the "Bank") all
right, title and interest of the Issuer in and to the Loan Agreement, dated _ _, 2000, between
the Issuer and Wesley House Community Center, Inc. (the "Borrower") (the "Loan Agreement")
(except for those certain reserved rights that are set forth in the next sentence), the Note and the
Mortgage (all as hereinafter defmed) (collectively, the "Assigned Documents"), it being the intent
and purpose hereof that the assignment and transfer to the Bank of the payments and other sums
due and to become due and the rights of the Issuer under the Assigned Documents shall be
effective and operative immediately and the Bank shall have the right to collect and receive said
payments and other sums for application in accordance with the provisions hereof and to exercise
all other rights and powers of the Issuer under the Assigned Documents (except for Unassigned
Issuer's Rights) at all times during the period from and after the date of this Assignment until the
Bond (hereinafter defined) shall have been fully paid and discharged. The Issuer specifically
reserves from this assignment the Unassigned Issuer's Rights (as defmed in the Loan Agreement).
This Assignment is made in connection with the issuance by the Issuer of its Industrial
.Development Revenue Bond, Series 2000 (Wesley House Community Center, Inc. Project) in the
aggregate principal amount of $1,000,000 (the "Bond"). The Bond is issued pursuant to a
Resolution adopted by the Issuer on June 14,2000 (the "Resolution"). Proceeds of the Bond have
been loaned by the Issuer to the Borrower pursuant to the Loan Agreement. As evidence of the
loan, the Borrower has issued its Note, dated _ _, 2000 (the "Note") and has executed a
Mortgage, Assignment of Rents and Security Agreement, dated June 15, 2000 (the "Mortgage").
The Mortgage is recorded in Official Records Book _, page _, et seq., Public Records of
Palm Beach County, Florida, and encumbers, among other things, the Borrower's interest in the
Land described on Exhibit "A" hereto. This Assignment is given in order to secure the payment
of the principal of and interest on the Bond.
The Bank may take or release other security, may release any party primarily or
secondarily liable for any indebtedness secured hereby, may grant extensions, renewals or
indulgences with respect to such indebtedness, and may apply any other security therefor held by
it to the satisfaction of such indebtedness without prejudice to any of its rights hereunder. It is
further agreed that nothing herein contained and no act done or omitted by the Bank pursuant to
the powers and rights granted to it hereunder shall be deemed to be a waiver by the Bank of its
rights and remedies under the Bond or any Assigned Document, and this Assignment is made and
accepted without prejudice to any of the rights and remedies possessed by the Bank under the
terms thereof. The right of the Bank to collect said indebtedness and to enforce any other security
therefor held by it may be exercised by the Bank either prior to, simultaneously with, or
subsequent to any action taken by it hereunder.
Neither this Assignment nor any action or inaction on the part of the Bank shall, without
its written consent, constitute an assumption on its part of any obligation of the Issuer, nor shall
the Bank have any obligation to present or fue any claim, or to take any other action to collect or
enforce the payment of any amounts which have been assigned to the Bank or to which it may be
entitled under this Assignment at any time or times. No action or inaction on the part of the Bank
shall adversely affect or limit in any way the rights of the Bank under this Assignment or under
the Assigned Documents.
Assuming that the Assigned Documents are in full force and effect for the Borrower, the
Issuer represents and warrants that the Assigned Documents are in full force and effect, and have
not been assigned or encumbered by the Issuer except pursuant to this Assignment. The Issuer
covenants that so long as this Assignment shall remain in effect, it will not assign or encumber to
anyone other than the Bank (or at the direction of the Bank), in whole or in part any of the Loan
Payments (as defined in the Loan Agreement), moneys, claims and rights hereby assigned, and
it will not, without the prior written approval of the Bank, amend, modify or cancel the Assigned
Documents give any consent or waiver or make any acceptance or rejection thereunder or take or
omit to take any action which might result in an alteration or impairment of the Assigned
Documents or this Assignment or any of the rights created by any of such instruments.
The Issuer, at the Borrower's expense, will execute and deliver all such instruments and
take all such action as the Bank may from time to time reasonably request in order to obtain the
full benefits of this Assignment and of the rights and powers hereby created.
The Borrower hereby acknowledges receipt of an executed copy of, and consents to the
execution of this Assignment. The Borrower agrees that it will be bound by the terms and
provisions hereof, and they will payor cause to be paid directly to the Bank, all Loan Payments,
-2-
regardless of any right of set-off or counterclaim or other defense which the Borrower may have
against the Bank or the Issuer, it being the intent hereof that the Borrower shall be absolutely and
unconditionally obligated to pay all such sums under the Assigned Documents.
This Assignment shall be governed by and construed in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, the Issuer, the Bank and the Borrower have caused this
Assignment to be executed this _ _,2000.
FIRST UNION NATIONAL BANK
By:
Its Vice President
WESLEY HOUSE COMMUNITY CENTER, INC.
By:
Its President
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Chair
-3-
STATE OF FLORIDA )
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this _ day of June, 2000, by
Nora Kent as Vice-President of First Union National Bank, and
L he/she is personally known to me, OR
_ has produced as identification.
Notary Public
(NOT ARY ST AMP)
STATE OF FLORIDA )
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this _ day of June, 2000, by
, as President of Wesley House Community Center, Inc., a Florida corporation
not-for-profit, on behalf of the corporation, and he/she has produced a driver's license as
identification.
Notary Public
(NOT ARY ST AMP)
STATE OF FLORIDA )
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this _ day of June, 2000, by
as Chair of the Monroe County Industrial Development Authority, and he/she
produced a driver's license as identification.
Notary Public
(NOTARY ST AMP)
-4-
EXHIBIT F
ENVIRONMENT AL INDEMNITY
ENVIRONMENTAL INDEMNITY AGREEMENT
This Agreement, which is dated as of June 15, 2000 , is executed by Wesley House Community
Center, Inc. ("Borrower") as a condition to, and to induce Monroe County Industrial Development Authority
(the "Issuer") to issue its Industrial Development Revenue Bond, Series 2000 (Wesley House Community
Center, Inc. Project) (the "Bond") and make a loan of the proceeds of the Bond (the "Loan") to Borrower
evidenced or to be evidenced by a Promissory Note of even date herewith made by Borrower payable to the
order of Issuer in the principal face amount of not to exceed $1,000,000, which Loan is secured or to be
secured by a Mortgage, Assignment of Rents and Security Agreement (the "Mortgage") of even date
herewith encumbering certain real and personal property as therein described (collectively, the "Property")
including the land described in Exhibit A which is attached hereto and made a part hereof, and as a condition
to and to induce First Union National Bank (the "Bank") to purchase the Bond. The Bank and the Issuer are
jointly and severally referred to herein as the "Lender". The term "Bond Documents" is used herein as
defined in the Mortgage. This Agreement is one of the Bond Documents.
1. Certain Definitions. As used in this Agreement:
(a) "Environmental Claim" means any investigative, enforcement, cleanup, removal,
containment, remedial or other private or governmental or regulatory action at any time threatened,
instituted or completed pursuant to any applicable Environmental Requirement, against Borrower
or against or with respect to the Property or any condition, use or activity on the Property (including
any such action against Lender), and any claim at any time threatened or made by any person against
Borrower or against or with respect to the Property or any condition, use or activity on the Property
(including any such claim against Lender), relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or in any way arising in connection with any Hazardous
Material or any Environmental Requirement.
(b) "Environmental Requirement" means any Environmental Law, agreement or restriction
(including but not limited to any condition or requirement imposed by any insurance or surety
company), as the same now exists or may be changed or amended or come into effect in the future,
which pertains to health, safety, any Hazardous Material, or the environment, including but not
limited to ground or air or water or noise pollution or contamination, and underground or
aboveground tanks.
(c) "Hazardous Material" means any substance, whether solid, liquid or gaseous which is
listed, defined or regulated as a "hazardous substance", "hazardous waste" or "solid waste", or
pesticide, or otherwise classified as hazardous or toxic, in or pursuant to any Environmental
Requirement; or which is or contains asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum
hydrocarbons; or which causes or poses a threat to cause a contamination or nuisance on the
Property or any adjacent property or a hazard to the environment or to the health or safety of persons
on the Property.
(d) "Environmental Law" means any federal, state or local law, statute, ordinance, code,
rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common law,
and any judicial or agency interpretation of any of the foregoing, which pertains to health, safety,
any Hazardous Material, or the environment (including but not limited to ground or air or water or
noise pollution or contamination, and underground or above ground tanks) and shall include without
limitation, the Solid Waste Disposal Act, 42 V.S.C. 96901 et ~.; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 V.S.C. 99601 et ~.
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("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986
("SARA"); the Hazardous Materials Transportation Act, 49 V.S.C. ~ 1801 et ~.; the Federal Water
Pollution Control Act, 33 V.S.C. ~1251 et ~.; the Clean Air Act, 42 D.S.C. ~7401 et ~.; the
Toxic Substances Control Act, 15 V.S.C. ~2601 et ~.; the Safe Drinking Water Act, 42 V.S.C.
~300f et ~.; the Florida Resource Recovery and Management Act, The Water Quality Assurance
Act of 1983, The Florida Resource Conservation and Recovery Act, the Florida Air and Water
Pollution Control Act, The Florida Safe Drinking Water Act, The Pollution Spill Prevention and
Control Act and any other local, state or federal environmental statutes, and all rules, regulations,
orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing
now exist or may be changed or amended or come into effect in the future.
(e) "On" or "on", when used with respect to the Property or any property adjacent to the
Property, means "on, in, under, above or about".
2. Representations and Warranties. Borrower, after due inquiry and investigation in accordance with
good commercial or customary practices, hereby represents and warrants to Lender, without regard to
whether Lender has or hereafter obtains any knowledge or report of the environmental condition of the
Property, as follows:
(a) During the period of Borrower's ownership or leasing of the Property, the Property has
not been used for industrial or manufacturing purposes, for landfill, dumping or other waste disposal
activities (except for septic system purposes) or operations, for generation, storage, use, sale,
treatment, processing, recycling or disposal of any Hazardous Material, for underground (except for
septic system purposes) or aboveground storage tanks, or for any other use that could give rise to
the release of any Hazardous Material on the Property; to the best of Borrower's knowledge, no such
use of the Property occurred at any time prior to the period of Borrower's ownership of the Property;
and to the best of Borrower's knowledge, no such use on any adjacent property occurred at any time
prior to the date hereof;
(b) to the best of Borrower's knowledge, there is no Hazardous Material, storage tank (or
similar vessel) whether underground or otherwise, sump or well currently on the Property (except
for septic system purposes);
(c) Borrower has received no notice and has no knowledge of any Environmental Claim
regarding the Property or any adjacent property;
(d) the present conditions, uses and activities on the Property do not violate any
Environmental Requirement and the use of the Property which Borrower (and each tenant and
subtenant, if any) makes and intends to make of the Property complies and will comply with all
applicable Environmental Requirements; and neither Borrower, nor to Borrower's knowledge, any
tenant or subtenant, has obtained or is required to obtain any permit or other authorization to
construct, occupy, operate, use or conduct any activity on any of the Property by reason of any
Environmental Requirement;
(e) to the best of Borrower's knowledge, the Property does not appear on the National
Priorities List or any other list or database of properties maintained by any local, state or federal
agency or department showing properties which are known to contain or which are suspected of
containing a Hazardous Material; and
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2
(f) Borrower has never applied for and been denied environmental impairment liability
insurance coverage relating to the Property.
3. Violations. Borrower will not cause, commit, permit or allow to continue (i) any violation of any
Environmental Requirement by (A) Borrower or (B) by or with respect to the Property or any use of or
condition or activity on the Property, or (ii) the attachment of any environmental lien to the Property.
Borrower will not place, install, dispose of or release, or cause, permit, or allow the placing, installation,
disposal, spilling, leaking, dumping or release of, any Hazardous Material or storage tank (or similar vessel)
on the Property and will keep the Property free of Hazardous Material.
4. Notice to Lender. Borrower shall promptly deliver to Lender a copy of each report pertaining
to the Property or to Borrower prepared by or on behalf of Borrower pursuant to any Environmental
Requirement or investigation of compliance therewith. Borrower shall immediately advise Lender in writing
of any Environmental Claim or of the discovery of any Hazardous Material on the Property, as soon as
Borrower first obtains knowledge thereof, including a full description of the nature and extent of the
Environmental Claim and/or Hazardous Material and all relevant circumstances.
5. Site Assessments and Information. If Lender shall ever have reason to believe that any Hazardous
Material affects the Property, or if any Environmental Claim is made or threatened, or if a default shall have
occurred under the Bond Documents, or upon the occurrence of the Transition Date (defined below) if
requested by Lender, Borrower will at its expense provide to Lender from time to time, in each case within
30 days after Lender's request, an Environmental Assessment (defined below) made after the date of Lender's
request. As used in this Agreement, the term "Environmental Assessment" means a report (including all
drafts thereof) of an environmental assessment of the Property of such scope (including but not limited to
the taking of soil borings and air and groundwater samples and other above and below ground testing) as
Lender may request, by a consulting firm acceptable to Lender and made in accordance with Lender's
established guidelines. Borrower will cooperate with each consulting firm making any such Environmental
Assessment and will supply to the consulting firm, from time to time and promptly on request, all
information available to Borrower to facilitate the completion of the Environmental Assessment. If
Borrower fails to furnish Lender within ten (10) days after Lender's request with a copy of an agreement with
an acceptable environmental consulting firm to provide such Environmental Assessment, or if Borrower fails
to furnish to Lender such Environmental Assessment within thirty (30) days after Lender's request, Lender
may cause any such Environmental Assessment to be made at Borrower's expense and risk. Lender and its
designees are hereby granted access to the Property at any time or times, upon reasonable notice (which may
be written or oral), and a license which is coupled with an interest and irrevocable, to make or cause to be
made such Environmental Assessments. Lender may disclose to interested parties any information Lender
ever has about the environmental condition or compliance of the Property, but shall be under no duty to
disclose any such information except as may be required by law. Lender shall be under no duty to make any
Environmental Assessment of the Property, and in no event shall any such Environmental Assessment by
Lender be or give rise to a representation that any Hazardous Material is or is not present on the Property,
or that there has been or shall be compliance with any Environmental Requirement, nor shall Borrower or
any other person be entitled to rely on any Environmental Assessment made by Lender or at Lender's request.
Lender owes no duty of care to protect Borrower or any other person against, or to inform them of, any
Hazardous Material or other adverse condition affecting the Property.
6. Remedial Actions.
(a) If any Hazardous Material is discovered on the Property at any time and regardless of
the cause, (i) Borrower shall solely under Borrower's name comply with all applicable
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3
Environmental Requirements to promptly, and at Borrower's sole risk and expense, remove, treat,
and dispose of the Hazardous Material or if such action is prohibited by any Environmental
Requirement, take whatever action is required by any Environmental Requirement, in addition to
taking such other action as is necessary to have the full use and benefit of the Property as
contemplated by the Bond Documents, and provide Lender with satisfactory evidence thereof; and
(ii) ifrequested by Lender, provide to Lender within 30 days of Lender's request fmancial assurance
evidencing to Lender's satisfaction that all necessary funds are readily available to pay the costs and
expenses of the actions required by clause (i) preceding and to discharge any assessments or liens
established against the Property as a result of the presence of the Hazardous Material on the
Property. Within 15 days after completion of such remedial actions, Borrower shall obtain and
deliver to Lender an Environmental Assessment of the Property made after such completion and
confirming to Lender's reasonable satisfaction that all required remedial action as stated above has
been taken and successfully completed and that there is no evidence or suspicion of any
contamination or risk of contamination on the Property or any adjacent property, or of violation of
any Environmental Requirement, with respect to any such Hazardous Material.
(b) Lender may, but shall never be obligated to, remove or cause the removal of any
Hazardous Material from the Property (or if removal is prohibited by any Environmental
Requirement, take or cause the taking of such other action as is required by any Environmental
Requirement) if Borrower fails to promptly commence such remedial actions following discovery
and thereafter diligently prosecute the same to the satisfaction of Lender (without limitation of
Lender's rights to declare a default under any of the Bond Documents and to exercise all rights and
remedies available by reason thereof); and Lender and its designees are hereby granted access to the
Property at any time or times, upon reasonable notice (which may be written or oral), and a license
which is coupled with an interest and irrevocable, to remove or cause such removal or to take or
cause the taking of any such other action.
7. Indemnity.
(a) Borrower hereby agrees to protect, indemnify and hold (i) Lender; (ii) any persons or
entities owned or controlled by, owning or controlling, or under common control or affiliated with
Lender; (iii) any participants in the Loan; (iv) the directors, officers, partners, employees and agents
of Lender, and/or such persons or entities; and (v) the heirs, personal representatives, successors and
assigns of each of the foregoing persons or entities (each an "Indemnified Party") harmless from and
against, and, if and to the extent paid, reimburse them on demand for, any and all Environmental
Damages (as hereinafter defined). However, such indemnity shall not apply to a particular
Indemnified Party to the extent that the subject of the indemnification is caused by or arises out of
the negligence or willful misconduct of that particular Indemnified Party. Upon demand by Lender,
Borrower shall diligently defend any Environmental Claim which affects the Property or is made
or commenced against Lender, ,whether alone or together with Borrower or any other person, all at
Borrower's own cost and expense and by counsel to be approved by Lender in the exercise of its
reasonable judgment. In the alternative, at any time Lender may elect to conduct its own defense
through counsel selected by Lender and at the cost and expense of Borrower.
(b) As used in this Agreement, the term "Environmental Damages" means all claims,
demands, liabilities (including strict liability), losses, damages (including consequential damages),
causes of action, judgments, penalties, fines, costs and expenses (including fees, costs and expenses
of attorneys, paralegals, consultants, contractors, experts and laboratories), of any and every kind
or character, contingent or otherwise, matured or unmatured, known or unknown, foreseeable or
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unforeseeable, made, incurred, suffered, brought, or imposed at any time and from time to time,
whether before or after the Transition Date (as hereinafter defined) and arising in whole or in part
from:
(1) The presence of any Hazardous Material on the Property, or any escape, seepage,
leakage, spillage, emission, release, discharge or disposal of any Hazardous Material on or
from the Property, or release or threatened release of any Hazardous Material to, from or
through the Property, on or before the Transition Date; or
(2) any act, omission, event or circumstance existing or occurring in connection with the
handling, treatment, containment, removal, storage, decontamination, clean-up, transport
or disposal of any Hazardous Material which is at any time on or before the Transition Date
present on the Property; or
(3) the breach of any representation, warranty, covenant or agreement contained in this
Agreement because of any event or condition occurring or existing on or before the
Transition Date; or
(4) any violation on or before the Transition Date, of any Environmental Requirement in
effect on or before the Transition Date, regardless of whether any act, omission, event or
circumstance giving rise to the violation constituted a violation at the time of the occurrence
or inception of such act, omission, event or circumstance; or
(5) any Environmental Claim, or the filing or imposition of any environmental lien against
the Property, because of, resulting from, in connection with, or arising out of any of the
matters referred to in subparagraphs (1) through (4) preceding;
and regardless of whether any of the foregoing was caused by Borrower or Borrower's tenant or
subtenant, or a prior owner of the Property or its tenant or subtenant, or any third party, including
but not limited to (i) injury or damage to any person, property or natural resource occurring on the
Property, including but not limited to the cost of demolition and rebuilding of any improvements on
real property; (ii) the investigation or remediation of any such Hazardous Material or violation of
Environmental Requirement, including but not limited to the preparation of any feasibility studies
or reports and the performance of any cleanup, remediation, removal, response, abatement,
containment, closure, restoration, monitoring or similar work required by any Environmental
Requirement or necessary to have full use and benefit of the Property as contemplated by the Bond
Documents (including any of the same in connection with any foreclosure action or transfer in lieu
thereof); (iii) all liability to payor indemnify any person or governmental authority for costs
expended in connection with any of the foregoing; (iv) the investigation and defense of any claim,
whether or not such claim is ultimately defeated; and (v) the settlement of any claim or judgment.
(c) As used in this Agreement, the term "Transition Date" means the earlier of the following
two dates: (i) the date on which the indebtedness and obligations secured by the Mortgage have
been paid and performed in full and the Mortgage has been released; or (ii) the date on which the
lien of the Mortgage is fully and finally foreclosed or a conveyance by deed in lieu of such
foreclosure is fully and finally effective and possession of the Property has been given to and
accepted by the purchaser or grantee free of occupancy and claims to occupancy by Borrower and
Borrower's heirs, devisees, representatives, successors and assigns; provided that, if such payment,
performance, release, foreclosure or conveyance is challenged, in bankruptcy proceedings or
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otherwise, the Transition Date shall be deemed not to have occurred until such challenge is validly
released, dismissed with prejudice or otherwise barred by law from further assertion.
8. Consideration: Survival: Cumulative Rights. Borrower acknowledges that Lender has relied and
will rely on the representations, warranties, covenants and agreements herein in closing and funding the Loan
and issuing and purchasing the Bond and that the execution and delivery of this Agreement is an essential
condition but for which Lender would not close or fund the Loan or issue or purchase the Bond. The
representations, warranties, covenants and agreements in this Agreement: shall be binding upon Borrower
and Borrower's successors, assigns and legal representatives and shall inure to the benefit of Lender and its
successors, assigns and legal representatives and participants in the Loan; and shall not terminate on the
Transition Date or upon the release, foreclosure or other termination of the Mortgage, but will survive the
Transition Date by four years, the payment in full of the indebtedness secured by the Mortgage, foreclosure
of the Mortgage or conveyance in lieu of foreclosure, the release or termination of the Mortgage and any and
all of the other Bond Documents, any investigation by or on behalf of Lender, any bankruptcy or other debtor
relief proceeding, and any other event whatsoever. Any amount to be paid under this Agreement by
Borrower shall be a demand obligation owing by Borrower (which Borrower hereby promises to pay).
Lender's rights under this Agreement shall be in addition to all rights of Lender under the Bond Documents
or at law or in equity, and payments by Borrower under this Agreement shall not reduce Borrower's
obligations and liabilities under any of the Bond Documents. The liability of Borrower or any other person
under this Agreement shall not be limited or impaired in any way by any provision in the Bond Documents
or applicable law limiting Borrower's or such other person's liability or Lender's recourse or rights to a
deficiency judgment, or by any change, extension, release, inaccuracy, breach or failure to perform by any
party under the Bond Documents, Borrower's (and, if applicable, such other person's) liability hereunder
being direct and primary and not as a guarantor or surety. Nothing in this Agreement or in any other Bond
Document shall limit or impair any rights or remedies of Lender and/or any other Indemnified Party against
Borrower or any other person under any Environmental Requirement or otherwise at law or in equity,
including without limitation any rights of contribution or indemnification.
9. No Waiver. No delay or omission by Lender to exercise any right under this Agreement shall
impair any such right nor shall it be construed to be a waiver thereof. N.o waiver of any single breach or
default under this Agreement shall be deemed a waiver of any other breach or default. Any waiver, consent
or approval under this Agreement must be in writing to be effective.
10. Notices. Unless specifically provided otherwise, any notice for purposes of this Agreement shall
be given in writing or by telex or by facsimile (fax) transmission with overnight express delivery to follow
and shall be addressed or delivered to the respective addresses set forth at the end of this Agreement, or to
such other address as may have been previously designated by the intended recipient by notice given in
accordance with this Section. If sent by prepaid, registered or certified mail (return receipt requested), the
notice shall be deemed effective when the receipt is signed or when the attempted initial delivery is refused
or cannot be made because of a change of address of which the sending party has not been notified; if sent
in any other manner, the notice shall be effective when received. No notice of change of address shall be
effective except upon actual receipt. This Section shall not be construed in any way to affect or impair any
waiver of notice or demand provided in any Loan Document or to require giving of notice or demand to or
upon any person in any situation or for any reason.
11. Invalid Provisions. A determination that any provision of this Agreement is unenforceable or
invalid shall not affect the enforceability or validity of any other provision and a determination that the
application of any provision of this Agreement to any person or circumstance is illegal or unenforceable shall
not affect the enforceability or validity of such provision as it may apply to other persons or circumstances.
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12. Construction. Whenever in this Agreement the singular number is used, the same shall include
plural where appropriate, and vice versa; and words of any gender in this Agreement shall include each other
gender where appropriate. The headings in this Agreement are for convenience only and shall be disregarded
in the interpretation hereof Reference to "person" or "entity" means firms, associations, partnerships, joint
ventures, trusts, limited liability companies, corporations and other legal entities, including public or
governmental bodies, agencies or instrumentalities, as well as natural persons.
13. Applicable Law: Forum. This Agreement is performable in Monroe County, Florida, and the
laws of the State of Florida and applicable United States federal law shall govern the rights and duties of the
parties hereto and the validity, enforcement and interpretation hereof. Borrower hereby irrevocably submits
generally and unconditionally for itself and in respect of its property to the non-exclusive jurisdiction of any
Florida state court, or any United States federal court, sitting in Monroe County, Florida, and to the
non-exclusive jurisdiction of any state or United States federal court sitting in the state in which any of the
Property is located, over any suit, action or proceeding arising out of or relating to this Agreement or the
indebtedness secured by the Mortgage.
14. Execution: Modification. This Agreement has been executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes and all of which constitute,
collectively, one agreement. This Agreement may be amended only by an instrument in writing intended
for that purpose executed jointly by an authorized representative of each party hereto.
15. Entire Agreement.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR.
CONTEMPORANEOUS OR SUBSEOUENT ORAL AGREEMENTS OF mE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed and dated as of the date first written above.
BORROWER:
Wesley House Community Center, Inc.
By:
Name:
Title: President
1300 Truman Avenue
Key West, Florida 33040
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BANK:
First Union National Bank
By:
Name: Nora Kent
Title: Vice President
The Address of Bank is:
225 Water Street
Enterprise Tower, 8th Floor
FL0041
Jacksonville, Florida 32202
ISSUER:
Monroe County Industrial Development Authority
By:
Chair
The Address of Issuer is:
c/o County Attorney
502 Whitehead Street
3rd Floor
Key West, Florida 33040
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 15th day of June, 2000 by
, as President of Wesley House Community Center, Inc., a Florida corporation not-for-
profit, on behalf of the corporation. He/she has produced a driver's license as identification and did not take
an oath.
Notary Public
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STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 15th day of June, 2000 by Nora Kent
as Vice-President of First Union National Bank; a national banking association, on behalf of the association.
She is personally known to me and did not take an oath.
Notary Public
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 15th day of June, 2000, by
, as Chair of the Monroe County Industrial Development Authority.
He/She produced a driver's license as identification and did not take an oath.
Notary Public
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